POT POSSESSION UP, BUT 'INCIDENTAL'

Salvatore Mascia can't remember when he last saw a judge jail someone for
simple possession of marijuana, but the veteran legal-aid lawyer can recall
when the charge was a meaty criminal offence and not "the charade" it is today.

About 15 years ago, lawyers had to mount a "major song and dance"
production, complete with supporting documentation such as school or work
records, to obtain an absolute discharge for a first offender charged with
simple possession, Mascia said.

Now, an absolute discharge for a small quantity of marijuana is "almost
guaranteed," while charges for larger amounts might require a $300
contribution to the province's crime victims' fund, Mascia said yesterday
from his office at the Montreal courthouse.

Others in the justice system described the charge of simple possession of
marijuana yesterday as "an incidental" criminal charge or a tool used
arbitrarily by police to subject the unlucky - often young, disadvantaged
urban males - to a full police interrogation.

A perennially controversial charge, it is again in the spotlight because
federal Justice Minister Martin Cauchon - who, like millions of Canadian
youth smoked pot but was never nabbed, charged or convicted - has mused
that perhaps cannabis use should be decriminalized.

As the dust swirls around the issue, simple possession of marijuana charges
are on the rise, as are - critics say - costs to individuals and the public
purse.

In 1990, 27,344 charges were laid in Canada; last year, there were 49,639
charges, according to Statistics Canada. In Quebec, the number of simple
possession of marijuana charges expanded like a smoker's appetite, going
from 2,221 in 1990 to 9,522 in 2001.

Unlike earlier eras, the charge now "tends to be an incidental charge, not
something that police tend to go out and look for," said Croft Michaelson,
director of strategic prosecution policy for the federal prosecution service.

He cited a small Ottawa-area study that found about 95 per cent of the
charges were related to other offences. For example, marijuana joints found
on a break-and-enter suspect translate into two criminal charges, he said.

Benedict Fischer, one of Canada's leading authorities on issues relating to
cannabis and public policy, has a different take on the "incidental use" of
the charge by police.

"Often officers want to make an arrest for drug possession not because they
want to enforce it but because they want access to that person ... and all
the other things they can only do if an arrest is made," said Fischer, a
lead author of studies for the Centre for Addiction and Mental Health and
the Canadian Centre on Substance Abuse.

A person under arrest can be searched or have their vehicle searched,
Fischer noted.

Factors such as the race and socio-economic background of the suspect often
come into play, and the discretion - or mood - of an individual police
officer is always an element, said Fischer, noting that enforcement varies
widely across Canada.

A veteran Montreal police officer, who asked that his name not be used,
said the charge isn't used as a form of harassment. But young people
smoking dope in a public park are much more likely to be charged than "rich
kids partying in a club," he said.

Most charges arise when suspects are taken to the station for other wrongs
and a search turns up dope.

"We can't flush it down the toilet," he said.

Fischer, who has followed the debate for 30 years, said police might be
more willing to support decriminalization if they maintained discretionary
power and their handy "tool."

They have favoured solutions where "under normal circumstances, they could
just write a ticket (for pot possession) but if they wanted to arrest
someone, they could," he said.

Currently, the simple possession charge may be withdrawn by the crown
prosecutor before it gets to court. A judge may dismiss it or grant an
absolute discharge. A spokesman for Quebec's justice minister said
statistics to show the conviction rate for simple possession charges in
Quebec weren't available.

If the charge is contested in court, many accused still receive an absolute
discharge, meaning they don't have a criminal record, said Michaelson,
echoing Mascia.

Outside of Quebec, a significant number of accused are routed through
"diversion programs" where "low-level offenders in appropriate
circumstances" are asked if they want to perform community service and the
like, Michaelson said.

Once the service is done, the charge is withdrawn, said Michaelson, adding
about 700 offenders used Toronto's cannabis diversion program last year.

Even with the program in place, about $4.8 million of his department's
prosecution budget of about $56 million is spent on simple possession of
marijuana charges, he said.

Fischer's research indicates the bulk of Canada's drug enforcement money is
spent on cannabis possession. The most recent auditor-general's report
found it costs more than $500 million for federal agencies to fight illegal
drugs.

Diversion procedures don't make sense to Fischer. Even if the charge is
ultimately withdrawn, the person's record still indicates an arrest, he
said, and the complex procedure might cost taxpayers more than running it
through the courts.