||Chapter 4. Becoming a Cannabis Criminal
The process of "becoming a cannabis criminal" is considered, here, from the viewpoint of the offender: How does one get caught? How do the police behave? What happens at court? The object of this chapter is to impart the flavor of being on the "receiving end" of the criminal justice machinery. The offenders' subjective experiences provide one perspective of the effect of the activation of the drug law against users of cannabis. The subjects' descriptions and anecdotes about their experiences, and our own observations in court, were detailed in lengthy field notes at the time of the interviews.
A flow chart of the process of becoming a labeled offender, from the initial contact with the police to the culmination of sentencing, is presented in Figure 3. As the elaboration below will show, the shared experience of being arrested and processed for cannabis use followed different channels and involved a variety of circumstances.
CIRCUMSTANCES OF ARREST: How Do People Get Caught?
The drug must be detected and a charge laid before a person joins the faceless multitude of "official statistics." While most users do not receive police attention, an atypical minority do (Le Dain, 1972; Johnson et at., 1977). Prior research on cannabis arrest patterns has been based principally on official police versions of the event which characterize it as a coincidental by-product of routine police investigation (e.g. Morton et al., 1968; Johnson and Bogomolny, 1972). The Le Dain Commission also concluded:
Many, if not most, of the cases of simple possession are uncovered by accident in the course of some other aspect of law enforcement .... If people are careful not to be in possession in public places ... they are relatively immune from detection .... The use of cannabis in private is, generally speaking, beyond the effective reach of law enforcement. (Le Dain, 1972: 289-290)
The offender's account provides an equally important but neglected source of knowledge about drug arrest practices. The nature of the arrest incident will first be examined.
Routine auto or street checks by police were not uncommon for this group of cannabis users (with 62% reporting at least one such experience) but only two subjects acknowledged that cannabis had ever been found and confiscated without a charge. Thus, first detection resulted in arrest for the majority of the respondents. Nearly half of the incidents (48%) occurred in the 4 p.m. to midnight shift. The site of apprehension was most frequently a public place (41%),' followed by a residence (36%), or an automobile being driven on a public thoroughfare (23%). Although the typical arrest was handled by two officers, in one-fifth of cases four or more police were involved. Police were more likely to be in plainclothes rather than in uniform (52% compared to 38%) and, in the balance, both types of officer were present. In half the arrests, the drug was on the person of the accused and in another 5%, was found nearby. In the remainder, a search of a car or residence produced the necessary evidence, for 35% when the accused was present and for 8% in his or her absence.' One subject, a declared nonuser, said the drug was planted on him.3
It has been established that in victimless crimes (i.e. those characterized by voluntary though illegal activity conducted in private), the police take the initiative in enforcing laws because of the absence of a complainant (Schur, 1965; Skolnick, 1966; Black and Reiss, 1970). Perhaps the classic example of pro-active enforcement is the "raid" resulting from undercover investigation. It is not known, however, to what extent the actions of the accused may play a part in attracting police suspicion in more public settings. There is also the possibility that a chance element may contribute when a non-drug related matter is being investigated. Furthermore, the possibility that the police may engage in "stop and search" activity in a deliberate effort to uncover illicit drugs must be considered.
The 95 cannabis offender subjects were asked to describe the situation and their actions just prior to the police intervention. These accounts enabled a classification of four basic types of arrest circumstances. They were termed, in order of frequency, "deliberate drug-seeking" (35%), "general suspicion" (30%), "coincidental" (19%), and "self-victimization" (17%).
The most common type of arrest, termed "deliberate drugseeking," was manifested by the search of a residence with the express purpose of locating drugs (22 cases) and by the stake-out investigation of public settings where drugs seemed likely to be found (11 cases). Some examples are:
The police knocked at the door and showed a warrant. They found the ounce right away and didn't bother searching anymore. One cop said that someone who had been busted supplied our address.
Two plainclothesmen with a search warrant showed up at my apartment. Apparently a girl who lived there previously had been a big dealer, but the police didn't seem too clear on just who was supposed to be at the address. So they searched anyway and as luck would have it, I had some in the place.
We had j ust come out of a bar and got into my car. I took a few moments to put a tape on, and the police car pulled up behind so we couldn't get out and then they searched the car and me The cops told me at the station that that tavern w as a popular place for kids to smoke and theyd go back there that night.
It is possible that in such instances the police were hoping to discover other types of drugs, or quantities large enough to warrant trafficking charges, but the activity was nonetheless drug-seeking and the product was a cannabis possession discharge or conviction. It was not possible to ascertain whether a warrant was shown in residence cases since subjects often reported they had been too upset to notice or ask for one. Two respondents did report requesting to see a warrant but the police did not produce one.
The second most frequent arrest occurrence was typified as "general suspicion" because no motive was apparent beyond the routine exercise of police discretion in patrol situations. The "stop and search" approach was directed towards persons in public locations either in a vehicle (15 cases) or on foot (13 cases). Some illustrations are:
I was in a car with two of my friends. The cop pulled us over and could smell it Iin the car, thoughwe had finished [smoking] some time before. The cop said you can hand it over or go to the station and it'll be hard on you, so I handed it over.
I was waiting for a bus and started thumbing. Two cops going the other way made a U-turn and came back. They checked my pockets and found it.
I was going home on my bicycle about 3 a.m. Two cops pulled me over .... I had even stopped at the last light. First they asked me if the bike was stolen, then if I had any dope. I said no - they found it in my pocket.
The police in these circumstances were not necessarily attempting to find drug offenses, but neither can it be construed that a definite infraction or the visibility of the drug had prompted the intervention. The precipitating factors in this category of arrest therefore must remain uncertain.
In contrast, the third grouping of responses, the "coincidental," was characterized by the explicit investigation of some matter unrelated to drugs. Eighteen such cases were found in the sample, including these examples:
I was driving in my car and was about to roll a joint when the cops pulled me over. They said my trunk was opened. As they came up, they saw me try to put the bag under me.
[Subject was with several people having a picnic in a ravine. One person had a pellet gun, which two other people walking by could have seen and reported to the police. Several police cars arrived. I In the excitement, I forgot what I had in my pocket, then remembered suddenly and must have made some motion to the pocket it was in, because one of the cops came straight over and reached right into the pocket with the leaves.
While the contact with the police was not prompted by an interest in drugs, the possession charge which resulted showed that the police did not overlook the opportunity to lay a charge when it arose.
Almost as frequent as the coincidental circumstances of arrest were those of "selfvictimization," accounting for 16 cases among the respondents. In this category were placed accounts of those "caught in the act" through their injudicious choice of a setting for using the drug. In three cases a citizen complaint (typically a neighbor or passerby) brought the police and in 13 arrests the officers happened to be in the vicinity, Chagrin was often displayed by these "conspicuous consumers," such as:
I was walking home from a pub, smoking a joint. These two cops suddenly stopped me - they must have smelled it as I walked by.
We sat down on a bench in the Mall and a stranger offered us a joint and we passed it around. These guys nearby in army jackets turned out to be cops and searched us.
Although in these cases the police action was directed towards drugs, the user's indiscreet behavior was a crucial factor in detection.
This description of the circumstances of cannabis arrests from the offender's perspective disputes the conventional wisdom about the accidental nature of most such arrests (e.g. Le Dain, 1972; Johnson et a]., 1977; Johnson and Bogomolny, 1972; Goode, 1970; Johnson, 1973; Morton et al., 1968). Only one-fifth of the cases in this study could be placed, without reservation, in the "coincidental" category involving an explicitly non-druginvestigation. In another 30% of arrests, no overt reason was apparent for the intervention drugs or otherwise. In about half of all arrests, then, the police clearly took action for the purpose of drug law enforcement. In some of these instances, the offenders' indiscretions precipitated the intervention, but twice as often the investigation of residences on the basis of tips received, and surveillance tactics of areas frequented by young people, were used to actively seek out users. To conclude that use "in private is, generally speaking, beyond the effective reach of law enforcement" (Le Dain, 1972:289) may be true with respect to the vast majority of undetected use incidents. But, considering that 36% of the 95 sample cases resulted from detection of the drug in private residences, this statement does not accurately reflect the reality of the application of the law.'
The explanation for the unexpectedly high level of police pro-activity against drug users may be found in several interrelated factors. It has been argued that a basic feature of Canada's legal institution is the relative preference given to state agents over the public in matters pertaining to individual rights and civil liberties (Hagan and Leon, 1978). This is illustrated by the admissibility of "illegally" obtained evidence in Canadian courts (Leon, 1977c), as contrasted to the exclusionary rule in the U.S. This fundamental "crime control" orientation is combined with special powers of search and seizure accorded police in drug cases (as described in Chapter 2; also see Solomon, 1980). The importance attached to law enforcement activity as a criterion for advancement in police careers may give rise to incentive to make drug arrests (Manning, 1977; Glaser, 1978). The rise in cannabis use has spawned a fertile area of arrest potential. Quotas for drug arrests are not unknown (Ford and Wachtel, 1976; Manning and Redlinger, 1978).
One check on such activity may be the community's opposition to extensive sanctioning of young and particularly middle class drug users (Le Dain, 1972; Cook, 1969; Glaser, 1971). However, it has been observed that the police prefer to focus publicity on their large scale drug arrests, which the community generally supports, and avoid drawing attention to the routine incidents (Manning, 1977; 1980). The combination of the principle of admissibility of illegally obtained evidence, special police powers of search, availability of potential arrestees, rewards to police for making arrests, and public ignorance of the true extent of minor drug arrests may have produced an enforcement pattern of deliberate cannabis-seeking activity which contributes to a significant proportion of all possession arrests in Canada. Additional research based on other sources of data, such as police accounts and observation studies, is needed to further test the accuracy of this interpretation. The offenders' accounts do suggest, however, that the predominantly "coincidental" explanation of cannabis arrests should not be accepted without closer scrutiny.
POLICE BEHAVIOR: The Conduct of the Arrest
At the scene of the crime, what happened after the cannabis was detected? The police could have decided to issue a summons, set a date for court appearance, and release the accused; this was done in 29% of the cases. The balance of those charged were taken to the police station where they were held for an average of 2 and a half hours. The basis for this detention decision was not investigated, but the summons appeared to be a fairly new option, utilized by police to save time when the amount of cannabis was small and no charge other than possession was contemplated.
Until July 1974, the procedure in Toronto when a possession charge was laid was either to take the accused from the police station directly to police headquarters for fingerprints and photographs or to issue a notice to attend later. According to police sources, an administrative decision was made in mid-1974 to eliminate this procedure for simple possession of cannabis charges. (This was possible because of the hybrid nature of the offense, allowing summary or indictable proceedings.) As this policy change occurred during our data collection period, not all respondents experienced the same form of processing. In total, 13% were taken to police headquarters at once, as part of the arrest incident, and 49% were fingerprinted and photographed some days later. The 38% who did not undergo this procedure included some who reported to headquarters as ordered but on arrival were told it was no longer necessary.
For most who were fingerprinted and photographed, the procedure was described as fairly routine. Some reported the police who dealt with them at headquarters to be "nice and friendly," others that the police made insulting remarks to them: "Are those your teeth?"; and to an admitted homosexual: "Don't get excited just 'cause
I'm holding your hand." A few subjects seemed affected very strongly by this aspect of the processing, such as this woman: "I feel dirty about this, like a prostitute." This diversity of responses may have been related in part to the particular police on duty and their attitude towards offenders, and also to the varying degrees of equanimity of subjects in the face of officialdom.
The conduct of the arrest, in terms of interactions between police and offender, varied greatly. Two types of police actions seemed to be described in especially negative terms by those arrested. The first category involved threats or use of violence by police, either in an attempt to extract leads to dealers (discussed later) or for the apparent purpose of establishing their authority in the situation. Some examples are:
After they found the hash, one of them hit me in the mouth for lying [i.e. saying that he didn't hare any]. I was shaking, I thought I was going to be a punching bag for them.
Four of us were sitting in the car in the parking lot. Two cops came up and yanked the door open and told us to get out. I said 'what the fuck for ... what are you after?' They pulled me out and flung me hard in the back of the squad car. [a female subject]
I was lipping off to the cop [at the station]. He took me into a room by myself and pulled down the blind. He said, 'I could hit you,. 'I said, 'Why don't you?' He said, 'Because you're stupid, smoking this shit.'
In the second category of police actions which generated adverse reactions from offenders, the police conveyed that they "were really out to make a bust," or "out to get promoted," regardless of the amount of cannabis. Some illustrations of this perception of the police are:
I didn't think the police were so bad before, but you've got to be a real prick to bust for one joint.
They had no right to come to my car and question me and search me. Its private property. Ive had the attitude since then that they're out to get someone.
I'm resentful that I was busted for only six Joints. I've heard of police taking it away and not charging.
After the cop busted us, he let us go to the concert. He. seemed elated. He said, 'You wouldn't believe the number of people Ive arrested tonight.'
In contrast, the role of police as agents of the law, when they were viewed as only doing their job and not unfairly singling people out, seemed to be more acceptable to those arrested. In these cases, police appeared to operate in a more disinterested, jocular, or even sympathetic manner:
The cop said it was a chickenshit offense, but the law was there and he had to take me in.
Afterwards [i.e. the search and charging] they drove us back downtown and dropped us off, Joking that, 'Anyone who sees you in the back of our car will think you're narcs. 'I asked why they busted us and one said, 'Politicians pay us to bust you.'
They found the ounce right away ... and then we sat around drinking beer. They seemed a bit apologetic for having to bust us.
The different stances adopted by police when confronting cannabis users, though doubtless affected to some extent by the individual characteristics and manner of the arrestee, suggest that police officers have differing concerns and perhaps skills in defusing a potentially hostile reaction by those arrested.
Another notable feature of the manner in which the police conducted the arrest was the attempt to obtain information from users about sources of cannabis or other illicit drugs. This was reported to be an element of the arrest by one-fifth of those interviewed. Eleven persons said the police offered to drop or reduce charges, and eight others that the police threatened or performed violence for the purpose of obtaining leads to suppliers. Some examples of police efforts to negotiate the charge are:
They asked me who I bought it from and offered to drive me home and only tell my parents, but no charges, if Id tell.
The police said if I brought in someone bigger, they'd let me go.
They kept me in the cells for about 6 and a half hours and questioned me a lot. They said if I named a supplier they'd charge me only with possession [not trafficking].
Some illustrations of actual or threatened use of force are:
At the station, one cop said, 'Tell me where you got it or I'll ram my fist down your throat.'
When I wouldn't go along with this [telling him about supply] the big one grabbed me by the neck and called me a dirty bastard. I thought they were going to beat me up.
Four cops came to our apartment.... One took me and my friend into a bedroom and closed the door. He shoved us around, pushed us up against the wall, had us strip, and searched us ... and then when we were standing facing the wall he placed his hand under my crotch and said, 'You want to lose your jewels?'
In only this last instance and one other did the respondent acknowledge that the name of a "pusher" had been provided to the police in response to these tactics. (In the one case involving several vials of hash oil, and in the other 14 grams of hash, the charges laid were simple possession only.) It has been reported in studies based on the police version of arrests that the accused, not the police, take the initiative in the transaction with police (Morton et al., 1968:1526, footnote 61). This was not supported by the offenders' accounts. However, since these cases represent those brought to court, and successful negotiations may mean the case proceeds no further than initial police contact, the true nature of these interactions may lie somewhere in between the offender and the police version.
The routine application of such tactics as paid informants, bargaining, planting evidence, threats, violence, entrapment, and illegal search in drug law enforcement have been documented in a number of studies in other jurisdictions (Skolnick, 1966; Blum, 1973; de Fleur, 1975; Manning and Redlinger, 1978). Given the extraordinary powers of search granted to Canadian police by the Narcotic Control Act, and the supportive role of the courts towards aggressive drug-seeking practices (Solomon, 1980), it should not be surprising that such incidents occur in a significant minority of cannabis arrests. It should also be noted that the examples of attempted bargaining, threats, and violence by police from the offenders' accounts were associated almost exclusively with plainclothes officers. It seems likely that these were drug squad members, who have a greater stake in generating further drug enforcement activity, than have uniformed police constables.
These descriptions of police behavior during the arrest situation underline the diversity of experience en route to becoming a "criminal." At one extreme, offenders were treated in a civil manner with the minimum of interference: detected, summonsed, no fingerprinting, no violence or threats. The more common form of processing involved some inconvenience, some anxiety: being held at the sation for a relatively short time, an appearance later at headquarters for fingerprinting, tension in confronting the police. At the other extreme were those instances of force, of prolonged detention, of derogatory treatment, in which the state's right to assume control of the individual on the evidence of cannabis possession was brought home very sharply. Such is the heritage of narcotics laws that the police were exercising their legitimate discretion to enforce the prohibition against cannabis. Even acting within legally allowable limits, the options available to police for performing this role would seem to assure differential processing of offenders long before they reach court.
COURT APPEARANCE: Outcome of the Process
Many observers, confronted with "the hurly-burly, vulgar banality of what seems to be happening in the lower courts," (Wiles, 1979:591) alter their formerly abstract notions of how justice is dispensed (also see Feeley, 1980). The impression, formed by this author, of the Toronto court was not at variance with that described in other observational studies. Since our purpose at court was primarily to contact eligible subjects (not to systematically record the courtroom interactions), the reader is directed to these other detailed accounts of the lower courts in operation. The presentation here will deal with three matters of concern to offenders - who among co-accused would plead guilty, when would their ease be heard, and the disposition.
Persons appeared at court charged singly or with coaccused. When more than one person was involved in the arrest situation, and the drug was not detected on anyone's actual person, the question of who would take the blame arose. The issue of "ownership" often had been resolved at the time of detection by one party admitting possession. In some instances, this course apparently had either not been allowed by arresting officers or the co-accused had not settled at the time who would assume possession. This decision usually seemed to be reached by the time the ease went to court. Examples of common reasons given by those who took responsibility for the offense were: "It was my grass," or "He is already in enough trouble." Others made their final choice at court, as when a group of four coaccused stepped outside the courtroom and flipped coins to determine the "loser." Charges against the co-accused were usually withdrawn when one defendant pleaded guilty.
When a case was called, it was necessary to clarify whether it would proceed that day or be delayed (remanded). Those who wished to plead guilty, even on a first appearance on the charge, were usually allowed to do so. This was possible when defendants waived their right to require the prosecution to provide a certificate of analysis, obtained from federal analysts, to prove that the substance involved was actually cannabis. One judge appeared reluctant to permit an accused to admit guilt without such evidence: "Are you asking me to sign my name to a conviction when a man may be innocent - this would be a terrible thing." This-led to questioning about how the accused "knew" the substance was cannabis, as in this exchange:
Judge: How can you be sure it was marijuana? Accused: I had a slight euphoric feeling. Judge: That could be power of suggestion. Accused: It looked like marijuana. Judge: There are many substances that took like marijuana.
For the most part, however, guilty pleas were usually accepted, without further comment, on the basis of an affirmative response to the crown prosecutor's query as to the best knowledge of the accused that the drug was, in fact, cannabis.
Once the accused had been arraigned on the charge and the judge had found him or her "guilty," some discussion ensued before disposition. The police report of the incident - which usually included the form and weight of the cannabis and the place of occurrence - had been entered by the crown prosecutor. There was rarely any elaboration of these "facts," though occasionally the judge commented on the circumstances, for example, "Pretty open about it weren't you?" and, "By having it in a car, you affect more people than yourself." A defense lawyer, if one was acting for the accused, or sometimes the duty counsel, then made some submission about the personal characteristics of the offender, such as age, school attendance, and employment. If no lawyer spoke on the offender's behalf, some judges routinely elicited background information through direct questioning. For instance, one judge sought details of an offender's age and employment and marital status, and then asked, "What is your experience with marijuana?" When the offender hesitated, the judge prompted, "C'mon, that's what we're here for." Any investigation of the background of the accused was usually, though not always, brief, as illustrated by this exchange regarding employment:
Judge: Are youworking? Accused: No, I'm looking. Judge: For how long? Accused: About a month. Judge: What were you doing before? Accused: Working at Judge: How long were you there? Accused: One week. Judge: A whole week? Where before that? Accused: Judge: For how long? Accused: A month, Judge. Before that? A ccused: Judge: How long? Accused: Not long. Judge: That is a pretty spotty work record, isn't it?
Within a very few minutes, sentence was pronounced. For 42.1% of offenders sampled, the outcome was an absolute discharge, and for 33.7% it was a conditional discharge imposing some period of probation. The rest, 24.2%, were convicted and fined. None was imprisoned. The process of official response was over, and the newly labeled "criminals" were free to leave. It was at this point that we approached potentially eligible subjects for an interview. Their responses formed the basis for the presentation of findings in this and subsequent chapters.
CHAPTER 4: Becoming a Cannabis Criminal
1 The 41% of occurrences in public places could be further divided into those which would normally be covered by routine police patrols, such as streets, parks, or fairgrounds (24%), and those in which police presence was likely the result of a summons or a surveillance effort, such as bars, concert halls, restaurants, and adjacent parking lots (17%). Instances of persons apprehended while sitting in a parked car were placed in the latter category, while the moving vehicle category was restricted to those incidents occurring in vehicles being driven on public thoroughfares.
2 When a car or home was searched in absentia, the police sometimes were waiting for the person to return, or even left a handwritten note saying, "telephone the RCMP detachment at
3 According to this subject's account, he had had the misfortune to sit down at a lunch counter next to a stranger who was the subject of surveillance by the drug squad. When he was searched at the station, he said, the officer dropped a cube of hash among his clothes, then pressed for details of the other person's supplier in exchange for not pressing the possession charge against him.
4 In 1977, Prime Minister Trudeau made the following remark in a session with students, "Certainly the spirit of government policy - and it hasn't been passed in law yet - is that if you have a joint and you're smoking it to your private pleasure - you shouldn't be hassled." (Quoted in Bryan, 1979:181).