In an article entitled, Cannabis in Canada, in the June 2018 issue of BarTalk, a background overview and links were provided as to what had happened historically in Canada in relation to cannabis from its “prohibition” in 1923 to its proposed “legalization” in 2018 and 2019 and what was planned.
On October 17, 2018, Canada, using its constitutional “criminal law power,” proclaimed, in force, the Cannabis Act making it legal for a person 18 years and older (subject to provincial/territorial legislation making the age higher such as Quebec to age 21 and all other provinces [except Alberta that remains at 18] to age 19), to possess, in public, up to 30 grams of legal cannabis or equivalents as defined (dried, fresh, oil, plants, and seeds) and each “household” to produce up to four plants of any size, again subject to provincial legislation with Manitoba and Quebec continuing to prohibit such (see details below). Also, a “young person” (defined to be 12 years of age or older but under 18 years of age for purposes of section 8-9 and 12 of the Act) is allowed to possess, in public, up to five grams of dried cannabis or equivalents and share amongst each other. However, it is an offence to provide such “young persons” with cannabis and such minors are subject to provincial “minor in possession” legislation. On October 17, 2019, “edibles containing cannabis and cannabis concentrates” were added to define all the legal “classes of cannabis.”
“Distribution” of all these products for non-medical purposes is delegated to the provinces and territories and each has their own specific legislation. Please go to Canada.ca for specific details and links to each as well as to a significant amount of additional information on cannabis generally.
Access to cannabis for medical purposes continues to be regulated by the federal government under Part 14 of the Cannabis Regulations and “medically approved patients” can continue to either produce for themselves (“PPL”), have a designated producer (“DGL”) grow for them, or purchase online from a federally “licensed producer for medical purposes.” While it is recommended that all “medically approved patients,” under the since repealed Medical Marijuana Access Regulations (MMAR), apply to be registered under the current Act and regulations, those who were medically approved and had a PPL or DGL valid on September 30, 2013, and an authorization to possess valid on March 21, 2014, continue to be grandfathered by the injunction granted in Allard v Canada 2016 FC 236 that continues “until the court orders otherwise.” Those documents remain valid on their face (despite stating to be expired) for the place/location specified and cannot be moved or otherwise changed. If a patient needs to change it, then a new application under the new Act must be made.
There is no provision federally or provincially for medical dispensaries to provide medically approved patients with their medicine and there is an ongoing issue between the Community Safety Unit (“CSU”) in British Columbia charged with
enforcing the provincial laws. Argu-ably they do not have jurisdiction over federal medical dispensaries, only social or recreational dispensaries, under provincial legislation. Two non-profit societies in BC are applying for a federal license to sell for medical purposes only (s.8 (1) and (5) of the Cannabis Regulations) and any exemptions from the existing law if required so they can supply their patients via a physical location instead of only online.
Criminal law prohibitions are contained in Part 1 of the Act “Prohibitions, Obligations and Offenses” Division 1 “Criminal activities” Sections 8 through 15. Conduct that is prohibited “unless authorized under this Act” defines the offences, all of which, unlike the Controlled Drugs and Substances Act (“CDSA”), are hybridized with a variety of summary conviction penalties and a maximum penalty on indictment of 14 years imprisonment. If the Crown elects to proceed by indictment, the maximum 14 years continues to afford an accused the option of a preliminary inquiry but by virtue of s.742.1(c) of the Criminal Code — a Conditional Sentence Order is not available. However, the Ontario Court of Appeal in R v Sharma 2020 ONCA 478, an Indigenous female cocaine import case, declared this section (as well as s.742.1(e)(ii) a prosecution on indictment where the maximum is 10 years involving the import, export, trafficking, or production of drugs) as violating both Section 7 and 15 of the Charter in relation to all offenders with immediate effect. Leave to appeal to the Supreme Court of Canada (“SCC”) was granted January 14, 2021 but no date for hearing is scheduled. Counsel should take note for sentencing purposes in all provinces and be prepared to file Section 7 and 15 challenges pending word from the SCC.
Part 2, s. 51-60 provide for “Ticketable Offences” and using Part XXVII of the Criminal Code to prosecute those that possess up to 50 grams or grow five or six plants (among other offenses), and provide fines generally as a penalty and imprisonment in default of payment as well as other specific provisions. This Part appears to be neglected across the country in favor of prosecutions under provincial legislation with large fines imposed instead of criminal convictions.
Provision is continued in the Cannabis Act for a Drug Treatment Court Program and the Youth Criminal Justice Act applies in relation to all contraventions by youths.
While there are ongoing outstanding cases under the CDSA, readers interested in past and present numbers are advised to access the online Statistics Canada Cannabis Stats Hub for the number and nature of violations being prosecuted under the Cannabis Act compared to the CDSA.
The Quebec Court of Appeal in AG Quebec v Murray-Hall (2021 QCCA 132) recently overturned a Quebec Superior Court ruling (2019 QCCS 3664) that held that the provinces attempt to absolutely prohibit the growing of four plants per household was an invasion of the federal “criminal law” power and not saved by the province’s ancillary powers.
The Court of Appeal held that the provincial law was a valid exercise of provincial authority on the basis of “cooperative federalism” and that “cannabis” fell within the category allowing the application of the “double aspect” doctrine because the same matter has a federal and provincial aspect and the legislative objectives were complementary: combating the harms of consumption, so there was no conflict between the laws as citizens could comply with both.
Each province can lay Provincial Offences Act charges for selling cannabis without a license. Most charges are prosecuted under the Federal Cannabis Act and remain “criminal” in nature. Nova Scotia, New Brunswick, and Quebec almost exclusively use the Federal law. Newfoundland utilizes its ticketing program to a certain degree. Ontario and the Prairies utilize Provincial Offences Act charges as well as Federal charges. Ontario issues tickets for most offences involving possession in a vehicle (typically a fine). In Toronto, most charges are under the Provincial Offences scheme, but outside of Toronto most charges are under the Federal legislation unless in a vehicle.
British Columbia uses a mixture of federal and provincial charges. The CSU is authorized to issue Notices of Administrative Monetary Penalties (“NAMPs”) pursuant to s.94 of the Cannabis Licensing and Control Act of BC. S. 94 authorizes the Director to issue NAMPs equal to the amount of cannabis seized and if a hearing is sought, then the Director is mandatorily required to double the penalty being sought. The constitutionality of this mandatory double penalty is currently subject to a constitutional challenge.