Since the October 17, 2018 legalization of cannabis for recreational use across Canada, there has been a flurry of activity in both legal and illegal cannabis dispensaries, law enforcement, and private citizens using or growing cannabis. This has created a lot of questions for everyone involved as well as some inevitable stumbling blocks.
For everyday Ontarian’s cannabis may now seem commonplace and inconsequential. They may not think twice about getting behind the wheel of their car while they have cannabis in their pocket or potentially under the influence of cannabis. But doing so can readily run you into trouble with the law and facing consequences that can impact your life for years to come.
If you have a question that you haven’t yet seen answered, contact us and we’ll either include it in a future article or send you back a direct response. If you require more timely information such as having already been charged by the police, then you can submit an online consultation request and one of our staff will contact you to assist you. There’s a lot more to discuss about cannabis laws in Ontario.
Let’s take a look!
HOW MUCH EVIDENCE DOES THE COURT NEED THAT I HAD CANNABIS?
This is an interesting issue. Some legal issues may require a very high burden of proof, potentially backed by an expert opinion or laboratory testing and confirmation. However, under the Cannabis Control Act section 25.1 the court may in the absence of any contrary evidence infer that a substance is cannabis if a witness describes it as cannabis (or cannabis by an alternative name):
COURT MAY MAKE INFERENCES
25.1 A court may, in the absence of evidence to the contrary, infer that any substance in question is cannabis from the fact that a witness describes it as cannabis or by a name that is commonly applied to cannabis. 2018, c. 12, Sched. 1, s. 17.
No expert opinion or accredited-laboratory testing required. Just the opinion of a witness. It is then the burden of the defence to provide evidence to the contrary if they can do so.
CAN MY BAND COUNCIL MAKE SPECIAL ARRANGEMENTS WITH THE GOVERNMENT ABOUT CANNABIS?
Yes. The Cannabis Control Act sections 26(1) and 26(2) provide authority for the government to make legal agreements with a band council regarding the “sale, distribution, purchase, possession, consumption, cultivation, propagation or harvesting” of cannabis on a reserve:
AGREEMENT WITH COUNCIL OF THE BAND
26 (1) Subject to subsection (2) and to the approval of the Lieutenant Governor in Council, the Minister may, on behalf of the Crown, enter into arrangements and agreements with a council of the band with respect to the sale, distribution, purchase, possession, consumption, cultivation, propagation or harvesting of cannabis on a reserve.
Same, requirement for agreement with other ministers
(2) If an arrangement or agreement referred to in subsection (1) relates, in whole or in part, to the sale of cannabis, the Minister may only enter into the arrangement or agreement jointly with,
(a) the Minister responsible for the administration of the Ontario Cannabis Retail Corporation Act, 2017;
(b) the Minister of Finance, if the Minister referred to in clause (a) is not the Minister of Finance; and
(c) the Minister responsible for the administration of the Cannabis License Act, 2018. 2018, c. 12, Sched. 1, s. 18.
| Definitions:“council of the band” has the same meaning as in subsection 2 (1) of the Indian Act (Canada); (“conseil de la bande”)“Indian” has the same meaning as in subsection 2 (1) of the Indian Act (Canada); (“Indien”)“reserve” means a reserve as defined in subsection 2 (1) of the Indian Act (Canada) or an Indian settlement located on Crown land, the Indian inhabitants of which are treated by Indigenous and Northern Affairs Canada in the same manner as Indians residing on a reserve. (“réserve”) |
WHAT IS AN “APPROVED YOUTH EDUCATION OR PREVENTION PROGRAM?”
The Cannabis Control Act sections 20 and 23(7) make reference to “an approved youth education or prevention program” in regards to either a police officer or the court referring someone under the age of 19 to such a program. This referral at court may be a condition of probation or in lieu of court penalties being issued against the defendant. Such programs must be approved by the government under the Cannabis Control Act section 27(1):
Youth education, prevention programs
Approval
27 (1) The Minister may approve education or prevention programs pertaining to the use of cannabis or drugs, health and wellbeing, or any other matter the Minister considers appropriate, for the purposes of section 20 and subsection 23 (7).
WHERE CAN I FIND “AN APPROVED YOUTH EDUCATION OR PREVENTION PROGRAM?”
Under section 27(2) of the Cannabis Control Act, the government must maintain a list of approved youth education or prevention programs that is publicly accessible on the Government of Ontario website:
Publication
(2) The Minister shall maintain a list of the programs approved under subsection (1) on a publicly accessible Government of Ontario website.
Programs like the Youth Cannabis Diversion Program cover topics such as:
- Definition Of Cannabis, The Law And What It Means To You
- Demonstrate a Better Understanding of Why Some Youth Use Cannabis and Why Some Youth Don’t
- Assess The Impacts Of Cannabis On Youth
- Describe Ways to Protect Yourself from the Harms of Cannabis
- The Impact of Driving While Impaired by Cannabis
AS A NOVICE DRIVER WHAT DO I NEED TO KNOW ABOUT CANNABIS?
Novice drivers are drivers that have not yet achieved a full driver’s license through Ontario’s graduated licensing program. This includes G1, G2, M1, M2, M2-L or M2-M class licenses. Under Highway Traffic Act section 44.2(1) novice drivers are prohibited from driving while under the influence of drugs as determined by an “approved drug screening equipment” as follows:
Condition on license prohibiting presence of a drug
Novice drivers
44.2 (1) It is a condition of the driver’s license of every novice driver that there be no drug in his or her body, as indicated by approved drug screening equipment, while he or she is driving a motor vehicle on a highway. 2017, c. 26, Sched. 4, s. 5.
WHAT PENALTIES COULD I FACE AS A NOVICE DRIVER IF CONVICTED OF DRIVING UNDER THE INFLUENCE OF CANNABIS?
If, as a novice driver, you are convicted of driving while under the influence of cannabis under Highway Traffic Act section 44.2(1), you would face the following penalties:
Penalty, novice drivers
(4) Every novice driver who contravenes the condition of his or her driver’s license imposed under subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500. 2017, c. 26, Sched. 4, s. 5.
This fine would also be subject to an additional victim fine surcharge.
On top of a record of conviction, increases to insurance costs, and court penalties, you would also be subject to escalated sanctions penalties. These are penalties that are applied to novice drivers under specific conditions such as being convicted of driving under the influence of drugs or alcohol. The exact penalty depends on whether it is the first, second, or third time that you have triggered escalated sanctions penalties:
- For a first offence: your driver’s license is suspended for 30 days.
- For a second offence: your driver’s license is suspended for 90 days.
- For a third offence: you will lose your novice license. You will need to re-apply for your license and start all over, taking all tests and paying all fees. You will also lose any time discount you earned, any time you were credited, and any fees you have paid.
AS A YOUNG DRIVER WHAT DO I NEED TO KNOW ABOUT CANNABIS?
Young drivers are drivers that are 21 years of age or younger. Just like novice drivers, they are prohibited from driving while under the influence of drugs such as cannabis. This law is described under Highway Traffic Act section 44.2(2):
Young drivers
(2) It is a condition of the driver’s license of every young driver that there be no drug in his or her body, as indicated by approved drug screening equipment, while he or she is driving a motor vehicle on a highway. 2017, c. 26, Sched. 4, s. 5.
The penalties for being convicted under HTA section 44.2(2) are as follows:
Same, young drivers
(6) Every young driver who contravenes the condition of his or her driver’s license imposed under subsection (2) is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500 and his or her driver’s license is thereupon suspended for 30 days. 2017, c. 26, Sched. 4, s. 5.
This fine would also be subject to an additional victim fine surcharge. Unlike the court penalties for novice drivers, a young driver faces a mandatory 30 day driver’s license suspension from the court as they are not subject to escalated sanctions penalties.
IS THERE ANY EXEMPTION FOR NOVICE OR YOUNG DRIVER’S UNDER THE INFLUENCE OF CANNABIS?
Yes. Under Highway Traffic Act section 44.2(3) novice and young drivers can not be charged under HTA sections 44.2(1) or 44.2(2) respectively if they are legally authorized to use the drug(s) for medical purposes:
Exception
(3) Subsection (1) or (2), as the case may be, does not apply where a police officer is satisfied that the driver is legally authorized to use a drug or drugs for medical purposes, and has that drug or drugs in his or her body, as indicated by approved drug screening equipment. 2017, c. 26, Sched. 4, s. 5.
CANADA’S REGULATIONS REGARDING CANNABIS
WHERE CAN I FIND THE FULL COPY OF THE CANNABIS ACT?
The Cannabis Act is the federal level law governing cannabis across Canada. The complete text of the Cannabis Act can be found here.
WHERE CAN I FIND THE FULL TEXT OF ONTARIO’S CANNABIS CONTROL ACT?
In Ontario, the main legal rules governing cannabis are detailed within the Cannabis Control Act. The full text of the Cannabis Control Act can be found here.
WHERE CAN I FIND THE FULL TEXT OF ONTARIO’S HIGHWAY TRAFFIC ACT?
In Ontario, a large portion of the laws regarding the driving of vehicles, including impairment by drugs such as cannabis, are found in the Highway Traffic Act (HTA). The full text of Ontario’s Highway Traffic Act can be found here.
WHAT CAN I DO IF I’M CHARGED BY THE POLICE?
Hopefully you have enjoyed our series on cannabis laws in Ontario. This is an exciting new area of law in Ontario that you need to know about in protecting yourself from being charged by the police and facing penalties at court. If you have already been charged by the police, you’re going to need to know what you’ve been charged with, what consequences you’re facing if convicted, and what you can do to protect yourself. Generally the most cost-effective and low-stress way to do this is by hiring a licensed and experienced paralegal. Paralegals know the law and the court process. In many cases, once you have hired a paralegal, you will never need to file a court document or appear at court.
Our friendly staff are here to help you. We offer a no-cost, no-obligation initial consultation to go through your case history and details with you. We can be reached via our toll-free number 1-866-596-9975, by email at help@otdlegal.ca, or by text at 226-240-2480. You can also submit an online consultation request any time of day or night, and one of our staff will contact you during regular business hours to assist you.
DO I HAVE RESPONSIBILITIES AS A LANDLORD?
| Definition:“landlord” means, in respect of a premises, a person who is a lessor, owner or person permitting the occupation of the premises, and includes an owner of a premises that has not been vacated by the tenant despite the expiry of the tenant’s lease or right of occupation. |
Yes. Under the section 13(1) of Cannabis Control Act in Ontario a Landlord has the following legal responsibility:
Landlords
13 (1) No person shall knowingly permit a premises of which he or she is a landlord to be used in relation to an activity prohibited by section 6.
Section 6 of the Cannabis Control Act prohibits the illegal sale or distribution of cannabis:
Unlawful sale, distribution
Sale
6 (1) No person shall sell cannabis, other than an authorized cannabis retailer. 2018, c. 12, Sched. 1, s. 7 (1).
Distribution
(2) No person shall distribute cannabis that is sold, or that is intended to be sold, other than by an authorized cannabis retailer. 2018, c. 12, Sched. 1, s. 7 (2).
This section of law is certainly of concern to any Ontario landlord. What the tenant does in the rented property can result in the direct legal liability of the landlord whether you are the property owner or the person renting out the property on behalf of the owner. There is of course only so much that a landlord can do. You can include the legal terms in a rental agreement prohibiting the illegal sale or distribution of cannabis. Alternately you or your representative could periodically check on the property to see if any illegal activity is occurring. But how much due diligence are you required to undertake? Section 13(2) does provide an exemption to landlords that take reasonable measure to prevent such activity. However, this section of law does not provide any objective standard as to what qualifies as ‘reasonable measures to prevent the activity’:
Defence
(2) It is a defence to a charge under subsection (1) that the defendant took reasonable measures to prevent the activity.
DO I HAVE TO PROVIDE PROOF OF MEDICAL USE TO POLICE?
Yes. If you are asking a police officer for a legal exemption provided for under one of the sections of the Cannabis Control Act, you are required to do so:
Requirement to demonstrate exemption
14 A person who attempts to rely on an exemption under this Act, or on the non-application of any provision of this Act or the regulations, shall, on the demand of a police officer,
(a) provide to the police officer the document or other thing specified by the regulations to confirm the exemption or non-application; or
(b) if no document or other thing is specified by the regulations with respect to the exemption, demonstrate to the police officer’s satisfaction the applicability of the exemption or non-application.
Failing to provide that documentation to the satisfaction of the police officer may result in being charged. Once charged by the police, the onus would then be on you or your legal representative to argue the exemption at court.
CAN I GET INTO LEGAL TROUBLE EVEN AFTER ILLEGALLY SELLING CANNABIS?
| Definition:“proceeds”, in relation to an offence under this Act, means,(a) personal property, other than money, derived in whole or in part, directly or indirectly, from the commission of the offence, and(b) money derived directly or indirectly from the commission of the offence. |
Yes. Whether you sold cannabis illegally or someone else did and you have anything directly or indirectly from that illegal sale that could be considered “proceeds,” you could then be charged under section 15(1) of the Cannabis Control Act:
Possession of proceeds
15 (1) No person shall knowingly possess the proceeds of an offence under this Act.
A key word in this section is “knowingly.” If you know that the money or personal property came directly or indirectly from an offence under the Cannabis Control Act, you are potentially getting into legal trouble for accepting it.
CAN THE POLICE TAKE MY CANNABIS FROM ME?
Yes. Under section 16 of the Cannabis Control Act, the police do have the authority to seize anything (including your cannabis) under the following conditions:
Seizure
16 (1) A police officer may seize any thing, including cannabis, if the police officer has reasonable grounds to believe that,
(a) the thing will afford evidence of an offence under this Act;
(b) the thing was used or is being used in connection with the commission of an offence under this Act, and unless the thing is seized it is likely that it would continue to be used or would be used again in the commission of an offence under this Act; or
(c) the thing is proceeds of an offence under this Act.
So, the first legal basis for seizure could be that your cannabis is being seized as evidence that may be used against you at court. The second legal definition could be that it is necessary to seize the item (such as your cannabis) to prevent it from being used to continue to commit an offence under the Cannabis Control Act. One possible example might be someone under 19 having their cannabis seized to prevent them from further contravening the law that people under the age of 19 can not possess or use cannabis. The third definition is that if the item falls under the definition of “proceeds,” it can be deemed open to seizure. An example here might be if you were paid by receiving an amount of cannabis in compensation for having illegally sold cannabis.
Section 16(2) of the Cannabis Control Act goes on to further define the scope of seizure to also include any packages in which the cannabis was kept:
(2) If an offence appears to have been committed under this Act and a police officer has reasonable grounds to believe, in view of the offence apparently committed and the presence of cannabis, that a further offence is likely to be committed, the police officer may seize the cannabis and any packages in which it is kept.
CAN I EVER GET MY CANNABIS BACK FROM THE POLICE?
Sometimes, yes. However, you would need to apply within 30 days for your cannabis or other seized items to be returned to you. However, the following four conditions would need to be met:
Order of restoration
(3) The Ontario Court of Justice may, on the application of any person made within 30 days after a seizure under subsection (1) or (2), order that the things seized be restored without delay to the applicant if the court is satisfied that,
(a) the applicant is entitled to possession of the things seized;
(b) the things seized are not required as evidence in any proceeding;
(c) continued detention of the things seized is not necessary to prevent the commission of an offence; and
(d) it is unlikely that the things will be forfeited on conviction in accordance with an order made under subsection (6).
However, if you are not legally allow to possess the item (such as cannabis for someone under the age of 19), or, the seized items are needed for evidence at court, or, the items could result in you continuing to break the law (such as cannabis that was being illegally sold that you may continue to illegally sell), or, if the items are unlikely to be forfeited at court upon conviction at court…then you’re not getting it back at least at that time. The court must be satisified on all 4 conditions for your property to be returned to you.
However, if you were legally allowed to possess the item(s) seized but could not meet the three conditions under subsections (b), (c), and (d), then you can eventually have those items returned to you if one of the following two conditions are met under the Cannabis Control Act section 16(4):
(4) If the court is satisfied that an applicant under subsection (3) is entitled to possession of the things seized but is not satisfied as to all of the matters mentioned in clauses (3) (b), (c) and (d), it shall order that the things seized be restored to the applicant,
(a) on the expiration of three months after the date of the seizure, if no proceeding in respect of an offence has been commenced; or
(b) on the final conclusion of any such proceeding.
So long as you were allowed to possess the item(s) and no legal proceeding has commenced against you after 3 months from the date of the seizure, the court can order that your property be returned to you. Or, if you were legally allowed to have the item(s) they can be returned to you at the end of your case at court.
COULD MY CANNABIS BE GONE FOREVER IF THE POLICE SEIZE IT?
Potentially, yes. If the police have lawfully seized your cannabis or property it could be forfeited permanently to the Crown. This occurs under the Cannabis Control Act section 16(5) if you have either not made an application for your property to be returned or if the court heard your application but did not grant an order of restoration:
Forfeiture
(5) If no application has been made for the return of a thing seized under subsection (1) or (2), or an application has been made but on the hearing of the application no order of restoration has been made, the thing seized is forfeited to the Crown.
The court can also order a forfeiture of your property under the following circumstance:
Same
(6) If a person is convicted of an offence under this Act, the court that convicts the person shall order that any thing seized under subsection (1) or (2) in connection with the offence be forfeited to the Crown, unless the court considers that the forfeiture would be unjust in the circumstances.
Sections 16(7) and 16(8) of the Cannabis Control Act do accommodate that a person with an interest in the seized property can apply to the court for relief against its forfeiture. However, the court would need to be satisfied that the relief against forfeiture would be just and meet at least one of the following conditions:
Relief against forfeiture
(7) Any person with an interest in a thing forfeited under this section may apply to the Superior Court of Justice for relief against the forfeiture and the court may make an order providing for any relief that it considers just, including, but not limited to, one or more of the following orders:
- An order directing that the thing or any part of the thing be returned to the applicant.
- An order directing that any interest in the thing be vested in the applicant.
- An order directing that an amount be paid by the Crown to the applicant by way of compensation for the forfeiture.
Same
(8) The court shall not order any relief under subsection (7) unless it is satisfied that the applicant did not, directly or indirectly, participate in, or benefit from, any offence in connection with which the thing was seized.
WHAT SHOULD I DO IF I’M CHARGED BY THE POLICE?
We’ve gone through a lot of questions and answers about cannabis and there’s more to come in next week’s article. Make sure not to miss out on it! If you haven’t yet seen an answer to a question that you have, feel free to submit a blog question and we’ll answer it for you!
If you’ve actually been charged by the police with a cannabis related offence, the best thing to do would be to contact one of our staff so that we can assist you directly. We assist our clients across Ontario and in Quebec every day with charges having to do with the Cannabis Control Act, the Highway Traffic Act, and the Compulsory Automobile Insurance Act. We’re here to help you.
Our friendly staff can assist you with a no-cost, no-obligation initial consultation to go through your case history and details with you. We can be reached via our toll-free number 1-866-596-9975, by email at help@otdlegal.ca, or by text at 226-240-2480. You can also submit an online consultation request any time of day or night and one of our staff will contact you during regular business hours to assist you.
The court can also order a forfeiture of your property under the following circumstance:
Same
(6) If a person is convicted of an offence under this Act, the court that convicts the person shall order that any thing seized under subsection (1) or (2) in connection with the offence be forfeited to the Crown, unless the court considers that the forfeiture would be unjust in the circumstances.
CAN THE POLICE MAKE MY FRIENDS LEAVE THE HOUSE?
Yes. If you are at work or home and if the police officer has reasonable grounds to believe that a relevant cannabis-related law has been broken, they have the authority under the Cannabis Control Act section 17(1) to require one or more people to leave the premises:
Removing persons from premises
17 (1) If a police officer has reasonable grounds to believe that this Act or a prescribed provision of the regulations is being contravened on any premises, the police officer may require that one or more persons vacate the premises.
Potential scenarios where this law might be applied could include an illegal cannabis dispensary where the police may require customers or employees to leave the building. It could also potentially be applied to a private residence where cannabis is being consumed by individuals under the age of 19, where the police direct the under aged individuals to leave.
CAN I REFUSE TO LEAVE IF THE POLICE SAY I HAVE TO VACATE THE PREMISES?
No. If the police have lawfully directed you to leave the premises under their authority provided in Cannabis Control Act section section 17(1), then you must follow that direction. Failing to do so can result in your being charged under Cannabis Control Act section 17(2):
Not to remain after being required to leave
(2) No person shall,
(a) remain on the premises after being required to vacate the premises under subsection (1); or
(b) re-enter the premises on the same day the person is required to vacate, unless a police officer authorizes the person to re-enter.
Section 17(2)(a) is the first requirement that you can not remain on the premises after being directly to leave by the police. Section 17(2)(b) requires that you can no re-enter the premises again that same day unless you have been authorized to do so by a police officer.
IS THERE AN EXEMPTION TO NOT VACATE IF I LIVE THERE?
Yes. Fortunately there is an exemption specifically for that under the Cannabis Control Act section 17(3):
Persons residing in premises
(3) Subsection (1) does not apply in respect of persons residing in the premises.
Essentially, if you live at the location where the alleged offence occurred, the authority provided under section 17(1) for the police to direct you to vacate the premises does not apply. Unless there is another lawful reason for the police to direct you to vacate the premises, you do not need to leave your home under section 17(1).
DO THE POLICE HAVE THE AUTHORITY TO CLOSE MY ILLEGAL CANNABIS STORE?
Yes. If the police issue a charge against a person under a specific set of offences and if the officer also believes that the premises was used as a part of that offence, then the officer has the authority under the Cannabis Control Act section 18(1) to immediately close the premises and remove any people present:
INTERIM CLOSURE OF PREMISES
18 (1) If a charge is laid against a person for a contravention of any of the following provisions, and a police officer has reasonable grounds to believe that a premises was used in the alleged contravention, the police officer may cause the premises to be closed immediately and any persons on the premises to be removed:
- Section 6.
- Paragraph 10 (1) (a) or (c) of the Cannabis Act(Canada).
- Subsection 10 (2) of the Cannabis Act(Canada), in relation to the selling of cannabis contrary to paragraph 10 (1) (a) or (c) of that Act. 2018, c. 12, Sched. 1, s. 13 (1).
Let’s take a look at each of these subsections that could trigger the premises being closed and people being required to leave. Section 6 of the Cannabis Control Act for Ontario relates to unlawful selling of cannabis:
UNLAWFUL SALE, DISTRIBUTION
Sale
6 (1) No person shall sell cannabis, other than an authorized cannabis retailer. 2018, c. 12, Sched. 1, s. 7 (1).
Sections 10(1)(a) and 10(1)(c) of the Cannabis Act of Canada are the federal legal laws prohibiting the illegal sale of cannabis:
10 (1) Unless authorized under this Act, it is prohibited to sell cannabis, or any substance represented or held out to be cannabis, to
- (a)an individual who is 18 years of age or older;
- (b)an individual who is under 18 years of age; or
- (c)an organization.
Under section 10(2) of the Cannabis Act of Canada, it is also illegal to even possess Cannabis for the purpose of selling it under section 10(1). Whether or not you have actually sold the cannabis is not a requirement under this section, simply that the purpose of the cannabis was for it to be sold:
(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of selling it contrary to any of paragraphs (1)(a) to (c).
All three of these sections provide the police with the legal grounds upon which to close a premises if it is being used for the illegal sale of cannabis.
IF THE POLICE CLOSE MY ILLEGAL CANNABIS STORE, WHEN CAN I GO BACK IN?
Unfortunately, it may not be for a while. Under the Cannabis Control Act section 18(3), the police will bar entry to all entrances of the location until the charge(s) before the court have been resolved and a court order lifting that closure has been made:
Barring of entry
(3) If a premises is closed under subsection (1) or (2), a police officer shall bar entry to all entrances to the premises until the final disposition of the charge, subject to an order under subsection (4). 2017, c. 26, Sched. 1, s. 18 (3); 2018, c. 12, Sched. 1, s. 13 (2).
The specific conditions under which the court could order the lifting of that closure of premises are defined under the Cannabis Control Act section 18(4):
Order lifting closure
(4) On application by a person who has an interest in the premises, the Superior Court of Justice may order that entry to the premises cease to be barred, subject to any conditions specified by the court, if,
(a) the court is satisfied that the use to which the premises will be put will not contravene the provision referred to in subsection (1) or (2) to which the charge relates; and
(b) if the applicant is the person charged, the applicant posts a cash bond for $10,000 or such greater amount as the court may specify, for the term specified by the court, to ensure that the premises will not be used in contravention of that section. 2017, c. 26, Sched. 1, s. 18 (4); 2018, c. 12, Sched. 1, s. 13 (3).
There are two scenarios described here under which a person could apply to the court for an order to lift the closure of the premises. The first would be someone who has an interested in the premises (such as the property owner). If the court is satisfied that the premises will not be used for a re-occurrence of the offence, then an order may be issued. If the person applying for the order is the defendant that was charged, they will be required to post a cash bond of at least $10,000 for a term set by the court to ensure that the premises will not be used for another offence.
WHAT HAPPENS TO MY CASH BOND IF I CONTINUE TO ILLEGALLY SELL CANNABIS?
Unfortunately, if you as the defendant have posted a cash bond to have the closure of the premises lifted and are charged under the same legal provision, the court may order that your cash bond be forfeited to the Crown. The authority and terms to do so are provided under the Cannabis Control Act section 18(5):
Forfeiture of bond
(5) If, after an applicant posts a cash bond under clause (4) (b) and before the final disposition of the charge, another charge is laid against the applicant for contravening the same provision, in relation to the same premises, the Superior Court of Justice may, on application, order the forfeiture of the bond to the Crown. 2017, c. 26, Sched. 1, s. 18 (5); 2018, c. 12, Sched. 1, s. 13 (4).
CAN I APPEAL THE FORFEITURE OF MY CASH BOND FOR CONTINUING TO ILLEGALLY SELL CANNABIS?
Unfortunately not. Under section 18(6) of the Cannabis Control Act, appeals are specifically prohibited:
No appeal
(6) No appeal lies from an order made under subsection (5).
Once your cash bond has been forfeited by a court order under section 18(5), the money is permanently gone.
IS THERE ANY EXEMPTION TO A CLOSURE OF PREMISES FOR ILLEGALLY SELLING CANNABIS?
Yes. There is a single exemption. That exemption applies to premises that are used for residential purposes under the Cannabis Control Act section 18(7):
Non-application
(7) This section does not apply with respect to a premises used for residential purposes.
If you were illegally selling cannabis from your home, the police would not have the authority under the Cannabis Control Act section 18 to close your home.
DO I NEED TO GIVE MY PERSONAL INFORMATION TO THE POLICE? CAN THEY ARREST ME?
If a police officer believes that you have contravened a relevant section of cannabis law, you are required to provide your proper name and address to the police officer upon their request. If you refuse to do so, or if the police officer believes that the information you provided is false, they may arrest you without need for a warrant. The authority to do so is provided to the police under Cannabis Control Act section (19):
Arrest without warrant
19 If a police officer finds a person apparently in contravention of this Act or apparently in contravention of a prescribed provision of the regulations and the person refuses to give his or her name and address or the police officer has reasonable grounds to believe that the name or address given is false, the police officer may arrest the person without warrant.
ARE THE POLICE OR COURTS DOING ANYTHING TO IMPROVE YOUTH EDUCATION?
Yes. Under the Cannabis Control Act section 20(1), if the police reasonably believe that a person under 19 years of age has illegally purchased, grown, consumed, or distributed cannabis, the police officer may refer the person to an approved youth education or prevention program:
Youth education, prevention program referrals
20 (1) A police officer who has reasonable grounds to believe that a person who is under 19 years of age has contravened section 10 may refer the person to an approved youth education or prevention program.
This same legal provision is also provided to a prosecutor at court should they decide to stay or withdraw the defendant charge(s). This provision for the Prosecutor to refer the defendant to an approved youth education or prevention program is provided under the Cannabis Control Act section 20(2):
Same
(2) A prosecutor may, in exercising a power to stay a proceeding under subsection 32 (1) of the Provincial Offences Act or a right to withdraw a charge, refer a person who is charged with a contravention of section 10 of this Act to an approved youth education or prevention program.
CAN ANYONE OTHER THAN THE POLICE ENFORCE CANNABIS LAW?
Yes. This is an area that you would have to be careful about. Ontario’s Cannabis Control Act section 21 does provide the ability for the government to specify other persons (or classes of persons) with the powers that can be exercised by the police under this body of law:
Powers of a police officer exercised by others
21 (1) A power that may be exercised under this Act by a police officer, other than a power set out in section 19, may also be exercised by any other person or class of persons designated in writing by the Minister for the purposes of this section. 2018, c. 12, Sched. 1, s. 14.
Same
(2) A designation under subsection (1) is subject to such restrictions as may be specified in the designation, including restrictions respecting the powers that may be exercised or the offences under this Act in respect of which powers may be exercised. 2018, c. 12, Sched. 1, s. 14.
This authority does not include the power of the police to arrest without a warrant provided under the Cannabis Control Act section 19. The government may also provide specific restrictions limiting authorities granted to specific persons (or classes of persons) through Cannabis Control Act section 21(1).
WHO CAN BE FOUND GUILTY OF A CANNABIS RELATED OFFENCE?
This might seem like a silly question to ask: Who can be found guilty of an offence under Ontario’s Cannabis Control Act? The obvious answer is the person who broke the specific piece of law. But did you know that a director or officer of a corporation can also be found guilty at court of an offence? The provision to do so is provided under the Cannabis Control Act section 22:
Offences
22 (1) A person who contravenes any provision of this Act or the regulations, or any order made under this Act, is guilty of an offence.
Same, directors or officers
(2) A director or officer of a corporation who causes, authorizes, permits or participates in an offence under this Act by the corporation is guilty of an offence.
IS THERE A PERIOD OF LIMITATION AFTER WHICH I CAN’T BE CHARGED WITH A CANNABIS OFFENCE?
Yes. The period of limitation is two years after the day that the offence occurred or was alleged to have occurred under the Cannabis Control Act section 22(3):
Limitation
(3) No proceeding under this section shall be commenced more than two years after the day the offence was, or is alleged to have been, committed.
WHAT ARE THE COURT PENALTIES UNDER THE CANNABIS CONTROL ACT IN ONTARIO?
This is where things get a little tricky… The answer here is, “That depends.” The simplest penalties are those that are issued under the general penalty section of the Cannabis Control Act section 23(1):
Penalties
General
23 (1) Subject to subsections (2) to (7), on conviction for an offence under this Act,
(a) a corporation is liable to a fine of not more than $250,000; and
(b) an individual is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or both.
A corporation is liable of a court fine of up to $250.000.00 and an individual can get a fine of up to $100,000.00 plus potentially up to one year of imprisonment. It is important to note that the court fines are also subject to a 25% victim fine surcharge. This could mean a maximum total-payable fine of $312,500.00 for a corporation and a maximum total-payable fine of up to $125,000.00 for an individual. Those are enormous potential court fines!
WHAT ARE THE COURT FINES FOR ILLEGALLY SELLING CANNABIS? OR IF I’M THE LANDLORD?
However, the penalties can vary depending on the nature of the conviction. The Cannabis Control Act in Ontario specifically sets out penalties for a conviction under section 6 or 13 for individuals as follows under section 23(2):
Penalties: sale, distribution; landlords
(2) An individual who is convicted for contravening section 6 or 13 is liable,
(a) on a first conviction in respect of the section, a fine of not more than $250,000 or to imprisonment for a term of not more than two years less a day, or both; and
(b) on a subsequent conviction in respect of the section, a fine of not more than $100,000 for each day or part of a day on which the offence occurs or continues or to imprisonment for a term of not more than two years less a day, or both.
Section 6 of the Cannabis Control Act has to do with the illegal sale or distribution of cannabis. Section 13 of the act has to do with landlords knowingly permitting their property to be used for the illegal sale of cannabis. A first offence has a much higher fine of $250,000.00 plus the victim fine surcharge (vfs) compare to the the $100,000.00 + vfs listed under the general penalty section. A subsequent conviction (a second or later conviction) can result in a fine of up to $100,000.00 + vfs per day or part of a day on which the offence occurs or continues to occur. The potential length of imprisonment is also increased to a maximum of two years less a day.
If a corporation is convicted under these same to sections of law, there is a similar increase in court penalties under section 23(3) compared to those under the general penalty section:
Same, corporation
(3) A corporation that is convicted for contravening section 6 or 13 is liable,
(a) on a first conviction in respect of the section, a fine of at least $25,000 and not more than $1,000,000; and
(b) on a subsequent conviction in respect of the section, a fine of at least $10,000 and not more than $500,000 for each day or part of a day on which the offence occurs or continues.
A first offence now comes with a mandatory minimum fine of $25,000.00 + vfs and a maximum fine of $1,000,000.00 + vfs. For a subsequent offence there is now a minimum fine of $10,000.00 or maximum fine of $500,000.00 per day or part day for which the offence occurs or continues to occur plus the 25% victim fine surcharge.
WHAT ARE THE COURT PENALTIES FOR SELLING CANNABIS TO SOMEONE UNDER THE AGE OF 19?
The penalties again differ if the cannabis was being sold to someone under the age of 19. Under the Cannabis Control Act section 23(4) the penalties for illegally selling or distributing cannabis to someone under the age of 19 is:
Penalty: sale, distribution to persons under 19
(4) Upon conviction for contravening section 7,
(a) a corporation is liable to a fine of not more than $500,000; and
(b) an individual is liable to a fine of not more than $200,000 or to imprisonment for a term of not more than one year, or both.
For an individual, the penalty can go as high as $200,000.00 + vfs which is double that of the general penalty. A corporation upon conviction could receive a fine as high as $500,000.00 + vfs which is again double the amount prescribed under the general penalty section of the act.
WHAT ARE THE COURT PENALTIES FOR SOMEONE UNDER THE AGE OF 19?
An individual under the age of 19 that is convicted for possessing, using, or growing cannabis under section 10 of the Cannabis Control Act faces significantly lesser court penalties. The court penalty in such a case is determined by the Cannabis Control Act section 23(5) as follows:
Penalty: possession, consumption, cultivation if under 19
(5) An individual who is convicted for contravening section 10 is liable to a fine of not more than $200, subject to subsection (7).
Compared to the general penalty fine that could go as high as $100,000.00 + vfs and include jail time, an individual under the age of 19 does not face jail time and would have a very minor fine of no more than $200 plus the victim fine surcharge.
CAN SOMEONE UNDER THE AGE OF 19 AVOID A COURT FINE FOR A CANNABIS CONVICTION?
Potentially, yes. If the person under the age of 19 has been convicted for an offence under the Cannabis Control Act section 10, there is a potential alternative. Under section 23(7) of the Cannabis Control Act, the court has the option of requiring the individual to participate in an approved youth education or prevention program instead of a court fine or as part of a probation order:
Youth education, prevention program participation
(7) Instead of ordering a penalty under subsection (5), the court that convicts an individual for contravening section 10 may, as a condition in a probation order or otherwise, require the individual’s participation in one or more approved youth education or prevention programs, subject to any conditions or restrictions that the court may specify.
As noted, the court may also apply specific conditions or restrictions as a part of such program participation.
CAN I FACE OTHER COURT PENALTIES FOR A CANNABIS CONVICTION?
Yes. Last week we discussed some of the incredibly serious penalties such as fines and imprisonment that can be issued by the court for a conviction under the Cannabis Control Act. However, upon conviction the court may also make additional orders that the defendant will be required to abide by. These orders may be solely at the court’s discretion and initiative, or they may be considered at the request of the prosecutor. Under Ontario’s Cannabis Control Act section 24, there are four possible orders that the court can make:
ADDITIONAL ORDERS
24 In addition to any other remedy or penalty provided by law, the court that convicts a person under this Act may, on its own initiative or on the motion of the prosecutor, make one or more of the following orders:
- An order requiring the person, within the period or periods specified in the order, to do or refrain from doing anything specified in the order.
- An order imposing requirements that the court considers appropriate to prevent similar unlawful conduct or to contribute to the person’s rehabilitation.
- An order prohibiting the continuation or repetition of the offence by the person.
- An order under section 25, subject to subsection 25 (11).
Let’s take a look at these potential orders.
The first option is that the court may issue an order that you must do (or not do) something as defined by the court. This order can be set for a specific period of time or it may be set to cover multiple periods of time. This section of the Cannabis Control Act does not place an limitation on the duration of such an order or how many periods of time may be set.
The second type of order would be a court-imposed requirement appropriate to prevent the defendant from re-offending or to help contribute with their rehabilitation. Outside of the general wording of this guideline, there are no specific details or limits upon what the court order could include.
The third type of court order is much more straight forward. This type of court order would be to prohibit the defendant from continuing or repeating the offence of which they were convicted. Effectively: “Don’t do it again.” But with the authority of the court and the consequences that come with breaking a court order.
The fourth type of court order refers to the closure of a premises under the Cannabis Control Act section 25, which we’ll talk about next.
IF AM CONVICTED OF A CANNABIS OFFENCE, CAN THE COURT ORDER A CLOSURE OF MY PREMISES?
Yes. As discussed in the previous section, upon conviction of the defendant the court can issue various orders at its discretion. One such order is that the premises involved in the offence be closed. The authority to do so is provided under the Cannabis Control Act section 25(1) as follows:
Order to close premises
25 (1) The court that convicts a person under this Act may order that a premises be closed to any use for a period not exceeding two years if,
(a) the person was convicted for contravening section 6, and the premises was used in the contravention; or
(b) the person was convicted for contravening section 13 in relation to the premises.
As noted, the conviction must either be for an offence that occurred under section 6 (the unlawful sale or distribution of cannabis) or section 13 (where a landlord has knowingly permitted their property to be used for a relevant cannabis-related offence). The duration of the closure of the premises in the court order can not exceed a period of more than two years.
CAN I STILL ENTER A PREMISES THAT HAS BEEN ORDERED CLOSED BY THE COURT?
No. Under the Cannabis Control Act section 25(2), any premises that has been ordered closed under section 25(1) shall be barred from entry by the police:
Barring of entry
(2) If a closing order is made under subsection (1), a police officer shall bar entry to all entrances to the premises to which the order applies until the order is suspended or discharged under this section. 2017, c. 26, Sched. 1, s. 25 (2); 2018, c. 12, Sched. 1, s. 16.
This barring of entry applies to all entrances to the premises. The location will also remain barred from entry until such time as the court order is suspended or discharged.
CAN I APPLY FOR THE ORDER OF CLOSURE TO BE SUSPENDED BY THE COURT?
Yes. If you are a person who has an interest in the premises that has been ordered closed by the court (such as the property owner), you can make an application to the court for a suspension of that order. The details of such an application are set out under the Cannabis Control Act section 25(3) as follows:
Suspension
(3) On application by any person who has an interest in the premises, the Superior Court of Justice may suspend the order for the period specified by the court, subject to any conditions specified by the court, if,
(a) the court is satisfied that the use to which the premises will be put will not contravene section 6 or 13, as the case may be; and
(b) the applicant posts a cash bond for $10,000 or such greater amount as the court may specify, for the term specified by the court, to ensure that the premises will not be used in contravention of that section.
The granting of such an application will set out the period for which the order of closure has been suspended along with any conditions specified by the court. The two conditions under which such an order of suspension may be issued include that the property not be used for the illegal sale or distribution of cannabis, and, that the applicant post a cash bond for $10,000.00 or more as specified by the court.
WHAT HAPPENS TO MY ORDER OF SUSPENSION AND CASH BOND IF THERE IS A NEW CONVICTION?
Section 25(3) of the Cannabis Control Act details what occurs if the defendant is convicted for a new offence regarding the illegal sale or distribution of cannabis at the same location during the period of time that the court ordered closure has been suspended:
Forfeiture of bond
(4) If, during the suspension of a closing order under subsection (3), a person is convicted for contravening section 6 or 13 in relation to the same premises, the Superior Court of Justice may, on application, order the forfeiture of the bond to the Crown, lift the suspension and reinstate the closing order.
Three things may occur if this happens:
- Forfeiture of the cash bond to the Crown
- Lifting of the suspension of closure order
- Reinstatement of the order of closure
CAN I APPEAL A FORFEITURE OF MY CASH BOND AND REINSTATEMENT OF THE CLOSURE?
Unfortunately the answer is no. The law under the Cannabis Control Act section 25(5) is very short and concise:
No appeal
(5) No appeal lies from an order made under subsection (4)
An order made under the previous section is final and may not be appealed.
CAN I APPLY FOR AN ORDER OF CLOSURE TO END EARLY?
Yes. Under the Cannabis Control Act section 25(6), the court may grant a request to have an order of closure discharged if it is satisfied of the following:
Discharge
(6) On application, the Superior Court of Justice may discharge a closing order if the court is satisfied that,
(a) there has been or will be a change in the effective ownership or occupation of the premises subsequent to the commission of the offence; and
(b) the owner can ensure that there will be no contravention of section 6 or 13, as the case may be, in relation to the premises.
The first condition that will have to proven to the court’s satisfaction is that the premises has either had an effective change or ownership or occupation since the commission of the original offence. The second condition that must also be met is that the owner can prove to the court’s satisfaction that the premises will not contravene the laws surrounding the illegal sale or distribution of cannabis again.
WHAT HAPPENS IF I APPEAL MY CANNABIS CONVICTION OR ORDER OF CLOSURE?
Under the Cannabis Control Act section 25(7), if you have filed an appeal of your original conviction or an order of closure, you may also apply for the order of closure to either be suspended or discharged:
If closing order, conviction appealed
(7) If a closing order or a conviction in respect of which the order was made is appealed,
(a) the appellant may apply under subsection (3) for a suspension of the order until the disposition of the appeal; and
(b) any person may apply under subsection (6) for a discharge of the order.
CAN MY ORDER OF CLOSURE BE STAYED IF I APPEAL IT OR MY CONVICTION?
No. The Cannabis Control Act section 25(8) specifically prohibits that an order or closure not be stayed due to an appeal made under the previous section:
Same, no stay
(8) An appeal referred to in subsection (7) does not stay a closing order.
