Our Ontario Traffic Defence Team Can Help After an Arrest for Cannabis Violations

The Cannabis Act (Bill C-45) legalized the use and possession of cannabis (a.k.a. pot, marijuana, weed, etc.) in Canada as of October 17, 2018. Each Canadian province or territory has been provided a certain amount of latitude in how cannabis may be used. As with any new area of law, there can be confusion for the average Canadian on the specifics of how that law specifically relates to their personal actions. This can lead to unintentionally breaking the law and being charged by the police. With the legal specifics varying from one part of Canada to another and likely evolving through case law, this can become even more confusing. The Government of Ontario has provided a brief overview of the basic legal issues to be concerned with.

If you have been charged with a Highway Traffic Act or Cannabis Act offence in Ontario, OTD Ticket Defenders Legal Services can assist you. A conviction can carry very large court penalties, a record of conviction, impact your employment, result in a suspension of your driver’s license, and impact your insurance costs. Currently, some of the most common offences that can be issued include the following areas of offence:

• Unlawful sale, distribution
• Prohibitions on sale, distribution to persons under 19
• Prohibition on sale, distribution to an intoxicated person
• Unlawful purchase
• Prohibitions on possession, etc., by persons under 19
• Transporting cannabis
• Landlords
• Novice driver – Condition on license prohibiting presence of a drug
• Commercial motor vehicle driver – Non-zero presence of a drug

Zero-Tolerance Drivers

The following drivers are prohibited from having any amount of cannabis in their system:

• Drivers 21 or under
• Drivers with a G1, G2, M1, or M2 license
• Drivers of a vehicle that requires an A-F driver’s license or Commercial Vehicle Operator’s Registration (CVOR)
• Drivers of a road-building machine

General Penalties For A Cannabis Offence While Driving

The general penalties for a conviction under the Ontario Cannabis Act sections (2) through (7) are:

• A corporation is liable to a fine of not more than $250,000; and
• 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.

Cannabis Offence Penalties: Sale, Distribution, and Landlords

An individual who is convicted for contravening section 6 or 13 faces:

• A fine of not more than $250,000 or imprisonment for a term of not more than two years less a day, or both on a first 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 imprisonment for a term of not more than two years less a day, or both on a subsequent conviction in respect of the section

A corporation that is convicted for contravening section 6 or 13 is subject to:

• A fine of at least $25,000 and not more than $1,000,000 on a first 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 on a subsequent conviction in respect of the section

Cannabis Offence Penalty: Sale, Distribution to Persons Under 19

A conviction under section 7 of the Ontario Cannabis Act can result in the following penalties:

• A corporation is liable to a fine of not more than $500,000
• 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.

Cannabis Offence Penalty: Possession, Consumption, Cultivation If Under 19

An individual who is convicted for contravening section 10 is liable to a fine of not more than $200, subject to possible participation in a youth education/prevention program at the discretion of the court.

The Ontario Cannabis Act

The full text of the Ontario Cannabis Act is as follows:

Cannabis for Medical Purposes

5 (1) Subject to section 12, this Act and the regulations do not apply with respect to the sale, distribution, purchase or attempt to purchase, possession, consumption, offering to cultivate or cultivation, offering to propagate or propagation or offering to harvest or harvesting of cannabis for medical purposes in accordance with the Cannabis Regulations (Canada) or in accordance with a court order, or to cannabis produced or obtained for medical purposes in accordance with such authority. 2018, c. 12, Sched. 1, s. 6 (1).

Cannabis for Research and Educational Purposes

(2) This Act does not prevent the distribution, possession or consumption of cannabis for research or educational purposes in the prescribed circumstances.

Cannabis Supply Chain

(3) This Act and the regulations do not apply, to the extent provided by the regulations, to prescribed activities relating to cannabis that are undertaken by or on behalf of prescribed persons acting under the Cannabis Act (Canada) or in connection with the Ontario Cannabis Retail Corporation Act, 2017. 2017, c. 26, Sched. 1, s. 5 (3); 2018, c. 12, Sched. 1, s. 6 (2).

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 5 (3) of the Act is amended by adding “or the Cannabis License Act, 2018” at the end. (See: 2018, c. 12, Sched. 1, s. 6 (3))

Regulations

(4) In addition to subsections (1), (2) and (3), the Lieutenant Governor in Council may make regulations exempting any person, place or thing from any provision of this Act or the regulations or providing that this Act and the regulations or any provision of this Act or the regulations do not apply in respect of any person, place, thing or circumstance, and specifying conditions or restrictions for any such exemption or non-application.

Section Amendments with date in force (d/m/y)

Cannabis Violations For Distribution

(2) No person shall distribute cannabis that is sold, or that is intended to be sold, other than by the Ontario cannabis retailer.

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 6 (2) of the Act is repealed and the following substituted: (See: 2018, c. 12, Sched. 1, s. 7 (2))

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).

Section Amendments with date in force (d/m/y)

Prohibitions on Sale, Distribution to Persons Under 19

7 (1) No person shall knowingly sell or distribute cannabis to a person under 19 years of age.

Identification

(2) No person shall sell cannabis or, if cannabis is not provided to the purchaser at the time of sale, no person shall deliver purchased cannabis, to a person who appears to be under 25 years of age unless the person selling or delivering the cannabis, as the case may be, has required the person receiving it to provide a prescribed form of identification showing his or her age, and is satisfied that the person is at least 19 years old.

Defence

(3) It is a defence to a charge under subsection (2) that the defendant believed the person receiving the cannabis to be at least 19 years of age because the person produced the identification referred to in that subsection and there was no apparent reason to doubt the authenticity of the document or that it was issued to the person producing it.

Improper Documentation

(4) No person shall present as evidence of his or her age any documentation other than documentation that was lawfully issued to him or her.

Prohibition on Sale, Distribution to Intoxicated Person

8 No person shall knowingly sell or distribute cannabis to a person who is or appears to be intoxicated. 2017, c. 26, Sched. 1, s. 8; 2018, c. 12, Sched. 1, s. 8.

Section Amendments with date in force (d/m/y)

Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by adding the following section: (See: 2018, c. 12, Sched. 1, s. 9)

False Representation as Authorized Cannabis Retailer

8.1 No person other than an authorized cannabis retailer may use the cannabis retail seal prescribed for the purposes of subsection 7 (2) of the Cannabis License Act, 2018, or otherwise represent themselves to be an authorized cannabis retailer. 2018, c. 12, Sched. 1, s. 9.

Section Amendments with date in force (d/m/y)

Unlawful Purchase

9 No person shall purchase cannabis except from the Ontario cannabis retailer.

Note: On a day to be named by proclamation of the Lieutenant Governor, section 9 of the Act is amended by striking out “the Ontario cannabis retailer” at the end and substituting “an authorized cannabis retailer”. (See: 2018, c. 12, Sched. 1, s. 10 (1))

Note: On a day to be named by proclamation of the Lieutenant Governor, section 9 of the Act is amended by adding the following subsection: (See: 2018, c. 12, Sched. 1, s. 10 (2))

Same, Purchasing Other Than in Person

(2) No person shall purchase cannabis online or by any means other than in person at a cannabis retail store, as defined in the Cannabis License Act, 2018, except from the Ontario Cannabis Retail Corporation. 2018, c. 12, Sched. 1, s. 10 (2).

Section Amendments with date in force (d/m/y)

Prohibitions on Possession, etc., by Persons Under 19

Possession, Consumption, Purchase, Distribution

10 (1) No person under 19 years of age shall possess, consume, attempt to purchase, purchase or distribute cannabis.

Cultivation, Propagation, Harvesting

(2) No person under 19 years of age shall cultivate, propagate or harvest, or offer to cultivate, propagate or harvest, cannabis.

11 Repealed: 2018, c. 12, Sched. 1, s. 11.

Section Amendments with date in force (d/m/y)

Transporting Cannabis

12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Search of Vehicle or Boat

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

Application to Cannabis for Medical Purposes

(4) This section applies to cannabis obtained for medical purposes in accordance with Part 14 of the Cannabis Regulations (Canada) or in accordance with a court order, except in such circumstances as may be prescribed. 2018, c. 12, Sched. 1, s. 12 (2).

Section Amendments with date in force (d/m/y)

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.

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,

1. the applicant is entitled to possession of the things seized;

13. the things seized are not required as evidence in any proceeding;
14. continued detention of the things seized is not necessary to prevent the commission of an offence; and
15. it is unlikely that the things will be forfeited on conviction in accordance with an order made under subsection (6).

Same

(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,

1. on the expiration of three months after the date of the seizure, if no proceeding in respect of an offence has been commenced; or

16. on the final conclusion of any such proceeding.

Not to Remain After Being Required to Leave

(2) No person shall,

1. remain on the premises after being required to vacate the premises under subsection (1); or

19. re-enter the premises on the same day the person is required to vacate, unless a police officer authorizes the person to re-enter.

Persons Residing in Premises

(3) Subsection (1) does not apply in respect of persons residing in the premises.

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:

1. Section 6.

20. Paragraph 10 (1) (a) or (c) of the Cannabis Act (Canada).
21. 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).

Same

(2) If a charge is laid against a person for a contravention of section 13, a police officer may cause the premises that is the subject of the alleged contravention to be closed immediately and that any persons on the premises be removed.

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).

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,

1. 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

22. 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).

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).

No Appeal

(6) No appeal lies from an order made under subsection (5).

Non-Application

(7) This section does not apply with respect to a premises used for residential purposes.

Section Amendments with date in force (d/m/y)

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.

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.

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.

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.

Section Amendments with date in force (d/m/y)

Cannabis Offence and Penalties and Other Related Orders

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.

Penalty: Sale, Distribution to Persons Under 19

(4) Upon conviction for contravening section 7,

1. a corporation is liable to a fine of not more than $500,000; and

26. 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.

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).

(6) Repealed: 2018, c. 12, Sched. 1, s. 15.

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.

Section Amendments with date in force (d/m/y)

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:

1. 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.

27. An order imposing requirements that the court considers appropriate to prevent similar unlawful conduct or to contribute to the person’s rehabilitation.
28. An order prohibiting the continuation or repetition of the offence by the person.
29. An order under section 25, subject to subsection 25 (11).

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,

1. the person was convicted for contravening section 6, and the premises was used in the contravention; or

30. the person was convicted for contravening section 13 in relation to the premises.

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.

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,

1. 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

31. 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.

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.

No Appeal

(5) No appeal lies from an order made under subsection (4).

Discharge

(6) On application, the Superior Court of Justice may discharge a closing order if the court is satisfied that,

1. 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

32. 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.

If Closing Order, Conviction Appealed

(7) If a closing order or a conviction in respect of which the order was made is appealed,

1. the appellant may apply under subsection (3) for a suspension of the order until the disposition of the appeal; and

33. any person may apply under subsection (6) for a discharge of the order.

Same, No Stay

(8) An appeal referred to in subsection (7) does not stay a closing order.

Description of Premises

(9) For the purposes of a closing order, a premises may be described by reference to its municipal address.

Registration

(10) A closing order may be registered in the proper land registry office.

Non-Application

(11) This section does not apply with respect to a premises used for residential purposes.

Section Amendments with date in force (d/m/y)

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.

Section Amendments with date in force (d/m/y)