The Ontario Government first enacted the Cannabis Licence Act and Cannabis Control Act in October 2018. A provincial counterpart to the federal Cannabis Act, the pair of legislation is a set of provincial statutes that contain regulatory (yet criminal law-like) prohibitions that individuals and companies may face in relation to cannabis.
Similarities and Differences between federal Cannabis Act and Cannabis Control Act
The federal Cannabis Act is a federal statute that contains serious criminal penalties. For many of its criminal offences, such as selling or production without authorization, the maximum penalty is 14 years imprisonment. Generally, in the provincial Cannabis Control Act, the presumed max sentence is a $100,000 fine, imprisonment for up to 1 year, or both.
If you are arrested for a federal criminal offence, you will likely be fingerprinted by the police. Your information will then put into the police’s CPIC database. This database is accessible by law enforcement agencies across the country, and is also accessible by US border patrol.
If you were charged with both the federal and provincial equivalent of a certain offence, and it arises out of the same act it is possible to seek a stay of the charges under a principle established in a Supreme Court of Canada case called Kienapple.
Section 6 – Unlawful sale, distribution
The provincial legislation prohibits the anyone other than an authorized cannabis retailer from selling cannabis (s. 6(1)).
The legislation also prohibits anyone, other than an authorized cannabis retailer, from distributing cannabis that is sold or intended to be sold.
Section 7 – prohibitions on sale, distribution to persons under 19
The province prohibits any sale or distribution of cannabis to a person under 19 years of age.
However, there is a defence available that the person that they “believed the person receiving the cannabis to be at least 19 years of age because the person produced identification referred 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.
Section 9 – Unlawful Purchase
This is a section that prohibits individuals from purchasing cannabis from a source that is not legal. I have not seen many, if any, charges under this provision but it is certainly possible that police charge individuals, particularly if they are found in the vicinity of an unlawful cannabis retail dispensary.
Section 10 – Are you a Youth? Has your youth been charged under the Cannabis Control Act?
Under the provincial Cannabis Control Act, a person under 19 can be charged for possessing any amount of cannabis. This contrasts with the federal Cannabis Act offence, which applies when possession is of 5 grams of dried cannabis (or its equivalent) and higher.
Section 12 – Transporting cannabis Operate / Care or Control of Motor Vehicle with cannabis Readily Available
This is otherwise known as the “open cannabis” or “open container” or transportation of cannabis offence.
Did you know – it is illegal for cannabis to be readily available to any occupants of a motor vehicle? An individual that is in care or control of the vehicle will be charged under Section 12.
However, if the cannabis is not readily available, the individual charged is not in care or control of the vehicle.
However, an individual can only be convicted if they were in care or control of the vehicle and the cannabis is readily available. (s. 12(1)).
Further, per s. 12(3) of the Cannabis Control Act, an officer who has reasonable grounds to believe that cannabis is being transported in violation of of s. 12(1).
Section 18 and 25 – interim closure of premises and Order to close premises notice
Under section 18, the police can cause the premises to be closed immediately and for any person on the premises to be removed if they have reasonable grounds to believe that the premises was used in a contravention of either Section 6, s. (10) (1) (a), (c) or 10 (2) of the federal Cannabis Act.
Under section 25, a court can order closed a premises where an individual is convicted of contravening sections 6 or 13, and the premises is used in the contravention or the contravention in relation to the premises.
I will review all of the disclosure to determine where we can poke holes in the Crown’s case. Some areas of investigation I would pursue are:
- Was the cannabis truly readily accessible to any occupants?Was the cannabis packed in baggage that was fastened close, negating the offence?
- Was the individual truly in care and control of the vehicle?
- Were there any Charter violations?
Ramifications and Collateral Consequences: What else could happen if I am convicted?
- Section 12 offence is Reportable to auto insurance
- Potential of jail time (only for offences issued via Part III)
- Lessened ability to apply for provincial licensing, including to become a security guard or manage a cannabis retail store
- Potential immigration / travel consequences
Why obtain a lawyer?
If you received a Part III summons, you will have to stand trial. ALWAYS hire a lawyer in that case. If convicted, the conviction will then be on your provincial record.
If you received an Offence Notice / Certificate with a set fine on it, the government is inducing you to sign the set fine. Do not do this until you have consulted with a lawyer.
Whether you have been charged under the Cannabis Control Act or the Cannabis Licence Act, it is always a good call to consult with a lawyer.
I’m a Toronto-based lawyer assisting small businesses with their cannabis retail application. Call me at 1-855-542-0529 or email me. One reason to call Harrison Jordan? I only focus on cannabis-related matters.