Look into the future with me: It is some time in late 2018, Bill C-45 has become law. The federal “Cannabis Act” is in effect. In the interest of public health, reducing strain on police and court resources and de-criminalizing a practice that is already pervasive in our country, Canadians are allowed to possess and consume cannabis legally!
Imagine that you are an adult and have no interest in making any profit off this new system; you just want to participate in this legal consumption of cannabis in small amounts. You are a law-abiding citizen. Or you thought you were.
The only issue is that Bill C-45 and Ontario’s Cannabis Act of 2017 are drafted in ways that are overbroad and overly punitive.
So let’s explore the ways you very easily can, and probably will become a criminal by accident.
There are many. They are ridiculous. Some more than others.
We will move on to the effects of the federal law when viewed in conjunction with Ontario’s provincial law soon. First, let us take a look at the prohibitions contained entirely within Bill C-45 itself. Let’s explore some scenarios.
You are 18 years old. Marijuana is legal in Canada.
You are legally smoking a marijuana cigarette. You pass this joint to 17 year-old. This is your friend. You are in the same grade; you were born in the same year. This person may be your significant other; this person may be your spouse. This person is – let’s say – 6 weeks younger than you. The timing is unfortunate.
You are – in no uncertain terms, guilty of distributing to a minor, per s. 9(1)(a)(ii). You are a criminal. Maximum sentence: 14 years in jail.
In the hierarchy of “seriousness of criminality” as marked by maximum sentence, this is somewhere more serious than: assault causing bodily harm, assault with a weapon, a $10,000,000 theft, or sexual assault (which all carry 10-year maximums).
Reminder: Marijuana is Legal for All
Now you may say in respect of the above scenario: don’t give marijuana to minors. It is simple and reasonable. But did you know that under the federal bill, minors are not prohibited from possessing and consuming cannabis. (Provincial laws will, but not the federal act.) You are allowed to consume; they are allowed to consume. But the distribution of it is considered a very serious crime.
You are 18-years old. You are at a party. 17 year-olds are at the party as well. You are all in the same high school grade. You are allowed to smoke marijuana. The 17 year-olds are allowed to smoke marijuana. You are allowed to legally smoke marijuana directly next to a 17 year-old who is also legally smoking marijuana; you can legally do it while holding hands with that 17 year-old and talking about the marijuana you are both smoking. You may pass a joint to other 18 year-olds. 17 year-olds can pass joints to one another. 17-year old can pass joints to you. If you pass a joint to a 17-year old, you are a criminal and liable to 14 years in prison. Whoops.
Here is the section from Bill-45 that you will probably be thinking about for the rest of your life, as it will be the reason you have a permanent criminal record:
9(1) Unless authorized under this Act, it is prohibited … (a) for an individual who is 18 years of age or older … (ii) to distribute cannabis to an individual who is under 18 years of age
Take it from the Government of Canada: Position yourself wisely in the circle when the joint is going around. Let your friend be the one to the right of the kid with the December birthday. Then alert the authorities if you so choose.
Same party. Marijuana is legal for every person at that party to smoke next to each other.
You do not want to go to jail, whatever you think about the above law. So, you are careful. Before passing a joint, you say “I am not sharing this with anyone who is not 18.” And you mean it. You are very careful: you ask each and every person how old they are. They are being cool about it and respond. You only pass to a person who says they are 18 years-old, letting the 17 year-olds legally smoke their own marijuana, not yours. Nice work, citizen.
You did not ask for ID. That “18 year-old” lied. He is actually 17. You should have asked for I.D. You did not take “reasonable steps” as required by S. 9(3) of the federal act. You are a criminal. You are guilty. If you are given the maximum sentence, you will spend 14 years in jail. The good news: when you are out of prison, you will not likely be hanging around many “borderline 18-year olds”, because you will be 32.
9(3) It is not a defence to a charge arising out of the contravention of subparagraph (1)(a)(ii) that the accused believed that the individual referred to in that subparagraph was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.
You are 18-years old. You are hanging out with three friends in your home. You are having a good time. Marijuana is legal. You say to your 3 friends: “Hey, I have some legally purchased marijuana that I just bought from the government retailer. Should I roll a joint for us to smoke”? Your friends say “sure”; it is not a big deal because marijuana is legal. One friend says: “You guys enjoy. I am only 17 so I will not partake in your government-purchased legal marijuana. I will roll my own joint and smoke it on the other side of the room”. Excellent. It is a good thing you are all so careful. Obviously, you check the I.D.s of the remaining two friends to confirm that they are indeed 18-years old. They all are indeed 18 and their I.D.s have confirmed it.
Fantastic: you are not a criminal. Except you are. Obviously. And you are liable to go to jail for 14 years. Because the C-45 defines “distribute” as follows:
distribute includes administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute.
You made your specific quantity of marijuana available to that 17-year old when you offered to all three friends to roll and smoke a joint. You made available some very specific, recently purchased marijuana to that minor. (Not even “indirectly”!) You offered to distribute it. You definitely at least offered to make it available.
Yeah, you’re guilty. You know you’re guilty.
By the time you asked who was 18 and checked their I.D.’s it was late. Way too late.
The law requires that if you want to canvass the prospect of smoking some legalized cannabis with friends, you must first ask who is 18. It’s easy and natural: Ask the room “how old is everybody in this room”. Demand answers. Don’t explain why. Next, check IDs. Don’t explain why. Only then, once you have taken reasonable steps to ensure you are not offering or making available marijuana to a minor can you explain to your (oddly compliant and patient) friends that you needed to see their ID’s so you could ask if they want to smoke a joint of legalized cannabis. They will then say “sure, I guess”, or “no thanks”.
“Illicit Cannabis” is a Thing (… that looks a lot like “regular cannabis”, but makes you go to jail)
The Federal Cannabis Act will prohibit any adult from possessing [section 8(1)(b)] or distributing [section 9(1)(a)(iv)] any cannabis they know to be “illicit cannabis”.
So, what it “illicit cannabis”? It is defined in Bill C-45 as follows:
illicit cannabis means cannabis that is or was sold, produced or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act
Let’s explore how this may lead to you going to jail for things you wouldn’t expect to jail for.
Welcome to Ontario
As you see above, the Federal Act includes in its definition any cannabis “distributed by a person prohibited from doing so under this Act or any provincial Act.”
This is where we bring in the recently passed Ontario legislation: the Cannabis Act, 2017, S.O. 2017, c. 26. Because the Ontario legislation is all about that distribution prohibition. To avoid confusion (because confusion is not what this legislative scheme is all about), let us refer to it from now on as the “Ontario Act”, to distinguish it from the “Federal Act” (Bill C-45).
Interpreting “Illicit Cannabis” Definition
Now, this clause can be read several ways. One way to read it is that it only applies to cannabis sold by persons who are never allowed to sell it to anyone. As in “distributed by a person prohibited from doing so” to anyone at any time. Another way to read it is that it renders illicit any cannabis that was distributed in contravention of an Act. That is: it was distributed by a person that was acting illegally when they distributed it.
I would love to believe it was meant (and will be interpreted) as the former. But am not confident. Because that would not make a lot of sense. Because nobody, it seems, is completely barred from ever distributing cannabis.
Every adult will be allowed to distribute small amounts of legally-purchased government-sanctioned marijuana to another adult (e.g. “pass a joint”). None of us are allowed to distribute a kilogram of such marijuana, for profit, out of a storefront in Ontario. But even that dispensary-owner is not prohibited from distributing cannabis in Ontario: he can pass a joint to his friend.
The person is never prohibited, only the means of distribution are. Unfortunately, the Ontario Act prohibits quite a few means of distribution, therefore casting a wide net on what is considered “illicit cannabis”.
Let’s look at some of the more absurd applications.
The Ontario Act states:
7 (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.
So, if you work for the Ontario Cannabis Store (“OSC”, the government-run stores), take notice: you must ask for the I.D. of anyone who looks under 25. Even if they, in fact, are over 19. Or that employee is in trouble!
But what’s more, seems to me that if they sell marijuana in contravention of this section, that actual physical cannabis becomes what the Federal Act calls “illicit cannabis”. It “is or was sold by a person prohibited from doing so [in the circumstances]” by the Ontario Act. And it is a criminal offence for any of us to then knowingly possess that bad, bad stuff. So, imagine this:
I am 24 years old. I look like a 24 year-old. I go to the OCS and they sell me cannabis without first asking for my I.D. Guess what?
a) That cannabis was sold to me in contravention of the Ontario Cannabis Act.
b) It is therefore “illicit” cannabis per the Federal Act definition.
c) I know it was sold to me without them asking for I.D., so I know it is illicit.
d) I am therefore immediately guilty under s. 8(1)(b). The second I take control of it.
That crime carries a maximum penalty of 5 years less a day. Cool! I didn’t use a fake ID. I am 24 years-old! I went to the one place it is supposed to be legal to buy cannabis in Ontario. I did not do anything wrong. Marijuana is legal, and I bought it from the government store. But the CSO employee sold me cannabis that immediately became illicit when he/she forgot to ask for I.D.
Guess what else? If I go on to smoke that suddenly/magically illegal marijuana with a friend of any age, now I am guilty of distributing illicit cannabis in contravention of Federal Act section 9(1)(a)(iv). That carries with it a maximum penalty of 14 years in jail. Also cool.
All this because I “looked under 25” and the government employee made a mistake. Shoot, even if I am actually 30, but “look under 25” and that OCS employee did not ask for I.D., I am now a criminal.
Should have grown out that moustache I guess.
The Ontario Act’s section 8 states:
8 No person shall knowingly sell or distribute cannabis to a person who is or appears to be intoxicated.
OK. Let’s explore some more unexpected paths to criminality for you and your loved ones:
Imagine these scenarios where legal recreational cannabis might be used in conjunction with alcohol (unfathomable, I know, but work with me here).
1. If you pass a joint at a party to somebody who has had a drink or two and therefore is (or looks) intoxicated … you are guilty of illegal distribution.
Ontario Act, s. 8 (Maximum penalty: 1 year in jail, $100,000 fine, or both)
2. If you yourself had a drink or two and are (or look) intoxicated, are passed a joint by another person, that person just passed you marijuana in contravention of Section 8 of the Ontario Act. That cannabis became “illicit” when passed to you. YOU are now guilty of possessing illicit cannabis. Congratulations.
Federal Act, s. 8(1)(b). (Maximum penalty: 5 years in jail, less a day).
3. Pass that joint back to your generous friend and you are further guilty of distributing cannabis you know to be illicit, because that cannabis had been distributed illegally several minutes earlier. It remains illicit. You just distributed it.
Federal Act, s. 9(1)(a)(iv). (Maximum penalty: 14 years jail)
4. Drink copious amounts of alcohol and smoke copious amounts of marijuana by yourself and you are … actually OK. Without a second person to “distribute” it, this is perfectly legal. There’s a freebie for you. These laws make sense.
Forget alcohol for a moment, and imagine that cannabis itself might lead to “intoxication”…
5. If are smoking a joint with a friend and pass them back the joint, but they had already had a puff and therefore are (or appear) intoxicated, you have just illegally distributed.
Ontario Act, s. 8. (Maximum penalty: 1 year jail, $100,000 fine, or both)
6. If you have a puff, pass to a friend, take it back and are yourself (or appear) intoxicated from the first toke, your friend just distributed it to you in contravention of Section 8 of the Ontario Act, and that joint just became illicit right before your eyes. You are guilty of possessing illicit marijuana.
Federal Act, s. 8(1)(b) (Maximum penalty: 5 years in jail, less a day).
7. Pass it back one more time, while we’re at it, and we can call it distribution of illicit cannabis, because what’s 11 more years in jail, really?
Federal Act, section 9(1)(a)(iv). (Maximum penalty: 14 years jail)
Enjoy legalized cannabis, everyone! Well, except, maybe don’t. Or you may go to jail.
Some of you may say that this article focuses on the most absurd elements of the new laws. Yes, it does. Obviously some regulation is necessary, but there is something wrong with the legislation when you can go to jail for things this innocuous and ridiculous.
Others will point out that all numbers used in this article are maximum penalties and that, in fact, police will have the authority to not lay criminal charges for many of these offences …
First: while that is true, it is also nothing new. Police have the authority to not lay charges as it is. They don’t lay charges for cannabis possession every day. For certain people they seem to get by just fine. Others: not so much. (We’ll get there …)
Second: it is not good policy to say: “we recognize this an unreasonable and dangerous law, because maybe it won’t be enforced”. Why pass it then? Why not fix it?
Third: and perhaps most importantly, Canadians from aboriginal and racialized communities are currently far overrepresented in our criminal system. Under current cannabis laws, Canadians from those communities are far more likely to be prosecuted for minor cannabis-possession offences. So, I ask: if you are comfortable with the absurdity of the laws explored in this article on the basis that “police probably will not charge me criminally even if they do find me breaking one of these laws”, please consider whether the majority of people from racialized communities feel quite so confident.
The Ontario Act states:
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.
(2) Subsection (1) does not apply with respect to cannabis,
(a) that is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat; and
(b) that meets any prescribed requirements.
(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.
So, if police believe that you may have legal, government-sold cannabis in your vehicle and that is may be accessible to any person in the car (e.g. in the pocket of the guy in the back), police may stop your car and, without a warrant, search the entire car and every person in it without having grounds for arrest.
Unless, of course, there was some reason to think that this may not result in searches of all Canadians equally, regardless of what communities they come from.
All in all: Legal cannabis – yay!
Try not to get arrested…