The Other “Cannabis Act”:  9 Things to Know about the Ontario Legislation

Let us talk about the Cannabis Act that will set out in law in the new landscape of “legalized” marijuana exactly what is legal and what is not, what you can go to jail for and what you cannot.  No, I am not talking about the federal government’s Bill C-45, looking likely to go around and around between the two parliamentary chambers before being passed.  I am referring to the Other One; the other Cannabis Act, which will affect 13.5 million people; the one you probably do not know much about, but which you probably should.  I am talking about Ontario’s 2017 legislation – not yet in effect, but very much passed – the similarly titled Cannabis Act:

Much attention is being paid to the federal bill, and rightly so: the federal legislation does, of course, apply to all Ontarians and without the federal act, cannabis will remain criminal under the CDSA. But knowing what you may and may not do with respect to marijuana requires a careful understanding of both the federal and provincial legislation.  And make no mistake: there are common practices associated with marijuana use that are perfectly legal under the federal act, but strictly prohibited by the Ontario act and can carry sanctions including jail. As they say: if the thunder don’t get you then the lightning will.

So, in the immediate wake of the 2018 Ontario Election, with the Progressive Conservatives winning a majority, let us take a careful look at some of the most important elements of the Ontario act.  Premier-elect Doug Ford has stated his preference for an open-market on the sale of cannabis, from Windsor to Etobicoke to Cornwall to Fort Severn and everywhere in between.

Here are 10 things you should probably know about Ontario’s Cannabis Act:

Outside of the medical marijuana scheme, to which most of the laws in the Act do not apply, Ontario has made the decision to restrict the sale of marijuana to the government retailer.  Other provinces opted to regulate an open market.  But much like the LCBO has monopolized the sale of liquor, the newly-established CSO will be the only place Ontarians may legally buy marijuana.

What is more, it will be illegal under the Act to purchase cannabis sold elsewhere or distribute cannabis that was sold elsewhere.

The Ontario Act does not make it illegal to simply possess cannabis that was sold by someone other than the CSO. Unfortunately, when read in conjunction with the federal act, this simple possession is very much illegal: in fact, it is criminal.  More on that later.

This rule is more restrictive than anything in the federal act in two respects. Firstly, the federal Act sets the age cutoff distinguishing youths from adults at 18 years of age; Ontario increases that by one year (much like the legal drinking age is 19 in Ontario, while it is only 18 in a place like Quebec).

Secondly, and more importantly, however, the provincial act is the only law binding on Ontarian youth (however defined) that makes it illegal to possess, consume and distribute cannabis at all.  The federal act, in an enlightened attempt to avoid penalizing youth, make it illegal for an adult to distribute to a young person, but below a (fairly restrictive) maximum amount, the youth is not necessarily doing anything illegal by possessing, consuming, or even passing that cannabis on to another person.  The federal government did not see it fit to punish children in this way – they saw it sufficient to deter the provision of cannabis to children by targeting the adults.  The Ontario Act punishes both adult provider and all youth users, no matter how they obtained it.

Recreational (i.e., non-medical) cannabis cannot be consumed in:

• A public place;
• A workplace within the meaning of the Occupational Health and Safety Act;
• A vehicle or boat; or
• Any (other) prescribed place

The Act defines “public place” in this context as including “any place to which the public has access as of right or by invitation, whether express or implied, and whether or not a fee is charged”.  The wording of this definition effectively includes private businesses such as bars, cafes, restaurants, lounges or any business to which the public is “implicitly invited”: if a member of the public can walk into that place, it is probably illegal to consume cannabis there.  The federal act does not restrict public consumption.  But the Ontario act does.

 Nothing in the above “public place” law prohibits you from carrying your legal cannabis from Point A to Point B, so long as you do not consume it along the way. However, if you are travelling by vehicle, you must be very careful about how your cannabis is stored, or else the driver of that vehicle may be guilty under the Ontario act.

The starting point for this prohibition is as follows: “No person shall drive or have care or control of a vehicle or boat, whether or not it is in motion, while cannabis is contained in the vehicle or boat”.  There is, however, an exception: it is legal if the cannabis is “packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat”, and meets prescribed requirements.

What it all means: while it is legal to carry small amounts of cannabis around with you wherever you go, be sure it is properly sealed when getting in any vehicle, even if you are a passenger.

There is a wealth of very important law in Canada as to when and how police can search private citizens without infringing their constitutional rights to be free from search and seizure.  A very basic summary of that law is that police need a warrant in most cases to search a house or car; it is easier for police to have the authority to search a car than a house, but usually it has to be incident to an arrest for a crime. Police cannot search your person without your consent unless they have “reasonable probable grounds” to believe you have committed a crimeand have arrested you for that crime.

The Ontario Cannabis Act gives any police officer with reasonable probable grounds to believe there is cannabis illegally in the vehicle to – without a search warrant, and at any time – search the entire vehicle and any person found in the vehicle.

This means that if you are in the backseat of a car, and a police officer believesthat another passenger has cannabis that is not properly fastened, even though you are committing no offence (and in fact the passenger with the cannabis is committing no offence – only the driver is) and nobody suspects you of committing any offence, and even though cannabis is legal, you can be searched.

Whether the courts strike this down as unconstitutional remains to be seen; what the courts determine to constitute “reasonable probable grounds” to believe that some cannabis in a car is not “properly stored” remains to be seen as well: does a smell of marijuana meet the test?  Will this power be properly utilized equally in all Ontario communities including racialized communities and Indigenous communities?  Time will tell.

On its face, this prohibition prevents CSO employees from selling cannabis to an intoxicated person.  And in fact this section does capture such behavior.  But it goes much further than that – intentionally or unintentionally.

Distribute is defined as including:  “administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute or having in possession for distribution”.

This means that passing a marijuana cigarette to a friend who is (or looks) intoxicated will be illegal in Ontario.  Offering to pass a marijuana cigarette to a person who is (or looks) intoxicated is illegal in Ontario.  Arguably, “making cannabis available” by leaving it out at a party, where an intoxicated person mayhave access to it will be illegal in Ontario.

“Intoxicated” is not defined in the Act.  It may, arguably apply to a person who has had one drink and is so affected by the alcohol in a minor but real way.  It may, arguably apply to a person who has recently consumed a minimal amount of cannabis, which would make it illegal to pass a marijuana cigarette to a person who is already in the process of partaking or has partaken recently in that or other cannabis.

The prohibition is very broad and it is unknown how or when it will be enforced, but it is unambiguous in its application to everybody passing or sharing cannabis, not just those selling it.

 Unlike some other provisions in the Act, this one does not apply just to illegal businesses or places where cannabis is being illegally sold or produced: it applies to a place where any provision of the Act is suspected on reasonable grounds.

Other than persons “residing” in the premises, the police are given the power to order anybody to leave any place if in that place, for example: (i) youths are suspected of possessing or consuming cannabis, (ii) persons are suspected of sharing cannabis with “intoxicated” friends, or (iii) a person is suspected of sharing cannabis that was purchased somewhere other than the CSO.

Anybody actually doing those things can be charged under this Act, but even an innocent person who was elsewhere in the premises, not partaking in the suspected activity, can be ordered out and will not be allowed to return the same day unless the police say they can return.

“Residing in the premises” is not defined in the Act.  So while you cannot be kicked out of your own home, it may be interpreted that if you are visiting a friend in another city, with nowhere else to stay, you may be kicked out of the house and not allowed back in.  It is likely that if you live on the other side of town, were planning to spend the night on the premises, are intoxicated and have no way of getting home safely, that police still have the authority to bar you from the premises where the offence is suspected of having taken place.

There does not seem to be any suspicion by police that you knew anything illegal or inappropriate was happening in the premises for you to be subjected to removal.

While not strictly within the four corners of the Ontario Cannabis Act, the federal Cannabis Actactivates parts of the provincial act that are other benign.

The federal act stipulates that any cannabis sold, produced or distributed by someone prohibited from doing so under any provincial actis “illicit cannabis”.  It is illegal to even possess known “illicit cannabis” under the federal law.

What does this mean?  Take for example the simple possession of marijuana that was sold in Ontario outside of the CSO. The provincial act prohibits buying, selling or distributing such cannabis, but not possessing it.  Possessing it is OK according to the Ontario act.  But, because selling it in this way is against the Ontario act, that actual physical cannabis is now “illicit”, and its possession – even in small amounts for personal use – is prohibited under the federal act.  The Ontario act activates that element of the Federal act, perhaps “unknowingly”.

There are stranger way the provincial act “triggers” or activates the federal prohibition on “illicit cannabis”.  For example, the Ontario act requires CSO employees to ask for ID for anybody under 25 years old before selling them cannabis.  It was probably not anticipated by provincial lawmakers that a young adult who leally purchases cannabis from a careless CSO employee (who forgot to ask for ID) is now criminally responsible for possessing that illicit cannabis.  The federal law states that cannabis sold by a person who was not permitted to do so under the provincial act become “illicit cannabis”.  No person in Ontario may sell to anyone under 25 (or who looks under 25) without checking their ID: that cannabis is therefore illicit.

The penalties for breaching the Ontario act vary.

For example:

• Selling cannabis outside of the CSO, or being a landlord permitting such selling carries sanctions up to $250,000in fines, two years less one dayimprisonment, or both;

• Distributing cannabis to a minor carries a penalty of up to a $200,000fine, 1 year in jailor both;

• Being a youth who possesses, consumes, or cultivates cannabis includes a fine of up to $200;

Most other offences include penalties of up to $100,000in fines, 1 year in jail, or both.

Of course, the federal act carries its own penalties as the potential stigma of a criminal record for its certain offences that are affected by what Ontario has decided to call legal and illegal.  For example, the combined effect of the federal and provincial acts means that a person who distributes cannabis that was sold in Ontario outside the CSO is liable to up to fourteen years in prison.

These are just some highlights of the Ontario Cannabis Act.  This is not to mention the laws respecting forfeiture of ‘proceeds’ of Cannabis crimes, issues involving consultation with Indigenous communities, or the creation of youth education programs.

Suffice it to say, there are important elements in this act that do not get the same attention as the federal bill making its way through the process currently.

Whether it will come into effect as currently constituted or if changes are on the way?