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Cannabis 101: Part 3 of 5

Recently we have been discussing the law surrounding the legalization of Cannabis in Ontario.  This has been a major legal change for Canada since cannabis was originally banned in 1923.  With the passing of The Cannabis Act, cannabis is now legal for recreational use across Canada and the provinces and territories are permitted to make their own specific regulations surrounding cannabis sale and use.  Not only is this a whole new body of law for the average person to understand, but it presents a new set of laws and legal challenges that currently are and will continue to be before the court.  Add in to that confusion that the average person may also run across information from outside their home province or territory, and everything can get just that much confusing and muddy.

Breaking the law can result in being charged by the police.  Having to face charges at court can be nerve wracking and mean facing penalties that impact your life for years to come.  An ounce of prevention in knowing the law, can be worth more than a pound of cure in fighting your charge(s) at court.  Let’s take a look at more questions surrounding cannabis laws in Ontario and how they may relate to you.  If you have a question that you don’t see answered here, submit a blog question and we’ll include a response in a future article or respond to you directly.  If you have already been charged by the police, you will need more timely advice and can submit an online consultation request for one of our staff to go through your case history and details with you now.

Let’s take a look!

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:

  1. Section 6.
  2. Paragraph 10 (1) (a) or (c) of the Cannabis Act(Canada).
  3. 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

(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 specificly 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.

What Can I Do If I’m Charged By The Police?

If you have been charged by the police, the immediate first step should be to understand what you have been charged with and what legal options are open to you.  Making a legal misstep at the start of your case could lead to either a poorer outcome at court or being convicted where you else wise might have had a valid defence.  Retaining a paralegal is generally the most cost-effective way to provide your defence at court.  Paralegals are licenced and regulated by the Law Society just as lawyers are.  Paralegals know the law and the court process.  They are there to protect your interests at court and can generally do so without you ever having to file a court document or attend court.  

Our staff are here to help you.  OTD Ticket Defenders Legal Services provides 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 1-844-647-6869, by email at info@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.

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