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Cannabis 101: Part 5 of 5

The federal Cannabis Act and provincial level Cannabis Control Act of Ontario are the two main bodies of law that the average Ontarian needs to be mindful of now that the recreational use of cannabis is legal across Canada. However, it is also necessary to watch other pieces of law such as Ontario’s Highway Traffic Act which have also been updated to come in line with the recent legalization of cannabis. 

If you’ve already read last week’s article that dealt with the potential court penalties for a conviction under the Cannabis Control Act, you’re aware that court fines can go as high as $100,000.00 or more depending on the nature of the conviction.  Some convictions can also come with terms of imprisonment.  The court can also hold a director or officer of a corporation legally liable of an offence.  If you haven’t already read the previous articles in our frequently asked questions about cannabis law in Ontario, you may wish to do so!

If you have a question that you haven’t yet read an answer to, feel free to submit a blog question and we’ll either answer it in a future article or send you a direct response for your question.  If you have already been charged by the police with a cannabis related offence, a more immediate and timely route to get answers is by submitting an online consultation request.  One of our staff can then contact you directly to go through your case history and details with you and answer your questions.  Although we’ve certainly gone through a lot of questions and answers so far, there’s a lot more to know.

Let’s take a look!

Can I Face Other Court Penalties For A Cannabis Conviction?

Yes.  Last week we discussed some of the incredibly serious penalties such as fines and imprisonment that can be issued by the court for a conviction under the Cannabis Control Act.  However, upon conviction the court may also make additional orders that the defendant will be required to abide by.   These orders may be solely at the court’s discretion and initiative, or they may be considered at the request of the prosecutor.  Under Ontario’s Cannabis Control Act section 24, there are four possible orders that the court can make:

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

Let’s take a look at these potential orders.  The first option is that the court may issue an order that you must do (or not do) something as defined by the court.  This order can be set for a specific period of time or it may be set to cover multiple periods of time.  This section of the Cannabis Control Act does not place an limitation on the duration of such an order or how many periods of time may be set.

The second type of order would be a court-imposed requirement appropriate to prevent the defendant from re-offending or to help contribute with their rehabilitation.  Outside of the general wording of this guideline, there are no specific details or limits upon what the court order could include.

The third type of court order is much more straight forward.  This type of court order would be to prohibit the defendant from continuing or repeating the offence of which they were convicted.  Effectively:  “Don’t do it again.”  But with the authority of the court and the consequences that come with breaking a court order.

The fourth type of court order refers to the closure of a premises under the Cannabis Control Act section 25, which we’ll talk about next.

If Convicted Of A Cannabis Offence, Can The Court Order A Closure Of My Premises?

Yes.  As discussed in the previous section, upon conviction of the defendant the court can issue various orders at its discretion.  One such order is that the premises involved in the offence be closed.  The authority to do so is provided under the Cannabis Control Act section 25(1) as follows:

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,

(a) the person was convicted for contravening section 6, and the premises was used in the contravention; or

(b) the person was convicted for contravening section 13 in relation to the premises.

As noted, the conviction must either be for an offence that occurred under section 6 (the unlawful sale or distribution of cannabis) or section 13 (where a landlord has knowingly permitted their property to be used for a relevant cannabis-related offence).  The duration of the closure of the premises in the court order can not exceed a period of more than two years.

Can I Still Enter A Premises That Has Been Ordered Closed By The Court?

No.  Under the Cannabis Control Act section 25(2), any premises that has been ordered closed under section 25(1) shall be barred from entry by the police:

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.

This barring of entry applies to all entrances to the premises.  The location will also remain barred from entry until such time as the court order is suspended or discharged.

Can I Apply For The Order Of Closure To Be Suspended By The Court?

Yes.  If you are a person who has an interest in the premises that has been ordered closed by the court (such as the property owner), you can make an application to the court for a suspension of that order.  The details of such an application are set out under the Cannabis Control Act section 25(3) as follows:

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,

(a) 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

(b) 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.

The granting of such an application will set out the period for which the order of closure has been suspended along with any conditions specified by the court.  The two conditions under which such an order of suspension may be issued include that the property not be used for the illegal sale or distribution of cannabis, and, that the applicant post a cash bond for $10,000.00 or more as specified by the court.

What Happens To My Order of Suspension And Cash Bond If There Is A New Conviction?

Section 25(3) of the Cannabis Control Act details what occurs if the defendant is convicted for a new offence regarding the illegal sale or distribution of cannabis at the same location during the period of time that the court ordered closure has been suspended:

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.

Three things may occur if this happens:

  • Forfeiture of the cash bond to the Crown
  • Lifting of the suspension of closure order
  • Reinstatement of the order of closure

Can I Appeal A Forfeiture Of My Cash Bond And Reinstatement Of The Closure?

Unfortunately the answer is no.  The law under the Cannabis Control Act section 25(5) is very short and concise:

No appeal

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

An order made under the previous section is final and may not be appealed.

Can I Apply For An Order Of Closure To End Early?

Yes.  Under the Cannabis Control Act section 25(6), the court may grant a request to have an order of closure discharged if it is satisfied of the following:

Discharge

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

(a) 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

(b) 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.

The first condition that will have to proven to the court’s satisfaction is that the premises has either had an effective change or ownership or occupation since the commission of the original offence.  The second condition that must also be met is that the owner can prove to the court’s satisfaction that the premises will not contravene the laws surrounding the illegal sale or distribution of cannabis again.  

What Happens If I Appeal My Cannabis Conviction Or Order Of Closure?

Under the Cannabis Control Act section 25(7), if you have filed an appeal of your original conviction or an order of closure, you may also apply for the order of closure to either be suspended or discharged:

If closing order, conviction appealed

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

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

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

Can My Order Of Closure Be Stayed If I Appeal It Or My Conviction?

No.   The Cannabis Control Act section 25(8) specifically prohibits that an order or closure not be stayed due to an appeal made under the previous section:

Same, no stay

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

What Should I Do If I’m Charged By The Police With A Cannabis Offence?

We’ve looked at a lot of questions and answers about Cannabis-related laws in Ontario.  Next week will be our final look at this area of law, make sure not to miss out on it!  If you have a question that hasn’t yet been answered, submit a blog question and we’ll answer it for you either directly or in a future article.  If you have actually been issued a charge by the police for a cannabis-related offence, you are going to need much more immediate help and information.  Once a offence has been issued by the police, you will have a fixed timeline on what must be done in responding to the court.  Failing to do so or making a legal misstep could result in your being convicted.  If you are convicted by the court through an error that you made, your legal options will generally be fewer and more expensive.  

The best time seek out information and legal help is as early as possible after having been charged by the police.  Our friendly staff are here to help you.  We offer a no-cost, no-obligation initial consultation to go through your case history and details with you.  A few minutes on the phone can help ease your mind and help ensure that you are making informed decisions.  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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