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Cannabis 101: Part 1 of 2

This week is our final look at cannabis laws in Ontario.  Since the October 17, 2018 legalization of cannabis for recreational use across Canada, there has been a flurry of activity in both legal and illegal cannabis dispensaries, law enforcement, and private citizens using or growing cannabis.  This has created a lot of questions for everyone involved as well as some inevitable stumbling blocks. 

If you’ve been reading along with our series on cannabis laws in Ontario, you’ll be aware of the incredibly high court penalties as well as police powers of seizure that can be applied for the illegal sale of cannabis.  Even landlords have a legal responsibility to ensure that their property is not being used for the illegal sale of cannabis and can be held accountable by the court. 

For everyday Ontarian’s cannabis may now seem commonplace and inconsequential.  They may not think twice about getting behind the wheel of their car while they have cannabis in their pocket or potentially under the influence of cannabis.  But doing so can readily run you into trouble with the law and facing consequences that can impact your life for years to come.

If you have a question that you haven’t yet seen answered, submit a blog question and we’ll either include it in a future article or send you back a direct response.  If you require more timely information such as having already been charged by the police, then you can submit an online consultation request and one of our staff will contact you to assist you.  There’s a lot more to discuss about cannabis laws in Ontario.

Let’s take a look!

How Much Evidence Does The Court Need That I Had Cannabis?

This is an interesting issue.  Some legal issues may require a very high burden of proof, potentially backed by an expert opinion or laboratory testing and confirmation.  However, under the Cannabis Control Act section 25.1 the court may in the absence of any contrary evidence infer that a substance is cannabis if a witness describes it as cannabis (or cannabis by an alternative name):

Court may make inferences

25.1 A court may, in the absence of evidence to the contrary, infer that any substance in question is cannabis from the fact that a witness describes it as cannabis or by a name that is commonly applied to cannabis. 2018, c. 12, Sched. 1, s. 17.

No expert opinion or accredited-laboratory testing required.  Just the opinion of a witness.  It is then the burden of the defence to provide evidence to the contrary if they can do so.

Can My Band Council Make Special Arrangements With The Government About Cannabis?

Yes.  The Cannabis Control Act sections 26(1) and 26(2) provide authority for the government to make legal agreements with a band council regarding the “sale, distribution, purchase, possession, consumption, cultivation, propagation or harvesting” of cannabis on a reserve:

Agreement with council of the band

26 (1) Subject to subsection (2) and to the approval of the Lieutenant Governor in Council, the Minister may, on behalf of the Crown, enter into arrangements and agreements with a council of the band with respect to the sale, distribution, purchase, possession, consumption, cultivation, propagation or harvesting of cannabis on a reserve.

Same, requirement for agreement with other ministers

(2) If an arrangement or agreement referred to in subsection (1) relates, in whole or in part, to the sale of cannabis, the Minister may only enter into the arrangement or agreement jointly with,

(a) the Minister responsible for the administration of the Ontario Cannabis Retail Corporation Act, 2017;

(b) the Minister of Finance, if the Minister referred to in clause (a) is not the Minister of Finance; and

(c) the Minister responsible for the administration of the Cannabis Licence Act, 2018. 2018, c. 12, Sched. 1, s. 18.

Definitions:

council of the band” has the same meaning as in subsection 2 (1) of the Indian Act (Canada); (“conseil de la bande”)

Indian” has the same meaning as in subsection 2 (1) of the Indian Act (Canada); (“Indien”)

reserve” means a reserve as defined in subsection 2 (1) of the Indian Act (Canada) or an Indian settlement located on Crown land, the Indian inhabitants of which are treated by Indigenous and Northern Affairs Canada in the same manner as Indians residing on a reserve. (“réserve”)

What Is An “Approved Youth Education Or Prevention Program?”

The Cannabis Control Act sections 20 and 23(7) make reference to “an approved youth education or prevention program” in regards to either a police officer or the court referring someone under the age of 19 to such a program.  This referral at court may be a condition of probation or in lieu of court penalties being issued against the defendant.  Such programs must be approved by the government under the Cannabis Control Act section 27(1):

Youth education, prevention programs

Approval

27 (1) The Minister may approve education or prevention programs pertaining to the use of cannabis or drugs, health and wellbeing, or any other matter the Minister considers appropriate, for the purposes of section 20 and subsection 23 (7).

Where Can I Find “An Approved Youth Education Or Prevention Program?”

Under section 27(2) of the Cannabis Control Act, the government must maintain a list of approved youth education or prevention programs that is publicly accessible on the Government of Ontario website:

Publication

(2) The Minister shall maintain a list of the programs approved under subsection (1) on a publicly accessible Government of Ontario website.

Programs like the Youth Cannabis Diversion Program cover topics such as:

  • Definition Of Cannabis, The Law And What It Means To You
  • Demonstrate a Better Understanding of Why Some Youth Use Cannabis and Why Some Youth Don’t
  • Assess The Impacts Of Cannabis On Youth
  • Describe Ways to Protect Yourself from the Harms of Cannabis
  • The Impact of Driving While Impaired by Cannabis

As A Novice Driver What Do I Need To Know About Cannabis?

Novice drivers are drivers that have not yet achieved a full driver’s licence through Ontario’s graduated licencing program.  This includes G1, G2, M1, M2, M2-L or M2-M class licences.  Under Highway Traffic Act section 44.2(1) novice drivers are prohibited from driving while under the influence of drugs as determined by an “approved drug screening equipment” as follows:

Condition on licence prohibiting presence of a drug

Novice drivers

44.2 (1) It is a condition of the driver’s licence of every novice driver that there be no drug in his or her body, as indicated by approved drug screening equipment, while he or she is driving a motor vehicle on a highway. 2017, c. 26, Sched. 4, s. 5.

What Penalties Could I Face As A Novice Driver If Convicted Of Driving Under The Influence Of Cannabis?

If, as a novice driver, you are convicted of driving while under the influence of cannabis under Highway Traffic Act section 44.2(1), you would face the following penalties:

Penalty, novice drivers

(4) Every novice driver who contravenes the condition of his or her driver’s licence imposed under subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500. 2017, c. 26, Sched. 4, s. 5.

This fine would also be subject to an additional victim fine surcharge.

On top of a record of conviction, increases to insurance costs, and court penalties, you would also be subject to escalated sanctions penalties.  These are penalties that are applied to novice drivers under specific conditions such as being convicted of driving under the influence of drugs or alcohol.  The exact penalty depends on whether it is the first, second, or third time that you have triggered escalated sanctions penalties:

  • For a first offence: your driver’s licence is suspended for 30 days.
  • For a second offence: your driver’s licence is suspended for 90 days.
  • For a third offence: you will lose your novice licence.  You will need to re-apply for your licence and start all over, taking all tests and paying all fees. You will also lose any time discount you earned, any time you were credited, and any fees you have paid.

As A Young Driver What Do I Need To Know About Cannabis?

Young drivers are drivers that are 21 years of age or younger.  Just like novice drivers, they are prohibited from driving while under the influence of drugs such as cannabis.  This law is described under Highway Traffic Act section 44.2(2):

Young drivers

(2) It is a condition of the driver’s licence of every young driver that there be no drug in his or her body, as indicated by approved drug screening equipment, while he or she is driving a motor vehicle on a highway. 2017, c. 26, Sched. 4, s. 5.

The penalties for being convicted under HTA section 44.2(2) are as follows:

Same, young drivers

(6) Every young driver who contravenes the condition of his or her driver’s licence imposed under subsection (2) is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500 and his or her driver’s licence is thereupon suspended for 30 days. 2017, c. 26, Sched. 4, s. 5.

This fine would also be subject to an additional victim fine surcharge.  Unlike the court penalties for novice drivers, a young driver faces a mandatory 30 day driver’s licence suspension from the court as they are not subject to escalated sanctions penalties.

Is There Any Exemption For Novice Or Young Driver’s Under The Influence Of Cannabis?

Yes.  Under Highway Traffic Act section 44.2(3) novice and young drivers can not be charged under HTA sections 44.2(1) or 44.2(2) respectively if they are legally authorized to use the drug(s) for medical purposes:

Exception

(3) Subsection (1) or (2), as the case may be, does not apply where a police officer is satisfied that the driver is legally authorized to use a drug or drugs for medical purposes, and has that drug or drugs in his or her body, as indicated by approved drug screening equipment. 2017, c. 26, Sched. 4, s. 5.

Where Can I Find The Full Copy Of The Cannabis Act?

The Cannabis Act is the federal level law governing cannabis across Canada.  The complete text of the Cannabis Act can be found here.

Where Can I Find The Full Text Of Ontario’s Cannabis Control Act?

In Ontario, the main legal rules governing cannabis are detailed within the Cannabis Control Act.  The full text of the Cannabis Control Act can be found here.

Where Can I Find The Full Text Of Ontario’s Highway Traffic Act?

In Ontario, a large portion of the laws regarding the driving of vehicles, including impairment by drugs such as cannabis, are found in the Highway Traffic Act (HTA).  The full text of Ontario’s Highway Traffic Act can be found here.

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

Hopefully you have enjoyed our series on cannabis laws in Ontario.  This is an exciting new area of law in Ontario that you need to know about in protecting yourself from being charged by the police and facing penalties at court.  If you have already been charged by the police, you’re going to need to know what you’ve been charged with, what consequences you’re facing if convicted, and what you can do to protect yourself.  Generally the most cost-effective and low-stress way to do this is by hiring a licenced and experienced paralegal.  Paralegals know the law and the court process.  In many cases, once you have hired a paralegal, you will never need to file a court document or appear at court.

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.  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.

 

Posted under Cannabis, Novice Drivers, Youth Offenders

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