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Cannabis 101: Part 2 of 2

Cannabis legalization is new to Ontario.  Much of the new laws surrounding cannabis are new to both regular Ontarians as well lawyers and paralegals.  Along with new freedoms and legalization has come a proportionate amount of legal restrictions and responsibilities.  Fortunately the government has put effort into a public awareness campaign to help mitigate that.  Last week we went through some of the more commonly asked questions about the laws surrounding cannabis use in Ontario.  This week we’ll look at more of those questions.

If you have a question that is not answered, you can submit a blog question and we will either include it in a future article or ensure that you get a direct response to your question.  If you have actually been charged with an offence by the police, it is important to get more timely information by making an online consultation request.  

Let’s take a look!

Do I Have Responsibilities As A Landlord?

Definition:

“landlord” means, in respect of a premises, a person who is a lessor, owner or person permitting the occupation of the premises, and includes an owner of a premises that has not been vacated by the tenant despite the expiry of the tenant’s lease or right of occupation.

Yes.  Under the section 13(1) of Cannabis Control Act in Ontario a Landlord has the following legal responsibility:

Landlords

13 (1) No person shall knowingly permit a premises of which he or she is a landlord to be used in relation to an activity prohibited by section 6.

Section 6 of the Cannabis Control Act prohibits the illegal sale or distribution 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).

Distribution

(2) No person shall distribute cannabis that is sold, or that is intended to be sold, other than by an authorized cannabis retailer. 2018, c. 12, Sched. 1, s. 7 (2).

This section of law is certainly of concern to any Ontario landlord.  What the tenant does in the rented property can result in the direct legal liability of the landlord whether you are the property owner or the person renting out the property on behalf of the owner.  There is of course only so much that a landlord can do.  You can include the legal terms in a rental agreement prohibiting the illegal sale or distribution of cannabis.  Alternately you or your representative could periodically check on the property to see if any illegal activity is occurring.  But how much due diligence are you required to undertake?  Section 13(2) does provide an exemption to landlords that take reasonable measure to prevent such activity.  However, this section of law does not provide any objective standard as to what qualifies as ‘reasonable measures to prevent the activity’:

Defence

(2) It is a defence to a charge under subsection (1) that the defendant took reasonable measures to prevent the activity.

Do I Have To Provide Proof Of Medical Use To Police?

Yes.  If you are asking a police officer for a legal exemption provided for under one of the sections of the Cannabis Control Act, you are required to do so:

Requirement to demonstrate exemption

14 A person who attempts to rely on an exemption under this Act, or on the non-application of any provision of this Act or the regulations, shall, on the demand of a police officer,

(a) provide to the police officer the document or other thing specified by the regulations to confirm the exemption or non-application; or

(b) if no document or other thing is specified by the regulations with respect to the exemption, demonstrate to the police officer’s satisfaction the applicability of the exemption or non-application.

Failing to provide that documentation to the satisfaction of the police officer may result in being charged.  Once charged by the police, the onus would then be on you or your legal representative to argue the exemption at court.

Can I Get Into Legal Trouble Even After Illegally Selling Cannabis?

Definition:

“proceeds”, in relation to an offence under this Act, means,

(a) personal property, other than money, derived in whole or in part, directly or indirectly, from the commission of the offence, and

(b) money derived directly or indirectly from the commission of the offence.

Yes.  Whether you sold cannabis illegally or someone else did and you have anything directly or indirectly from that illegal sale that could be considered “proceeds,” you could then be charged under section 15(1) of the Cannabis Control Act:

Possession of proceeds

15 (1) No person shall knowingly possess the proceeds of an offence under this Act.

A key word in this section is “knowingly.”  If you know that the money or personal property came directly or indirectly from an offence under the Cannabis Control Act, you are potentially getting into legal trouble for accepting it.

Can The Police Take My Cannabis From Me?

Yes.  Under section 16 of the Cannabis Control Act, the police do have the authority to seize anything (including your cannabis) under the following conditions:

Seizure

16 (1) A police officer may seize any thing, including cannabis, if the police officer has reasonable grounds to believe that,

(a) the thing will afford evidence of an offence under this Act;

(b) the thing was used or is being used in connection with the commission of an offence under this Act, and unless the thing is seized it is likely that it would continue to be used or would be used again in the commission of an offence under this Act; or

(c) the thing is proceeds of an offence under this Act.

So, the first legal basis for seizure could be that your cannabis is being seized as evidence that may be used against you at court.  The second legal definition could be that it is necessary to seize the item (such as your cannabis) to prevent it from being used to continue to commit an offence under the Cannabis Control Act.  One possible example might be someone under 19 having their cannabis seized to prevent them from further contravening the law that people under the age of 19 can not possess or use cannabis.  The third definition is that if the item falls under the definition of “proceeds,” it can be deemed open to seizure.  An example here might be if you were paid by receiving an amount of cannabis in compensation for having illegally sold cannabis.

Section 16(2) of the Cannabis Control Act goes on to further define the scope of seizure to also include any packages in which the cannabis was kept:

(2) If an offence appears to have been committed under this Act and a police officer has reasonable grounds to believe, in view of the offence apparently committed and the presence of cannabis, that a further offence is likely to be committed, the police officer may seize the cannabis and any packages in which it is kept.

Can I Ever Get My Cannabis Back From The Police?

Sometimes, yes.  However, you would need to apply within 30 days for your cannabis or other seized items to be returned to you.  However, the following four conditions would need to be met:

Order of restoration

(3) The Ontario Court of Justice may, on the application of any person made within 30 days after a seizure under subsection (1) or (2), order that the things seized be restored without delay to the applicant if the court is satisfied that,

(a) the applicant is entitled to possession of the things seized;

(b) the things seized are not required as evidence in any proceeding;

(c) continued detention of the things seized is not necessary to prevent the commission of an offence; and

(d) it is unlikely that the things will be forfeited on conviction in accordance with an order made under subsection (6).

However, if you are not legally allow to possess the item (such as cannabis for someone under the age of 19), or, the seized items are needed for evidence at court, or, the items could result in you continuing to break the law (such as cannabis that was being illegally sold that you may continue to illegally sell), or, if the items are unlikely to be forfeited at court upon conviction at court…then you’re not getting it back at least at that time.  The court must be satisified on all 4 conditions for your property to be returned to you.

However, if you were legally allowed to possess the item(s) seized but could not meet the three conditions under subsections (b), (c), and (d), then you can eventually have those items returned to you if one of the following two conditions are met under the Cannabis Control Act section 16(4):

(4) If the court is satisfied that an applicant under subsection (3) is entitled to possession of the things seized but is not satisfied as to all of the matters mentioned in clauses (3) (b), (c) and (d), it shall order that the things seized be restored to the applicant,

(a) on the expiration of three months after the date of the seizure, if no proceeding in respect of an offence has been commenced; or

(b) on the final conclusion of any such proceeding.

So long as you were allowed to possess the item(s) and no legal proceeding has commenced against you after 3 months from the date of the seizure, the court can order that your property be returned to you.  Or, if you were legally allowed to have the item(s) they can be returned to you at the end of your case at court.

Could My Cannabis Be Gone Forever If The Police Seize It?

Potentially, yes.  If the police have lawfully seized your cannabis or property it could be forfeited permanently to the Crown.  This occurs under the Cannabis Control Act section 16(5) if you have either not made an application for your property to be returned or if the court heard your application but did not grant an order of restoration:

Forfeiture

(5) If no application has been made for the return of a thing seized under subsection (1) or (2), or an application has been made but on the hearing of the application no order of restoration has been made, the thing seized is forfeited to the Crown. Cannabis legalization is new to Ontario.  Much of the new laws surrounding cannabis are new to both regular Ontarians as well lawyers and paralegals.  Even the courts are still sorting out all of the new laws and how they apply.  Along with new freedoms and legalization has come a proportionate amount of legal restrictions and responsibilities.  Fortunately the government has put effort into a public awareness campaign to help mitigate that.  Last week we went through some of the more commonly asked questions about the laws surrounding cannabis use in Ontario.  This week we’ll look at more of those questions.

If you have a question that is not answered, you can submit a blog question and we will either include it in a future article or ensure that you get a direct response to your question.  If you have actually been charged with an offence by the police, it is important to get more timely information by making an online consultation request.  

Let’s take a look!

Do I Have Responsibilities As A Landlord?

Definition:

“landlord” means, in respect of a premises, a person who is a lessor, owner or person permitting the occupation of the premises, and includes an owner of a premises that has not been vacated by the tenant despite the expiry of the tenant’s lease or right of occupation.

Yes.  Under the section 13(1) of Cannabis Control Act in Ontario a Landlord has the following legal responsibility:

Landlords

13 (1) No person shall knowingly permit a premises of which he or she is a landlord to be used in relation to an activity prohibited by section 6.

The referred to section 6 of the Cannabis Control Act prohibits the illegal sale or distribution 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).

Distribution

(2) No person shall distribute cannabis that is sold, or that is intended to be sold, other than by an authorized cannabis retailer. 2018, c. 12, Sched. 1, s. 7 (2).

This section of law is certainly of concern to any Ontario landlord.  What the tenant does in the rented property can result in the direct legal liability of the landlord whether you are the property owner or the person renting out the property on behalf of the owner.  There is of course only so much that a landlord can do.  You can include the legal terms in a rental agreement prohibiting the illegal sale or distribution of cannabis.  Alternately you or your representative could periodically check on the property to see if any illegal activity is occurring.  But how much due diligence are you required to undertake?  Section 13(2) does provide an exemption to landlords that take reasonable measures to prevent such activity.  However, this section of law does not provide any objective standard as to what qualifies as ‘reasonable measures to prevent the activity’:

Defence

(2) It is a defence to a charge under subsection (1) that the defendant took reasonable measures to prevent the activity.

Do I Have To Provide Proof Of Medical Use To Police?

Yes.  If you are asking a police officer for a legal exemption provided for under one of the sections of the Cannabis Control Act, you are required to do so:

Requirement to demonstrate exemption

14 A person who attempts to rely on an exemption under this Act, or on the non-application of any provision of this Act or the regulations, shall, on the demand of a police officer,

(a) provide to the police officer the document or other thing specified by the regulations to confirm the exemption or non-application; or

(b) if no document or other thing is specified by the regulations with respect to the exemption, demonstrate to the police officer’s satisfaction the applicability of the exemption or non-application.

Failing to provide that documentation to the satisfaction of the police officer may result in being charged.  Once charged by the police, the onus would then be on you or your legal representative to argue the exemption at court.

Can I Get Into Legal Trouble Even After Illegally Selling Cannabis?

Definition:

“proceeds”, in relation to an offence under this Act, means,

(a) personal property, other than money, derived in whole or in part, directly or indirectly, from the commission of the offence, and

(b) money derived directly or indirectly from the commission of the offence.

Yes.  Whether you sold cannabis illegally or someone else did and you have anything directly or indirectly from that illegal sale that could be considered “proceeds,” you could then be charged under section 15(1) of the Cannabis Control Act:

Possession of proceeds

15 (1) No person shall knowingly possess the proceeds of an offence under this Act.

A key word in this section is “knowingly.”  If you know that the money or personal property came directly or indirectly from an offence under the Cannabis Control Act, you are potentially getting into legal trouble for possessing it.

Can The Police Take My Cannabis From Me?

Yes.  Under section 16 of the Cannabis Control Act, the police do have the authority to seize anything (including your cannabis) under the following conditions:

Seizure

16 (1) A police officer may seize any thing, including cannabis, if the police officer has reasonable grounds to believe that,

(a) the thing will afford evidence of an offence under this Act;

(b) the thing was used or is being used in connection with the commission of an offence under this Act, and unless the thing is seized it is likely that it would continue to be used or would be used again in the commission of an offence under this Act; or

(c) the thing is proceeds of an offence under this Act.

So, the first legal basis for seizure could be that your cannabis is being seized as evidence that may be used against you at court.  The second legal definition could be that it is necessary to seize the item (such as your cannabis) to prevent it from being used to continue to commit an offence under the Cannabis Control Act.  One possible example might be someone under 19 having their cannabis seized to prevent them from further contravening the law that people under the age of 19 can not possess or use cannabis.  The third definition is that if the item falls under the definition of “proceeds,” it can be deemed open to seizure.  An example here might be if you were paid by receiving an amount of cannabis in compensation for having illegally sold cannabis.

Section 16(2) of the Cannabis Control Act goes on to further define the scope of seizure to also include any packages in which the cannabis was kept:

(2) If an offence appears to have been committed under this Act and a police officer has reasonable grounds to believe, in view of the offence apparently committed and the presence of cannabis, that a further offence is likely to be committed, the police officer may seize the cannabis and any packages in which it is kept.

Can I Ever Get My Cannabis Back From The Police?

Sometimes, yes.  However, you would need to apply within 30 days for your cannabis or other seized items to be returned to you.  To do so, the following four conditions would need to be met:

Order of restoration

(3) The Ontario Court of Justice may, on the application of any person made within 30 days after a seizure under subsection (1) or (2), order that the things seized be restored without delay to the applicant if the court is satisfied that,

(a) the applicant is entitled to possession of the things seized;

(b) the things seized are not required as evidence in any proceeding;

(c) continued detention of the things seized is not necessary to prevent the commission of an offence; and

(d) it is unlikely that the things will be forfeited on conviction in accordance with an order made under subsection (6).

However, if you are not legally allow to possess the item (such as cannabis for someone under the age of 19), or, the seized items are needed for evidence at court, or, the items could result in you continuing to break the law (such as cannabis that was being illegally sold that you may continue to illegally sell), or, if the items are unlikely to be forfeited at court upon conviction at court…then you’re not getting your property back at least at that time.  The court must be satisfied on all 4 conditions for your property to be returned to you.

However, if you were legally allowed to possess the item(s) seized but could not meet all the three conditions under subsections (b), (c), and (d), then you can eventually have those items returned to you if one of the following two conditions are met under the Cannabis Control Act section 16(4):

(4) If the court is satisfied that an applicant under subsection (3) is entitled to possession of the things seized but is not satisfied as to all of the matters mentioned in clauses (3) (b), (c) and (d), it shall order that the things seized be restored to the applicant,

(a) on the expiration of three months after the date of the seizure, if no proceeding in respect of an offence has been commenced; or

(b) on the final conclusion of any such proceeding.

So long as you were allowed to possess the item(s) and no legal proceeding has commenced against you after 3 months from the date of the seizure, the court can order that your property be returned to you.  Or, if you were legally allowed to have the item(s) they can be returned to you at the end of your case at court.

Could My Cannabis Be Gone Forever If The Police Seize It?

Potentially, yes.  If the police have lawfully seized your cannabis or property it could be forfeited permanently to the Crown.  This occurs under the Cannabis Control Act section 16(5) if you have either not made an application for your property to be returned or if the court heard your application but did not grant an order of restoration:

Forfeiture

(5) If no application has been made for the return of a thing seized under subsection (1) or (2), or an application has been made but on the hearing of the application no order of restoration has been made, the thing seized is forfeited to the Crown.

The court can also order a forfeiture of your property under the following circumstance:

Same

(6) If a person is convicted of an offence under this Act, the court that convicts the person shall order that any thing seized under subsection (1) or (2) in connection with the offence be forfeited to the Crown, unless the court considers that the forfeiture would be unjust in the circumstances.

Sections 16(7) and 16(8) of the Cannabis Control Act do accommodate that a person with an interest in the seized property can apply to the court for relief against its forfeiture.  However, the court would need to be satisfied that the relief against forfeiture would be just and meet at least one of the following conditions:

Relief against forfeiture

(7) Any person with an interest in a thing forfeited under this section may apply to the Superior Court of Justice for relief against the forfeiture and the court may make an order providing for any relief that it considers just, including, but not limited to, one or more of the following orders:

  1. An order directing that the thing or any part of the thing be returned to the applicant.
  2. An order directing that any interest in the thing be vested in the applicant.
  3. An order directing that an amount be paid by the Crown to the applicant by way of compensation for the forfeiture.

Same

(8) The court shall not order any relief under subsection (7) unless it is satisfied that the applicant did not, directly or indirectly, participate in, or benefit from, any offence in connection with which the thing was seized.

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

We’ve gone through a lot of questions and answers about cannabis and there’s more to come in next week’s article.  Make sure not to miss out on it!  If you haven’t yet seen an answer to a question that you have, feel free to submit a blog question and we’ll answer it for you!

If you’ve actually been charged by the police with a cannabis related offence, the best thing to do would be to contact one of our staff so that we can assist you directly.  We assist our clients across Ontario and in Quebec every day with charges having to do with the Cannabis Control Act, the Highway Traffic Act, and the Compulsory Automobile Insurance Act.  We’re here to help you.

Our friendly staff can assist you with 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. 

The court can also order a forfeiture of your property under the following circumstance:

Same

(6) If a person is convicted of an offence under this Act, the court that convicts the person shall order that any thing seized under subsection (1) or (2) in connection with the offence be forfeited to the Crown, unless the court considers that the forfeiture would be unjust in the circumstances.

NOTICE:

The information contained herein this article is for informational purposes only. This information is not intended or to be perceived as legal advice. If you have been charged with an offence and are seeking legal advice, we can help! Please fill out a consultation and a former prosecutor will contact you to discuss the charge and get you on the right track.

Posted under Cannabis, Traffic Ticket Defence

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