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Cannabis Act Offences

The Charge

The newly enacted Cannabis Act provides a framework for legalizing, regulating and restricting access to cannabis in Canada. The goals of the Act are to restrict youth access to cannabis and to provide for the legal production and distribution of cannabis while promoting safe use and public awareness of the health risks associated with cannabis. The Act imposes serious criminal penalties on people who break the law, especially those who import or export cannabis illegally, produce cannabis illegally or provide cannabis to youth.

What is legal?

Subject to provincial or territorial restrictions, adults who are 19 or older (in British Columbia) may legally:

Purchase limited amounts of fresh cannabis, dried cannabis, cannabis oil or cannabis plants from authorized retailers;
Possess up to 30 grams of legal dried cannabis or equivalent in non-dried form;
Consume cannabis in locations authorized by local jurisdictions;
Grow up to 4 plants per household;
Share up to 30 grams of dried cannabis or equivalent with other adults.

What remains illegal?

All possession, production and distribution outside the legal system of the Cannabis Act remains illegal. The Act sets out various offences for “Criminal Activities,” with up to a maximum penalty of 14 years in jail.

To protect youth, the Cannabis Act prohibits selling cannabis to anyone under 18 years of age. Giving or selling cannabis to youth or involving a youth to commit a cannabis related offence (such as distribution) are punishable by jail.

Possession of illicit cannabis is unlawful under the Act. Illicit cannabis is cannabis obtained from a source other than a government or other licenced cannabis retailer.

Ticketable Offences

The Cannabis Act, under section 51, sets out that for the more minor cannabis offences, police may commence proceedings by issuing a ticket and a summons to attend court. The types of ticketable offences include minor contraventions such as:

  • Possessing more than 30 but less than 50 grams of dried cannabis or its equivalent;
  • Possessing up to 50 grams of illicit cannabis;
  • Distributing or selling up to 50 grams of cannabis;
  • Possessing 5 or 6 cannabis plants.

The fine for most Cannabis Act ticketable offences is $200.00. Of note, if a person pays the fine within the time period set out by regulation, the person, under s. 52 is found guilty but deemed to have received an absolute discharge.

Criminal Offences

Other than the ticketable offences for minor cannabis offences, the Cannabis Act calls for the criminal prosecutions in cases where, for example, the person is charged with:

  • Possessing more than 50 grams of dried cannabis (or its equivalent) in a public place;
  • Distributing more than 50 grams of dried cannabis (or its equivalent);
  • Distributing cannabis to an individual under 19 years of age (in British Columbia);
  • Exporting cannabis;
  • Producing, cultivating, propagating or harvesting cannabis in excess of 6 plants without authorization.

Recent Successes

R. vs. D.J. – Chilliwack Provincial Court

Charge: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether a criminal prosecution was appropriate.
Result: Mr. Mines was able to persuade Crown counsel to proceed pursuant to a s. 810 Peace Bond, and to enter a stay of proceedings on the criminal charge. After hearing Mr. Mines' submissions, the Court placed our client on the Peace Bond. No criminal record.

R. v. Q.C. – Insurance Fraud Investigation

Charge: Insurance fraud over $5000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the Insurance company to settle the matter on a civil basis. No criminal charhges were forwarded. No criminal record.

R. vs. D.K. – Surrey Provincial Court

Charges: Assault; assault with a weapon; breach of undertaking (x2); attempting to take weapon from police.
Issue: Whether our client's personal circumstances and positive rehabilitative steps made him a good candidate for a conditional discharge.
Result: Mr. Mines was able to persuade Crown counsel to proceed only on the common assault charge and to stay proceedings on the remaining four criminal charges. After hearing Mr. Mines'submissions, the Court granted our client a conditional discharge and placed him on probation for 12 months. No criminal conviction.

R. vs. A.S. – North Vancouver Provincial Court

Charges: Fraud Over $5,000 (x4); Theft Over $5,000 (x4).
Issue: Given that full restitution was made and that our client had taken significant steps toward self-rehabilitation, whether jail was the appropriate sentence for this $240,000 employee fraud.
Result: Mr. Mines was able to facilitate the restitution payment and provided medical information to Crown counsel on our client's behalf. Ultimately Mr. Mines persuaded Crown to  jointly  recommend a non-custodial sentence. After hearing Mr. Mines' submissions, our client was granted a 2 year less a day conditional senntence.. No jail.

R. vs. R.B. – Vancouver Provincial Court

Charges: Assault Causing Bodily Harm (reduced to assault).
Issue: Whether the caselaw supported our client receiving a conditional discharge for this domestic assault case in which the coplainant sustained a significant injury.
Result: Mr. Gauthier was able to provide Crown counsel with information about our client and a number of case authorities which resulted in Crown agreeing to proceed on assault simpliciter  and to make a joint recommendation for a conditional discharge, which was accepted by the court.

R. vs. D.T. – Vancouver Provincial Court

Charges: Assault causing bodily harm.
Issue: Given the parallel civil claim and the issue of  self defence, whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Gauthier was able to provide information about our client's circumstances and the circumstances of the incident which caused Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. P.G. – Richmond Provincial Court

Charges: Assault; Assault by Choking.
Issue: Whether our client was acting in self defence and whether he used excessive force.
Result: Mr. Mines was able to guide our client through a course of self rehabilitation and to persuade Crown to proceed on the lesser charge of simple assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge and declined to make the restitution order sought by the complainant. No criminal conviction.

R. vs. C.C. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $6,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter. No further liability. No criminal charges were forwarded.

R. vs. S.R. – Vancouver Provincial Court

Charges: Sexual assault; assault.
Issue: Whether the trial judge would allow Mr. Mines' application to cross examine the complainant on prior records (text messages) that impacted her credibility and reliability.
Result: The trial judge allowed our application in part, and ruled that the remaining issues could be renewed at at further point in the trial. Crown counsel entered a stay of proceedings after the conclusion of our application. No further prosection. No jail. no criminal record.

R. vs. A.J. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $13,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter in both the civil and criminal context. No further liability. No criminal charges.

R. vs. M.M. – New Westminster Police Investigation

Charge: Sexual Assault Investigation.
Issue: Whether there was sufficient evidence for police to recommend that criminal charges be approved.
Result: Mr. Gauthier was able to guide our client through the police investigation, and to provide police with information on our client's behalf. Ultimately, police decided not to forward any charge to Crow. No charges approved. No criminal record.

R. vs. C.T. – Insurance Fraud Investigation

Charges: Fraud Under $5,000
Issue: Given our client's repayment of the alleged fraudulent health insurance benefits, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to settle the matter civilly on our client's behalf without any further civil or criminal proceeding. No charges were approved.

The Defence

Because the Cannabis Act retains the power to regulate and punish for “criminal activity” associated with unauthorized distribution and possession of cannabis, criminal law defences will continue to apply to cannabis prosecutions.

Unreasonable Search

Section 8 of the Charter guarantees the right to be free from an unreasonable search. As experienced drug lawyers, we will analyze the actions of investigating officers to test whether police have, in fact, conducted a lawful search, based on reasonable grounds. Where police overreach their authority, and conduct a search based on a mere hunch or suspicion we will apply to the court under s. 24(2) of the Charter to have the evidence obtained through the unreasonable search excluded at trial. Without the admission of the cannabis that was unlawfully obtained, the court will find insufficient evidence to convict.

The Cannabis was not for the purpose of distribution or sale

In order to prove that possession was for the purpose of distribution or sale, the Crown will usually bring a police expert to court who will testify that the circumstances of the seizure, along with the packaging and weight of the cannabis tend to prove that the cannabis was intended to be distributed. Our experience in defending drug charges allows us to develop arguments aimed at challenging expert opinion that the circumstances of the cannabis seizure are only consistent with distribution and not simple possession. In many cases we have succeeded in negotiating possession for distribution charges down to simple possession charges to avoid jail sentences for our clients.

Lack of Possession

In many situations, accused persons are arrested without cannabis directly in their possession. For example, they may be driving someone else’s car and cannabis is found in an unmarked box in the trunk. A roommate may be charged with possession for distribution but none of the cannabis is found in their personal space of the residence. In these situations, the Crown will seek to prove possession through indirect, or circumstantial evidence. As experienced defence lawyers, we understand the Crown’s burden in proving that an accused had the requisite knowledge and control of the cannabis in order to be convicted. We are dedicated to holding the Crown to the high standard that the law requires when prosecuting cannabis offences. We are committed to defending our client’s rights as guaranteed by the Charter.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.