The topic of the legality of marijuana can be quite confusing at the moment. With marijuana dispensaries popping up, discussions on medical marijuana, and the potential for legalization of the substance in 2018, it can be quite difficult to keep up to date. Before wandering down to a local dispensary to purchase marijuana, you might want to know the legal status of possession of marijuana.
Despite what television, internet sources, or your friends have told you, the possession of marijuana in Canada is still a criminal offense under the Controlled Drugs and Substances Act (CDSA). This includes possessing any amount of marijuana.
Access to marijuana for medical purposes is controlled through regulations made under the CDSA, the Access to Cannabis for Medical Purposes Regulations. The maximum amount of marijuana that a person can possess with a licence for medical marijuana is limited under these regulations to 150 grams of dried marijuana. In the case of substances obtained from a licenced producer or products originating form those substances, a person is allowed to possess 30 times the daily quantity of dried marijuana that the health care practitioner authorizes for that person. In the case of substances obtained from a hospital or for out-patient products originating form those substances, it is also 30 times the daily quantity of marijuana, expressed in grams, that is authorised in the prescription, written order, or cannabis medical document. The idea behind 30 times the prescribed amount relates to a person being allowed to possess a 30-day supply. A licenced person cannot possess more than the least amount of either: a 30-day supply or 150 grams. If a licenced person is prescribed 3 grams of marijuana per day, they can possess a maximum of 90 grams, not 150 grams.
Some persons may also produce marijuana for their own medical purposes. The maximum number of plants under production is regulated by formulas, which change depending on whether the production is entirely indoors, outdoors, or partly indoors and partly outdoors. For example, the equation for production entirely indoors is D = [(A x 365) ÷ (B x C)] x 1.2. D is the maximum amount of plants that may be under production; C is a constant equal to 1, representative of the growth cycle of a marijuana plant; and A is the daily quantity of dried marijuana that is indicated on the medical document.
There is a list of licenced producers who are authorized to produce and sell marijuana. In Canada, there are a total of 76. 43 of which are in Ontario. Health Canada’s website indicates that after being prescribed marijuana, you should register with a licenced producer to obtain cannabis products for your own medical use.
The amount of marijuana you have in your possession can dictate how you will be charged. If you are convicted of possession of under 1 gram of cannabis resin or under 30 grams of marijuana, is guilty of an offence punishable on summary conviction, for which the maximum penalty is a fine of $1000 or 6 months in prison or both for a first offence. For a second offence: to a fine not exceeding $2000 dollars or imprisonment for a term not exceeding one year, or both. If it’s your first offence, however, then you may be eligible for a discharge if you meet the conditions.
The higher the quantity of marijuana, the more likely that one can be charged with possession for the purpose of trafficking, which is much more serious than simple possession. Possession for the purpose of trafficking in a Schedule II substance contrary to section 5(2) of the CDSA, carries a maximum imprisonment term of life.
There are a number of minimum penalties that apply for certain drug possession offences, or where certain criteria are met. For example, if the drug offence was committed in association with a criminal organization, violence or a weapon was involved, or the offender has a record for a drug offence.
Some of these mandatory minimums have been struck down by the Courts because they are inconsistent with the Charter of Rights and Freedoms. For example, in R. v. Lloyd 2016 SCC 13, the Supreme Court of Canada struck down the provision requiring a mandatory minimum of one year for a conviction of possession for the purpose of trafficking, if the person had been convicted or imprisoned for a drug offence in the previous ten years.
Others mandatory minimums have not yet been litigated. If you find yourself charged with an offence that carries a mandatory minimum penalty, it may be appropriate to bring a constitutional challenge to the legislation.
Marijuana possession is still a crime in Canada. A criminal conviction for possession of marijuana can affect your ability to travel or apply for certain jobs. An experienced lawyer is essential in facing any criminal charge. If you’re ever charged with possession of marijuana, call us at Weisberg Law.