Cannabis plant/Shutterstock
There has been a great deal of discussion about the British Columbia Cannabis Act, but there has not been a solid breakdown of all of the offences under the Act. In an effort to provide a helpful guide, this post summarizes all the offences laid out in the Cannabis Act.
What is particularly interesting about the penalties in the Cannabis Act, is that many of the offences for possession, production, and distribution mimic those in the proposed federal regulations. This would mean that police have the opportunity to charge individuals under the provincial law or the federal law.
If charged under the provincial law, a person would not receive a criminal record. Only a federal offence can give a person a criminal record. In some respects, despite the consequences being as severe as they are, a charge under BC’s Cannabis Act may be a more lenient way to prosecute cannabis offences. Furthermore, the provincial law, if used as a substitute for the federal prosecutions, would serve the goal of effectively decriminalizing marijuana.
A good example similar to this is the impaired driving law. In Canada, impaired driving offences are criminal offences under the Criminal Code. However, in British Columbia many impaired drivers are dealt with under the Motor Vehicle Act and issued an Immediate Roadside Prohibition. This means that they escape criminal conviction and a criminal record for conduct that would otherwise likely lead to a criminal charge.
In many ways, this is a sensible way to break down the law. But there is further sense in the breakdown. The law differentiates between offences and administrative sanctions. So even those provincial offences, for which a person would not receive a criminal record, can in certain circumstances be dealt with administratively. However, theAct also contemplates that a person can both be charged with an offence and punished administratively. While this may seem wrong, there is recent legal authority in British Columbia that suggests this is lawful.
That being said, it is my prediction that if a person is dealt with administratively and pays the fine, there will be no prosecution.
Possession
Under the Act, the only persons who may possess cannabis are as follows:
1. The government;
2. A person who has an agreement with the government;
3. A person who has a license under the federal Cannabis Act, in accordance with the license;
4. A common carrier transporting cannabis, with authorization under the federal Cannabis Act;
5. A licensee, like a private cannabis retailer, in accordance with the terms of the license;
6. A person who purchased cannabis from a licensed retailer or the government;
7. A person who was given cannabis purchased from a licensed retailer or the government;
8. A person who bought cannabis outside British Columba lawfully and brought it into BC;
9. A person who is lawfully growing cannabis;
10. A person who has cannabis from a lawfully grown plant.
If in a public place, an adult must not possess more than 30 grams of dried marijuana, or an amount equivalent to 30 grams of dried marijuana if it is in another form. There is an exemption for medical marijuana or for an actual cannabis plant, provided there are not more than four plants in a public place.
Cannabis plants that are budding or flowering cannot be possessed in a public place.
Possession in non-public places is somewhat complex. If more than one person occupies the same location then the maximum allowable amount is shared between them. However, the allowable amounts are prescribed by regulation so it may be possible to have higher allowable amounts where more than one adult occupies a location.
There is a general prohibition on the possession of illicit cannabis. However, it is unclear how cannabis can or will be determined to be illicit.
Marijuana cannot be possessed in a motor vehicle that is being operated, except in circumstances where it is still in the original, unopened packaging from a federal producer and not readily accessible to the driver or passengers. If there are cannabis plants in the vehicle, they must not be budding or flowering and no more than four plants are permitted. This does not apply to federal producers or common carriers, with the caveat that the packaging must meet the requirements of the federal Cannabis Act and must not be accessible to the driver.
Distribution
Distribution of cannabis under British Columbia’s Cannabis Act also sets out a number of offences.
Under the Act, the only persons who may sell cannabis are the following:
1. The government;
2. A federal producer selling to the government or to another federal producer;
3. A private retailer with authorization from the government.
Supplying cannabis, which is effectively giving it to someone without charging a fee, is also prohibited under the law except for the government, federal producers selling to the government or other federal producers, common carriers, or adults who are giving it to other adults. For the purposes of the legislation, an adult is defined as a person who is 19 or older.
Moreover, unless in possession of a valid license, it is prohibited under the Cannabis Act in British Columbia to promote the sale of cannabis, take orders for selling cannabis, or acting as an agent in the sale of cannabis. There is, naturally, an exception for employees of retailers and for federally licensed producers.
Sales of cannabis must be done in-person. It is an offence to sell by self-service display or by vending machines. A person must not provide cannabis to someone who is intoxicated.
In many respects the sales of cannabis mirror what we have in the liquor laws. For example, It is an offence to sell cannabis to a person who is intoxicated, or who appears to be intoxicated. Cannabis establishments cannot permit intoxicated, violent, or disorderly people to remain present. Furthermore, a cannabis retailer must not permit anyone to enter or remain if they are in possession of a weapon.
It is also an offence to remain in a cannabis establishment after being asked to leave, and a separate offence to enter a cannabis establishment with a weapon.
Cannabis retailers must not enter into exclusivity arrangements with producers. Similarly, a retailer cannot accept or be given an incentive to sell or promote a particular brand of cannabis.
Landlords who permit tenants that do not have authorization to sell or distribute cannabis are liable under the Cannabis Act to be charged with an offence. There is a defence if the landlord took reasonable steps to ensure that there was no illicit sale of marijuana.
Distribution offences involving the sale of cannabis by someone who is not licensed or authorized to sell marijuana may be dealt with administratively. The penalty for this is a fine in an amount equal to twice the retail value value of the cannabis, or if a waiver is signed, the retail value itself. Waivers are a written admission of guilt, which forfeits the right to a hearing. However, there are provisions in the Act which allow a person to be given the administrative penalty and still be charged with an offence.
A waiver is not admissible to prove guilt in the prosecution of an offence.
Minors
It is an offence to sell or provide marijuana or paraphernalia to minors. It is also an offence to allow a minor to use marijuana.
There are separate offences for minors who possess, consume, purchase, or attempt to purchase cannabis or paraphernalia. There are also separate offences for minors who possess false identification for the purposes of obtaining cannabis or access to cannabis retailers.
Minors are not permitted in any place where cannabis activity, sales, or distribution takes place. They are also prohibited from working in the cannabis industry. Anyone who permits or allows a minor to be present has committed an offence.
Marijuana advertisers must not allow minors to take part in marketing activity, nor may they market to minors. Minors themselves are prohibited from marketing cannabis. With the exception of minors who are used in sting operations by police and government bodies, no person may ask a minor to purchase or attempt to purchase marijuana for them.
Cannabis is not permitted in a vehicle with a minor unless the marijuana was produced by a federal producer, in its unopened packaging, and not accessible. Alternatively, if the marijuana is in plant form, it is permissible only if it is fewer than four plants that are not budding or flowering.
In all cases of offences involving minors, if a person took reasonable steps to ascertain the age of the minor, then there is a defence. This typically means checking identification.
Production
The Act significant limits who can produce or grow cannabis. Only federally authorized growers are permitted, with the exception of home growers.
Personal growing of cannabis is limited to a person’s ordinary residence. Cannabis cannot be grown in a care home or daycare. No more than four plants can be grown at any one time, and cannabis cannot be grown at different houses at the same time.
Even if there is more than one adult living in a residence, only four plants can be grown per residence. If this is the case, both adults will be liable for the offence. The only defence is that a person took reasonable steps to prevent the offence.
Cannabis cannot be grown for personal or medical use if the seeds or plant material were obtained from an illegal source. It is unclear how this will be determined, as it would require plant DNA databases to prove that a seed or plant was unlawfully grown.
Cannabis plants cannot be grown so that they are visible in a public place.
For medical cannabis, it must be grown in accordance with the federal authorization, and only the amount permitted under the federal authorization may be grown. If there are two adults, one with medical authorization and one without, the medical user may grow their allotted amount and the personal user may grow up to four plants. A combined total is therefore permitted.
If a person is caught producing marijuana in an amount exceeding the permissible amounts, or in circumstances in which they are otherwise not authorized to produce marijuana, the government can issue an administrative penalty instead of prosecuting an offence. The fine amount is twice the retail value of the cannabis, or if a waiver is signed, simply the retail value. A waiver is a written admission of guilt, declining the right to a hearing.
Cannabis Use
Cannabis may not be used in or on a school property, while operating a vehicle or a boat, or while in a vehicle or on a boat. Interestingly, the legislation makes the principal, school superintendent. and school district liable if a person uses marijuana at a school.
Smoking or vaping of cannabis is prohibited in skating rinks, sports fields, pools, playgrounds, parks, and skate parks, as well as decks, seating areas, or viewing areas connected to these locations. Additionally, smoking and vaping are prohibited at bus stops, train stations, taxi stands, ferry docks, or any place designated for loading and unloading passengers.
Smoking or vaping marijuana is also prohibited in enclosed public places, workplaces, and common areas of apartments, condominiums, or dormitories. If a workplace is also a residence, like a home office, the prohibition only applies during the time work is being performed. If you are sensing a pattern, you will note that the owner or manager of the enclosed public space is liable for cannabis smoking in these locations. Employers are liable for cannabis smoking in a workplace.
On a health board property, cannabis may be used only in designated smoking areas.
The liability that attaches to school principals, business owners or managers, and employers does not depend on whether the person who is using the cannabis contrary to the rule is charged with an offence. However, a defence can be raised by showing that reasonable steps were taken to prevent the cannabis smoking from occurring.
A person who is intoxicated by cannabis must not remain in a public place.
Importing or Exporting Cannabis
A person who brings cannabis into British Columbia, or who receives cannabis from outside BC must report this to the government. Similarly, those who send cannabis outside British Columbia must also provide this information to the government. Currently, the legislation specifies that it must be done in the “prescribed” time, form, and to the “prescribed” person. However, the regulations defining who that is, when, or how have not yet been written.
Private Retailers
Private retailers who violate the terms of their license face a penalty of up to $25,000 for any violation of the Cannabis Act other than sale or production of marijuana. If a person gives up their license or their license lapses, the government has up to six months to start the penalty imposition process.
If a private retailer violates the conditions of their license in selling cannabis or producing it, a monetary penalty may be imposed. This can be as high as $50,000. This is an administrative fine and not an offence. There is a six-month limitation period from the expiration of a license for the Government to take this action. It is also possible to apply for reconsideration of the monetary penalties.
Private retailers who are assessed monetary penalties can apply for reconsideration in certain circumstances.
During hearings to determine whether monetary penalties are to be assessed, the General Manager in charge of cannabis in British Columbia can issue a summons to compel a person to give evidence. Refusing to comply with the summons can lead to a charge of contempt of court.
Private retailers are required to keep their information up-to-date with the government. The information disclosed must be accurate. There are offences in the Cannabis Act for failing to update information, providing false information, withholding information, or destroying information.
The Government has the power to inspect private retailers, at any reasonable time, and without notice. It is an offence to interfere with the inspection, refuse to provide information or records, destroy records, or provide false or misleading information. This may seem totalitarian, but it is almost identical to existing rules surrounding alcohol establishments.
Enforcement
The Cannabis Act can be enforced by inspections done by the General Manager, or his authorized delegates. These generally apply to retailers and producers, though people operating as retailers or producers without a license are also subject to the powers of inspection. If a private residence is being utilized, the Act provides for the issuance of a warrant.
In addition, the Cannabis Act permits a peace officer to obtain a warrant if there are reasonable grounds to believe that a person is violating the Cannabis Act. These warrants are only valid insofar as they pertain to the offences under the Cannabis Act. If the police locate heroin or prohibited firearms, they are not permitted to seize these items. However, the law is unclear about whether discovery of these items during the execution of a warrant could be used as grounds to get another warrant under the Criminal Code or Controlled Drugs and Substances Act.
Any person who obstructs or refuses to admit a person executing a warrant issued under the Cannabis Act commits an offence.
The government has a one-year period from when an offence is committed to commence a prosecution of the offence. Information gathered under the Act is only to be shared in limited circumstances, and so a person who shares information beyond those circumstances commits an offence.
Penalties
The penalties for violations of the Act range, depending on the offence. Corporations can face fins of up to $100,000. Retailers can face a combination of fines of up to $100,000 and up to twelve months jail. Individual fines cap out at $50,000 and jail terms of up to twelve months. It is possible for an offender to receive both a fine and jail time.
However, it must be remembered that these are maximum fines and the range is broad. Given the principle of restraint in sentencing that must govern judicial discretion in imposing sentence, it is likely that only the worst offenders will receive these types of penalties. The Cannabis Act does not set out maximum penalties, and does not provide for jail for fourteen years or for life. As such, it is possible for offenders under the Cannabis Act to receive an absolute discharge.
This would mean that the offender would leave court without a conviction and being required only to pay a Victim Fine Surcharge. I expect that for first offenders facing possession charges, particularly minors, these sentences will be common.
