Possession of Marijuana (Script 201)

From Clicklaw Wikibooks

Is possession of marijuana a criminal offence?

Federal law—on October 17, 2018 the new federal marijuana law, the Cannabis Act came into force. Under this law, a person 18 years or older can possess up to 30 grams of legal cannabis, which is defined as dried cannabis, so it does not include edible cannabis products (they will be legal in about another year, the federal government says). The law also allows any young person between 12 and 18 years old to possess up to 5 grams. You do not have to own cannabis to possess it. The federal government summarizes current law (and enforcement of it) on its website.

BC law—under the BC Cannabis Distribution Act, and the BC Cannabis Control and Licensing Act, the legal age to possess cannabis is 19. So in British Columbia, it is illegal for a person under 19 years old to possess or distribute cannabis. And it is illegal for a person 19 years or older to possess more than 30 grams of legal cannabis and distribute more than 30 grams of legal cannabis. The BC government summarizes current law (and enforcement of it) on its website.Breaking the BC law is not a criminal offense. Instead, it’s like breaking the Liquor Control and Licensing Act, which can result in a fine and possible jail time. But you don’t get a criminal record.

If you buy cannabis from a licensed supplier, you can use it legally, but you must still comply with provincial laws and bylaws and other restrictions on its use in public spaces.

Distribution—it is illegal for a person 19 years of age or older to distribute (to sell or give in any manner) legal cannabis to anyone under the age of 19. The penalties for these offences can include jail time up to 14 years.

Over 30 grams—if you possess or distribute more than 30 grams of cannabis but less than 50 grams, the police can detain you and give you a ticket. If you are a young person under 19 and you possess or distribute more than 5 grams of legal cannabis, the police could ticket you. The penalty is a $200 fine plus a victim fine surcharge. If you pay the fine in full, you won’t get a criminal record. But if you don’t pay the fine or you dispute the ticket but fail to attend your hearing, you will be found guilty and must pay the fine within 60 days. Then you will have a record that can be used against you.

If you have more than 50 grams of cannabis in your possession you can be prosecuted under the Controlled Drugs and Substances Act. It’s a hybrid offence, meaning that the prosecutor can treat it as a less serious, summary offence or a more serious, indictable offence. You would normally get bail while awaiting trial, unless you had a criminal record.

Working in the cannabis industry—to work in the legal cannabis industry, you must be licensed and work for a licensed facility to possess and distribute more than 30 grams of legal cannabis. There is no automatic exclusion for cannabis workers, so if you sell cannabis to a minor, you can be prosecuted if you fail to take reasonable steps to find out how old they are. Similarly, if you distribute more than 50 grams of cannabis to an unauthorized or unlicensed retailer or distributor of cannabis, you can still be prosecuted.

Time limits

For summary offences, the time limit to charge someone is 6 months. For indictable offences, there’s no time limit.

Medical exception for up to 150 grams of dried marijuana

You can legally have up to 150 grams of dried marijuana for medical purposes—if you get a document (like a prescription) from a doctor. If you have more than that, you can still be charged. Health Canada’s website explains the medical use of marijuana (including the regulations) and how to get marijuana legally for medical purposes (buy it or produce it). Once you have the document from a doctor, you have to register with, and order from, a licensed producer. The marijuana is then delivered to you. The Health Canada website also explains how to become a licensed producer of cannabis for medical purposes.

What must the prosecutor prove to convict you? What can you do?

In court, the prosecutor, also called the crown counsel (Crown), must prove 3 things beyond a reasonable doubt: knowledge, consent, and control. The Crown does this by proving that you:

  • had control of the marijuana—for example, the police found it on you or in an area you controlled, such as a car, suitcase, or bedroom, and
  • knew the marijuana was there, and
  • consented to having the marijuana in that place.

If the Crown proves all these things, the judge will convict you. To prove these things, the Crown will have witnesses—normally the police officer who arrested you—tell the court (or testify) about the situation when they found the marijuana on you. Witnesses testify under oath, meaning they promise to tell the truth. You can question, or cross-examine, each witness the Crown uses.

After the Crown finishes, you—and your witnesses, if you have any—can tell the court what happened. To do this, you have to take an oath promising to tell the truth, and then give evidence as a witness. If you have any witnesses who saw what happened and who can support your story, you can call them to testify, or give evidence. They also have to promise to tell the truth. You then question them about what they know. When you and your witnesses finish giving evidence, the Crown can question, or cross-examine, you and them.

Lastly, you and the Crown summarize your positions by making “submissions” to the court. For more information, check script 211, called “Defending Yourself Against a Criminal Charge”, and script 212, called “Pleading Guilty to a Criminal Charge”.

Is the amount of marijuana important?

Yes—a small amount is less serious. The more you have, the greater the chance that you may be charged with possession for the purpose of trafficking, a more serious offence with more serious penalties. The way the marijuana is packaged is also important.

What are the penalties?

Penalties for possession over the limit depend on the amount: tickets for smaller amounts and to 5 years in jail for larger amounts.

Penalties for over 30 grams, depend on how the Crown proceeds. If it treats it as an indictable offence, the penalties are higher: up to 5 years less a day, in jail.

You may also get a criminal record. That can prevent you from traveling to other countries, getting certain jobs, being bonded (which some jobs require), and applying for citizenship. Check script 205, called “Criminal Records and Applying for a Record Suspension”, for more information.

If it is your first offence, ask the judge for a discharge or ask the Crown for diversion (or alternative measures). If you meet the conditions of the discharge or if you complete the alternative measures, you will not get a criminal record. For more on discharges, check script 203, called “Conditional Sentences, Probation and Discharges”. For more on diversion, check script 212, called “Pleading Guilty to a Criminal Charge”.

The legal issues for this crime can be complex and a conviction can seriously harm you. If you are charged with this crime, you should talk to a lawyer.

[updated October 2018]

The above was last reviewed for accuracy by Paul Briggs and edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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