Possession of Marijuana (Script 201)

From Clicklaw Wikibooks

Is possession of marijuana a criminal offence?

Yes. Possession of marijuana (also called cannabis) is a criminal offence 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.

You don’t have to own the marijuana—you just have to have, or possess, it. The federal government summarizes current law (and enforcement of it) on its website. If you are charged with possession of marijuana, you should speak to a lawyer.

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. 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.

Non-compliance with current law

But stores in Vancouver and other cities are now selling marijuana directly to customers who walk in. They are not complying with the medical-exception rules. In theory, you can still be charged with possession of marijuana if you buy it from a store.

Federal government plans to legalize marijuana in 2018

The federal government has said it will legalize and regulate the sale of marijuana for recreational use by the summer of 2018 (based on recommendations of the Task Force on Cannabis Legalization and Regulation). So the law in this area will probably continue to change. You should get legal advice if you want to obtain marijuana legally.

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?

For a first conviction for possession of up to 30 grams, a summary offence, the maximum penalties are a fine of $1000 or 6 months in jail, or both. But the penalty for a first offence is usually much less. For a second offence, the maximums are a $2,000 fine and one year in jail, or both.

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 March 2018]

The above was last reviewed for accuracy by Jordan Allingham and 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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