British Columbia has revealed its cannabis legalization framework. Public debate and discussion has muddied the waters, making it difficult to determine who may possess cannabis, and how much.
Who can possess cannabis
Cannabis possession is limited to adults, over 19 years of age.
However, possession is far more complex. A breakdown of who, where and in what circumstances British Columbians will be permitted to possess marijuana is necessary.
Only the following people can possess cannabis:
- The government or a person with an agreement with the Government;
- A person licensed under the federal Cannabis Act, pursuant to the license;
- A carrier transporting cannabis, with federal Cannabis Act authorization;
- A private cannabis retailer, pursuant to a license;
- Persons who purchased cannabis from a licensed retailer or the government;
- Persons who were given lawfully purchased cannabis;
- A person who lawfully imported cannabis into British Columbia;
- A person who is lawfully growing cannabis;
- A person possessing cannabis from a lawful plant.
Individuals bringing marijuana into B.C. from outside the province are required to report it to the government. These regulations on inter-provincial importation of marijuana reflect powers authorized in the Supreme Court of Canada's recent decision, R. v. Comeau.
Restrictions on possession
Adults possessing marijuana face quantity restrictions. In a public place, adults may not have more than 30 grams of dried marijuana, or an equivalent amount in another form. It will be interesting to see the enforcement of this, as determining whether an amount exceeds 30 grams of dried marijuana when dealing with edibles, shatter, oils or extracts is difficult.
There is a limit of four cannabis plants in a public place. Plants cannot be budding or flowering.
Exceptions to the rules exist for medical cannabis, which is permitted in any amount consistent with a Health Canada authorization.
Marijuana cannot be in vehicles, except if it is still in the original, unopened packaging
There are regulations, yet to be defined, that impose quantity limits in non-public places, including residences, dormitories, hotels, and vacation homes. If multiple people occupy the same location then the maximum allowable amount is shared between them. For people living in shared spaces, some coordination is necessary to ensure compliance.
Possession of illicit cannabis is prohibited. However, it's unclear how this will be determined. It's unlikely that plant DNA will be tested to identify strains grown by licensed producers. Ultimately, the illicit cannabis provisions may be unenforceable, particularly because the Act contemplates one adult lawfully purchasing and giving cannabis to another adult. Thus, even if records were kept about who purchased cannabis, record checks would not reveal whether cannabis was lawful.
Marijuana in cars
Marijuana cannot be in vehicles, except if it is still in the original, unopened packaging from a federal producer and not readily accessible to the driver or passengers. A limit on four cannabis plants applies in vehicles. Plants cannot be budding or flowering. Federal producers and carriers are exempt. However, packaging must still meet the federal Cannabis Act requirements and the cannabis must not be accessible to the driver.
Where cannabis can be used
Cannabis use is not permitted on a school property, while driving or boating, or while in a vehicle or on a boat. School districts, superintendents and principals are personally liable for cannabis use on school property.
Smoking or vaping is not permitted in open-air recreational areas, transportation stations, on the ferry or ferry property or in passenger zones. Smoking or vaping is also prohibited in enclosed public spaces, workplaces and common areas of shared buildings. Home offices are exempt, so long as smoking or vaping does not occur during work time. Employers and building owners are held liable if this occurs.
The user does not have to be charged with an offence in order for an owner or school to be liable. This places an hefty burden on school personnel, business owners and lessors to enforce the ban.
Providing marijuana to minors is an offence. Youth who possess, purchase or consume cannabis may face charges. Minors must not enter places where cannabis is sold or used. However, liquor laws currently allow minors to be inside liquor stores and most licensed establishments.
With the exception of sting operations, no person may ask a minor to purchase or attempt to purchase marijuana.
Enforcement will be interesting. The Act allows police to obtain a warrant, on reasonable grounds, to believe a cannabis offence is occurring. The warrant can permit searches of residences, workplaces and other privates places. No Criminal Code warrant is required.
Only federal offences lead to criminal records
However, searches are limited to items related to the Act itself. It's unclear whether information obtained during execution of a Cannabis Act warrant is admissible in another warrant application.
Penalties differ based on the offender. Retailers face maximum fines of $100,000 and one year in jail. Individuals face fines up to $50,000, and up to a year jail. Corporations face fines up to $100,000.
There are no minimum penalties, so an absolute discharge is available. This could result in no offence-related record, and no fine. Restraint is a primary consideration in sentencing, so it's unlikely that maximum fines will be imposed. Most offenders will likely receive fines in the range of several hundred dollars.
Criminal records unlikely
Many offences mimic proposed federal regulations. Police therefore have the opportunity to charge individuals under provincial or federal law.
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Only federal offences lead to criminal records. Therefore, despite the potential consequences, a charge under B.C.'s Cannabis Act is much more lenient. If provincial law is used as a substitute for federal prosecutions this effectively decriminalizes marijuana altogether.
This is a sensible way to administer the law. Additionally, the law differentiates between offences and administrative sanctions. Some provincial offences may be dealt with administratively. However, the Act contemplates both administrative penalties and charges as a possibility. This may seem wrong, but there is recent authority in British Columbia allowing this.
However, it's likely that administrative penalties will serve as a substitute for federal and provincial offences. This assists in reducing court delays and burdens, and streamlines investigations and prosecutions.
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