Five surprising new offences under the Cannabis Act

After a near 100-year prohibition, legalization has finally arrived in Canada. While many of you out there might see this as a cause for celebration, be warned; legalization might not mean what you think it does. Far from being the start of a never-ending weed bacchanal, authorities will still be carefully regulating Canadians’ cannabis consumption. In fact, there are a number of surprising new offences under the Cannabis Act that you probably don’t even know about.

Besides the obvious ones like driving while impaired by marijuana, some acts you may not realize are a crime until it’s too late. With that in mind, we put together this blog to highlight just a few of the more out there offences. The kind of offences that make you go, “what were they smoking when they came up with this?”

“The lawyers at Acumen Law have been at the forefront of challenging unfair marijuana regulations.”

1. Paying your buddy back for some cannabis

Imagine this scenario. You’re an adult at a licenced cannabis retailer when you get a text from your adult friend who says: “Can you pick me up a couple of grams? I’ll pay you back later.”

“No problem,” you reply. You go over to your friend’s house, give him the cannabis and he gives you the money.

You’ve just committed a crime. Unless you are a licenced retailer you cannot accept cash for cannabis. So if you accept your friend’s money, regardless of whether you are not making a profit, you are committing an offence under Section 10(1) of the Cannabis Act.

Punishment for illegally selling marijuana can be up to 14 years in prison for the most serious offences. The above example probably wouldn’t fall into this category but other punishments for less serious convictions can be a fine of up to $5,000, up to six months in prison, or both.

If you want to avoid being found guilty of illegally selling cannabis, abide by this rule: only get high on your own supply.

2. Growing your own cannabis

For this scenario, imagine you are a police officer and you suspect someone is growing plants illegally. Under Section 12(4) it is prohibited for an adult to grow cannabis for medical or personal use if the seeds or plant material were obtained from an illegal source. The trouble is, how do you know where a particular plant came from? This provision of the Act could be next to impossible to police. Maybe the police will keep some kind of plant DNA database, who knows?

If you are a budding home horticulturist, you should be careful to ensure your plants are not visible in a public place. That means no growing in the front garden or putting plants on a windowsill where someone could see them from the street.

3. Employers, be careful who’s sparking up on your property

Say you run a business and someone, one of your employees or just a random person off the street, is smoking cannabis within the grounds of your business. Employers are liable for anyone cannabis smoking in a workplace. So if you are a school principal, business owner or manager, and someone commits a cannabis-related offence, such as distributing cannabis to someone under the age of 18, you could be found liable, even if that person is not later charged with an offence. A defence available to you in this circumstance would be showing that reasonable steps were taken to prevent the cannabis smoking from occurring, such as workplace training or updating workplace policy. But how can employers safeguard against something like this happening all the time?

Also watch out if your workplace is also a residence, like a home office. It is fine to smoke cannabis at your own home but, if you work from home, it is prohibited to consume cannabis during the time work is being performed.

4. Unfair restrictions on advertising

If you work in the cannabis industry, just like any other business you will want your product to stand out so you can attract customers. The government is making the marketing of cannabis incredibly difficult because it is treating it as equivalent to tobacco. Fear-mongering has lead to the government including restrictions on promotion in The Cannabis Act. Under Section 17(1)(d) for example, you cannot depict a person, whether real or fictional, to promote marijuana. It remains to be seen how this will be interpreted. Does this mean you cannot depict a person or a character with a name or simply no people at all in advertising?

Parliament likely decided to copy tobacco legislation because the Supreme Court of Canada has already decided that the Tobacco Act’s limit on advertising is reasonable and demonstrably justified. The reality is, however, that marijuana does not have anywhere near the negative health side effects of tobacco. In contrast, marijuana has been shown to have a number of health benefits.

5. Unwittingly distributing to a minor

You’re an adult at a party and you decide to share some of your legally purchased marijuana. It is perfectly legal to share lawfully purchased cannabis with other adults. But what if one of the people at the party lies to you about their age and turns out to be 17? Section 9(1)(a) makes distributing to a minor an offence, punishable with up to 14 years in jail. The only defence against this, under Section 9(3), is if you take “reasonable steps to ascertain the individual’s age.” That means checking their ID. In fact, even offering them some marijuana before asking to check their ID could be interpreted as illegally distributing marijuana to a minor. Bill C-45 defines distribute as “administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner”. So even if you did the responsible thing by asking to see their ID, unless you waited until after checking their age to offer them some weed, technically you have committed an offence.

What to do if you are charged with an offence under the Cannabis Act?

These surprising new offences under the Cannabis Act go to show that this legislation is a work in progress. We predict there will be many successful challenges to some of the offences, to the point where they may even be overturned completely. These laws might seem new and confusing and their purpose might not immediately be clear but ignorance is not an excuse, unfortunately.

If you find yourself facing marijuana-related charges, don’t panic. Your best bet is to hire a lawyer. The lawyers at Acumen Law have been at the forefront of challenging unfair marijuana regulations, even testifying against some of them at the Senate. They have been busily preparing behind the scenes of the new legislative framework presented by the legalization of recreational cannabis.

If you need help, we urge you to give us a call on 604-685-8889.