Cannabis Act

The PPSC is responsible for the prosecution of both criminal and regulatory offences under the Cannabis Act.

Background

On October 17, 2018, the Cannabis Act, came into force thereby significantly altering the manner in which cannabis is possessed and accessed, and how cannabis related offences are investigated and prosecuted in Canada.

The Cannabis Act altered Canada’s approach to cannabis, shifting from a blanket prohibition, but for medical marihuana, to a regime in which possession, consumption and distribution can be lawful, subject to restrictions by amount, age and location.

The more serious cannabis offences, previously prosecuted under the Controlled Drugs and Substances Act, such as sale, importation and exportation remain serious crimes under the Cannabis Act.

During this first year the Act has been in force, legal sales were limited to fresh or dried cannabis in its natural form. However, as of October 17, 2019 regulations are in place authorizing the legal production and sale of edible cannabis products, extracts and cannabis topicals.

Considerations

In order to prepare for and implement this significant change to the law in relation to cannabis prosecutions, the PPSC established an implementation committee to identify legal and operational issues, develop policies and procedures and provide training to police and prosecutors. This committee, with representatives from all PPSC regional offices, continues to monitor prosecutions under the Act and develops PPSC positions to address issues as they arise.

The legalization of possession of cannabis pursuant to the Cannabis Act has not had a measurable impact on PPSC operations as the resources dedicated to the prosecution of simple possession cases under the Controlled Drugs and Substances Act (CDSA) were not significant. In contrast, significant resources were, and continue to be, devoted to prosecutions in relation to so called cannabis "dispensaries" which continue to be illegal.

In June of 2018, the Director of Public Prosecutions issued a guideline to federal prosecutors in relation to cannabis possession cases initiated under the CDSA that had not been concluded by the time the Cannabis Act was passed by Parliament. The guideline essentially states that prosecutions should not be ended simply on the basis of the new law being passed. The rationale is that the CDSA remained valid law until such time as it was replaced by the Cannabis Act on October 17, 2018, and that until such time as the new regime was in place, anyone possessing cannabis was necessarily possessing illicit cannabis which continues to be an offence under the Cannabis Act regardless of the quantity.

PPSC will be taking the position moving forward that the Cannabis Act does not change the common law in relation to appropriate sentences for the criminal offences that are contained in the new Act and were carried over from the CDSA. On January 9, 2019, the Ontario Court of Appeal in R v Strong endorsed this approach by finding that a three-year sentence for trafficking under the CDSA should not be reduced in light of the Cannabis Act, since the unauthorized sale of cannabis continues to be treated as a serious criminal offence.

The Cannabis Act contains provisions allowing the police to issue tickets for offences within specific ranges. However, these provisions, in practical terms, are not in force given the scheme’s reliance on the provinces and territories (PTs) to produce and issue the actual tickets to the police. The Department of Justice is working with the PTs to address this delay, but to date tickets under the Cannabis Act are not being issued by police. The Cannabis Act does allow prosecutors to elect to proceed as though a ticket had been issued. In order to make use of this discretion PPSC has worked with the PTs to put in place procedures to allow this election to be made in court, and has issued guidance to federal prosecutors on the procedures to follow in cases where the ticketing election is appropriate.

A number of legal challenges to the Cannabis Act by First Nations communities, and individuals, are expected or underway, primarily in Ontario. To date, these challenges appear to be based on an argument that the Cannabis Act does not apply on aboriginal lands through the assertion that these areas are sovereign. The PPSC view is that the Act is constitutionally valid and as a federal statute, applies across Canada. PPSC is working closely with the Department of Justice to address these challenges in the courts.

The introduction of a legal regime governing the sale of edible cannabis products and concentrates may pose additional evidentiary challenges for prosecutions given the complexity of the regime. The regulation of these new products is in large part based on the concentration of active ingredients. The science involved in establishing that a given sample falls outside of legal limits is considerably more complex than with cannabis in its natural form.