Authored By: Kyla Lee

British Columbia’s cannabis legalization framework has been revealed, but public debate and discussion around the issue has muddied the waters for anyone wishing to know how they can possess cannabis, and how much.

Possession of cannabis in British Columbia’s Cannabis Act will be limited to adults, who are nineteen years of age or over. Anyone under nineteen exposes themselves to prosecution for an offence if they possess cannabis. However, possession is far more complex than this. A helpful breakdown of who, where, and in what circumstances British Columbians are going to be permitted to possess marijuana is therefore necessary.

Under the Act, the only persons who may possess cannabis are as follows:

The government;

A person who has an agreement with the government;

A person who has a license under the federal Cannabis Act, in accordance with the terms of the license;

A common carrier transporting cannabis, with authorization under the federal Cannabis Act;

A licensee, like a private cannabis retailer, in accordance with the terms of the license;

A person who purchased cannabis from a licensed retailer or the government;

A person who was given cannabis purchased from a licensed retailer or the government;

A person who bought cannabis outside British Columba lawfully and brought it into BC;

A person who is lawfully growing cannabis;

A person who has cannabis from a lawfully grown plant.

For individuals bringing marijuana into British Columbia from outside the province, the legislation requires certain methods of reporting. So it appears that a person cannot simply purchase a few grams of marijuana while visiting Banff for the weekend and carry them back into British Columbia without alerting the government. These regulations on inter-provincial importation of marijuana are particularly interesting in light of the Supreme Court of Canada’s recent decision in R. v. Comeau.

Adults who possess marijuana also face restrictions on the amount that they may possess. In a public place, an adult must not possess more than 30 grams of dried marijuana, or an equivalent amount in another form. It will be interesting to see how this is enforced, as determining whether an amount is equivalent to or more than 30 grams of dried marijuana when dealing with edibles, shatter, oils, or extracts is not always easy.

Those who wish to possess cannabis plants may only possess up to four plants in a public place. Those plants cannot be budding or flowering.

As always, there are exceptions to the rules. Medical users of cannabis will be permitted to possess more than the limited amounts provided it is within the ambit of their Health Canada authorization.

Possession in non-public places is somewhat complex. There are regulations, yet to be defined, that will impose limits for possession in non-public place. Non public places include residences, dorm rooms, hotel rooms, and vacation homes. If more than one person occupies the same location then the maximum allowable amount is shared between them. This means that houses where rooms are rented by several individuals will require coordination amongst the adults to determine who has how much, and in what form it is.

There is a general prohibition on the possession of illicit cannabis. However, it is unclear how cannabis can or will be determined to be illicit. It is unlikely that plant DNA will be tested to determine whether cannabis grew from a strain that is grown by a licensed producer or not. Ultimately, the illicit cannabis provisions will be difficult to enforce.

This is in part due to the fact that the Act contemplates one adult lawfully purchasing cannabis and giving it to another adult. Thus, even if records were kept about who did and did not purchase cannabis, it would not mean that a person’s name could be checked against those records for a determination about whether the cannabis was lawfully acquired.

Marijuana cannot be possessed in a motor vehicle that is being operated, except in circumstances where it is still in the original, unopened packaging from a federal producer and not readily accessible to the driver or passengers. If there are cannabis plants in the vehicle, they must not be budding or flowering and no more than four plants are permitted. This does not apply to federal producers or common carriers, with the caveat that the packaging must meet the requirements of the federal Cannabis Act and must not be accessible to the driver.

What is particularly interesting about the penalties in the Cannabis Act, is that many of the offences for possession, as well as production, and distribution mimic those in the proposed federal regulations. This would mean that police have the opportunity to charge individuals under the provincial law or the federal law.

If charged under the provincial law, a person would not receive a criminal record. Only a federal offence can give a person a criminal record. In some respects, despite the consequences being as severe as they are, a charge under BC’s Cannabis Act may be a more lenient way to prosecute cannabis offences. Furthermore, the provincial law, if used as a substitute for the federal prosecutions, would serve the goal of effectively decriminalizing marijuana.

In many ways, this is a sensible way to break down the law. But there is further sense in the breakdown. The law differentiates between offences and administrative sanctions. So even those provincial offences, for which a person would not receive a criminal record, can in certain circumstances be dealt with administratively. However, theAct also contemplates that a person can both be charged with an offence and punished administratively. While this may seem wrong, there is recent legal authority in British Columbia that suggests this is lawful.

That being said, it is likely that the administrative penalties will serve as a substitute for the prosecution of offences, either federally or provincially. This will assist in reducing court delays, burdens on the court, and will streamline investigations and prosecutions under the Act.

Cannabis use is also limited by the Act, and is not permitted in or on a school property, while operating a vehicle or a boat, or while in a vehicle or on a boat. School districts, school Superintendents, and school principals are made personally liable for cannabis use in or on school property.

In addition, the smoking and vaping of cannabis is not permitted in any open-air recreational areas, bus stops, train stations, taxi stands, on the ferry or at the ferry terminal, or in passenger zones. Smoking or vaping is also prohibited in enclosed public spaces, workplaces, and common areas of shared buildings. There is an exemption for home offices, which allow for smoking or vaping when work is not being performed. As with schools, employers are liable if a worker smokes cannabis in the workplace, as are building owners who allow cannabis use in the enclosed space.

This is an interesting element, as it places a burden on school personnel, business owners, and lessors to ensure that those using their properties are not smoking marijuana. Furthermore, the cannabis user does not have to be charged with an offence in order for the owner or school to attract liability for an offence.

While it is an offence to provide marijuana to minors, youth themselves face prosecution under the Cannabis Act for possession, consumption, and purchasing of cannabis. There is also an outright ban on allowing minors to enter places where cannabis is sold or used, which is dissimilar to liquor laws which still allow minors to be inside liquor stores or restaurants that serve alcohol.

It is a separate offence to market to minors, which means that advertisers must take caution. Minors themselves are prohibited from marketing cannabis. With the exception of minors who are used in sting operations by police and government bodies, no person may ask a minor to purchase or attempt to purchase marijuana for them.

Cannabis Warrants

The enforcement provisions of the Act are very interesting. There is a process in that Act that allows for police to apply for a warrant on reasonable grounds to believe there is an offence being committed. This would grant the police search powers over private residences, workplaces, and other locations while bypassing the warrant provisions under the Criminal Code.

Searches under the Cannabis Act are limited to items related to the Act itself, but it is not clear if information obtained by way of execution of a Cannabis Act warrant could be used to obtain a further warrant.

Penalties

The Cannabis Act differentiates penalties between the type of person facing the penalties. Licensees have the most liability, with maximum fines up to $100,000 and twelve months jail. Individuals can expect fines of up to $50,000 and up to twelve months jail. Corporations are at risk of fines of up to $100,000.

There are no minimum penalties, so an absolute discharge is available for any offence under the Act. This could mean that an offender could leave court with no offence-related record, and paying only a $100 Victim Fine Surcharge. The sentencing principle of restraint is a primary consideration in sentencing, and as such it is unlikely that maximum fines will be issued. Rather, most offenders will likely receive fines in the range currently issued for violation of the liquor laws.

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Kyla Lee