Posted:October 15, 2018

The New Cannabis Act

New legislation, known as the Cannabis Act (“Act”), sets out the new regime for the legalization of cannabis, which includes but is not limited to personal use and growing limits and the licencing requirements for growing quantities in excess of the limited personal use rights. This legislation becomes effective on October 17, 2018.

Prior to this date, cannabis was governed under the Controlled Drugs and Substances Act (“CDSA”). However, with the coming into force of the Act on October 17, 2018, it is being removed from the ambit of the CDSA and will be governed by the Cannabis Act instead.

The CDSA is known for its comprehensive search and seizure regime for drug related offences that provides the authorities with broader powers than the Criminal Code (“Code”) when it comes to search and seizure. With the enactment of the Act, it may appear that cannabis has been removed from the search and seizure scheme of the CDSA.  However, the search and seizure provisions for any contraventions of the Act are identical to the scheme set out in the CDSA.  As such, contraventions of the Act will be subject to the same search and seizure powers as currently exist under the CDSA.

 

Search Regime under the New Cannabis Act

Section 87 of the Act, permits a justice to issue a search warrant if he or she is satisfied by information on oath that there are reasonable grounds that any of the following exist:

  1. cannabis which is in contravention of the Act;
  2. anything in which cannabis contravening the Act is contained or concealed;
  3. offence-related property; or
  4. anything that will provide evidence in respect of a contravention of the Act;

With respect to the above, there is no need for cannabis in contravention of the Act to be at the place where the warrant is sought, as all these four grounds are not required. As long as there are reasonable grounds for one of the four grounds, a warrant can be issued.

A peace officer may conduct a search under a warrant obtained at any time of the day. There is no need for special authorization to conduct the search at night.  This differs from a Code search, which requires special authorization.

During the course of search pursuant to a warrant obtained, a peace officer conducting the search has the authority to search any individual at the place. This may only occur, however, if the peace officer has reasonable grounds to believe that the individual has on them any cannabis, property or a thing which is referred to in the warrant.

Section 88 of the Act, permits a peace officer, while executing a warrant to enlist the assistance he or she considers necessary and to use as much force as is necessary in the circumstances. This differs again from a Code search as the Code does not explicitly specify that force may be used.

 

Seizure Regime

Section 87 of the Act provides the peace officer executing a warrant, the authority to seize more than just the cannabis, property or thing referred to in the warrant. They may seize any of the following during a search:

  1. cannabis he or she reasonably believes is in contravention of the Act;
  2. anything he or she reasonably believes contains or conceals cannabis;
  3. anything he or she reasonably believes is offence related property; and
  4. anything he or she reasonably believes will provide evidence of a contravention of the Act.

 

Summary

In summary, while the Cannabis Act establishes limited permitted personal use and growing rights and the licencing regime for growing in any quantities in excess of the personal limits, it also preserves the CDSA powers to search and seize any cannabis and offence-related property that falls outside what has been legalized. As such, as individuals embark on new investment opportunities and into new markets that appear to be flooding agriculture, they must realize the authorities have the legislative authority to (1) conduct searches where they establish reasonable grounds for the warrant and (2) seize where they have reasonable grounds to believe the cannabis and offence-related property contravene or will provide evidence of contravention of the Act.

Maria Kinkel is a lawyer and partner with the firm MHN Lawyers LLP, Simcoe, Ontario.

The material presented in this article is intended for information purposes only and does not constitute legal advice.

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