Pot: What is the law?

Scenario:

Jeremy, 17, and his friends are excited to go to a big house party. Jeremy’s parents have even lent Jeremy their car for the evening on the condition that he not consume any drugs or alcohol. Along the way to the party, Jeremy stops to pick up his friend Jonathan. As Jonathan approaches the car, he pulls out a few small bags of weed and says to Jeremy “we are going to get sooo stoned tonight!” Jeremy, usually a good boy, decides to take a  small bag and put it in his pocket.  He doesn't plan on smoking it but doesn't want to look like a loser in front of his friends. Jeremy lets Jonathan smoke some weed en route to the party.

The two boys are stopped by the police for driving with a broken taillight. When the police officer approaches the car, she smells burnt marijuana and demands the boys exit the car. After a “pat down” search of Jonathan’s clothes, the officer discovers the bag of weed in one of Jonathan’s pockets.

QUESTION:

Can Jeremy be found guilty of possession even though he did not intend to use the drugs? Did the officer have the right to search inside Jeremy and Jonathan’s pockets?

Answer: Jeremy may be found guilty of possession even without the intention of using the weed. He had the drugs in his pocket and thus they were in his possession. (See s. 4(3)(b) of the Criminal Code.) 

Answer: the legitimacy of the search of Jonathan’s pocket depends on whether or not the officer had “reasonable grounds” to suspect Jonathan was committing an offence. (See s.495 of the Criminal Code.) Odour may form the basis of a reasonable suspicion. (To read a court case about this click here.)

MORE ON MARIJUANA AND THE LAW

Marijuana is the most commonly used illicit drug in Canada. Over 10 million Canadians are estimated to have used marijuana at least once in their lives. Although some advocacy groups continue to push for its decriminalization, marijuana and its derivatives remain illegal under the Controlled Drugs and Substances Act (CDSA).

There are legal consequences of possessing and distributing marijuana. Below is as a description of the charges, and examples of punishable activity, as well as some info on your rights during police searches.

CHARGE: Possession of marijuana

In the CDSA the definition of drug possession is borrowed from section 4(3) of the Criminal Code of Canada.   “Possess” means to have the drug on your person, but you may also be charged with possession if someone else is holding the drug for you or if you have it stashed someplace for future use. 

CHARGE: Trafficking of marijuana

The definition of “trafficking” under the CDSA is very broad. To traffic marijuana is “to sell, administer, give, transfer, transport, send or deliver the substance...” or to sell an authorization to purchase marijuana.  Selling does not require payment in exchange for the drug. Any kind of transporting/delivering, offer of sale and distribution –even if not in exchange for anything –can fall under trafficking. Consider a situation where a group of friends get together and smoke Marijuana that one person “picked up”. The individual who shared the drug has 'trafficked' regardless whether he asked his friends to pay or not.

You need not actually commit the crime of trafficking in order to be punished for more than mere possession. Possession for the purposes of trafficking is often punished just as heavily as actual trafficking.

 

Marijuana-related searches

Everyone has a right not to be “unreasonably” searched, but a police officer may search you with or without a warrant, provided there are reasonable grounds to believe you are in possession of a controlled substance. Where a police officer conducts a search without a warrant, s/he must justify the search afterwards in order to use the evidence obtained. 

There must be some factual basis for suspicion in order to justify the search. This might be a tip from an informant or something the police observed. Your reputation and criminal record are also admissible pieces of information the police may use to establish reasonable suspicion.

You can legally refuse consent to be searched, regardless to how many requests the police officers make to search you or enter your home or vehicle. However, the police may refuse to allow you entry into a restricted area unless you consent to a search.

Giving them voluntary consent makes police searches automatically legal.

In public, police can request you to stop and engage you in a conversation . Police can legally use false pretenses (lie), use intimidation techniques, and steadily attempt to persuade you into giving them permission for a search. But until they formally arrest you, you have a right to refuse consent for a search and walk away from them. It helps to remain respectful, to identify yourself, and avoid making quick movements (especially towards the pockets!). Avoiding having Marijuana in public, of course, helps.

If an arrest is made, remember that you have the right to remain silent and insist to speak with a lawyer.

For more info on your rights during a police stop or search, check out JFCY’s resources here: http://www.jfcy.org/ycj-police.html

This post was written by JFCY PLE Team Volunteer Shawn Malik and JFCY summer law student Robin McNamara.  Legal info was reviewed by JFCY.

Photo Sources:

http://www.canada.com/health/4610785.bin?size=620x400

http://tobaccoblog.blogetery.com/files/2011/11/possession-of-marijuana.jpg

Skipping School and Smoking Pot

Scenario

Fourteen year-old Rachel had never really thought about skipping class before. She knew her friends skipped once in a while, but she had never done so herself. Then, one fall day, during lunch hour, Emily and Mike asked Rachel if she wanted to skip the next period, get something to eat, and hang out until the next bell rang. Rachel wasn’t too keen on the idea, but it was November of grade nine and she was still trying to make friends. Rachel agreed and off the three went.

Emily and Mike led Rachel behind the school parking lot, and sat down behind a wall that blocked them from being seen. Rachel was a little confused but went along with it. Mike then pulled out a joint from his pocket. Rachel had never tried marijuana, but she was curious, and she didn’t feel comfortable saying no. The three students smoked the joint in the back parking lot.

Mr. Smith just pulling his car into his parking space in the school lot when he noticed the three students from his science class walking out from behind the wall. He noticed that they smelt of marijuana and he also knew they were supposed to be in class. Mr. Smith immediately took the three students to the principal’s office.

Rachel couldn’t help but feel shocked by the situation that she had gotten herself into. She wasn’t sure what the implications of her actions would be – she knew that she had used the marijuana, but could say with honestly that it wasn’t hers to begin with. Rachel was worried and unsure of the consequences she was about to face…

The Law: Was Rachel allowed to skip school?

The Education Act is the Ontario law that covers education issues, including attendance.  It requires everyone over the age of six attend school until they graduate or reach age 18.  There are some exceptions to this rule.  For example, if a student is sick or it is a religious holiday, absences are excused.  

Every school has a school attendance counsellor who is responsible for following up when students miss school.  The counsellor at Rachel’s school will contact Rachel’s parent or guardian to let them know that she skipped class.

If you are interested in learning more about mandatory attendance in the Education Act, you can check it out online. Sections 21 and 26 contain the rules mentioned in this blog post, and Sections 30 and 31 discuss the consequences of being absent from school regularly without a legally valid excuse.  If you are under age 16, you can actually be charged with a provincial offence and made to attend court for skipping or "being habitually absent" from school! These laws have actually been changed to make the magic age 18, however, they have not yet been "proclaimed" by the government and thus the old rule of age 16 still stands. 

The Law: What about smoking marijuana?

The Controlled Drugs and Substances Act is the federal law that deals with drugs. Cannabis (marijuana) is a schedule II drug under the Act.  It carries criminal consequences for youth who are found guilty of possession, trafficking, exportation and/or production. There are no age parameters with regards to illegal drug use – anyone found with cannabis will be in violation of the Controlled Drugs and Substances Act and may charged and must attend court.  Rachel and her friends could be charged with possession of a controlled substance.

Youth who are under age 18 when alleged to have been charged with committing a criminal offence are dealt with under a separate legal system from adults.  This system, and the various rights that youth are entitled to, is outlined in the Youth Criminal Justice Act.  For more info on youth charges, check out JFCY’s Know Your Rights pamphlet.


Scenario by PLE Team volunteer Claire Bogomolny; Legal Info by PLE Team Lead Leora Jackson (a UofT law student from PBSC) and JFCY lawyer

Concerts, Drug Use and Underage Drinking

Blogpost by JFCY volunteer Lucas Treleaven, law student Daniel Lo and JFCY lawyers.


Fred is 17 and loves music. He goes to all his favourite bands concerts and owns all their T-shirts. One night he decided to go to a Blink 182 concert alone because his friends don’t really like Blink 182. He was having a great time and as you do at concerts he made some friends. These new friends were much older than he was and seemed a lot cooler too. They talked about their favourite Blink 182 songs and how it was so awesome that Blink 182 came to Toronto. About half-way through the set Fred's  new friends brought out what looked like a cigarette. Fred quickly learnt it was not a cigarette. They told it was called a “joint” and contained marijuana. They offered him a 'hit' and even though he had never used drugs before he accepted the ‘hit’ because he wanted these people to keep talking to him. Throughout the night they gave him beer and more joints until he was so drunk and high that he passed out. His new-found friends left the concert early to avoid the paramedics while another concert-goer called the security guards. 

Fred was sent to the hospital and his parents showed up at 1 am to get him. 

What are Fred’s legal issues?

Alcohol

An Ontario law called the Liquor License Act says that people under age 19 are not allowed to have, drink or purchase alcohol (Liquor License Act, S. 30(8)). It is also illegal for someone to provide alcohol to people under age 19.  However, there is an exception in that parents are permitted to give alcohol to their own under-age children at home under parental supervision, without them or the kids being charged.  That is the only situation where it would be legal for someone to supply alcohol to a minor and legal for the minor to consume alcohol. Fred and his new “friends” may be charged under the Liquor Licence Act and be made to appear in Provincial Offences Court.

Cannabis/Marijuana/Pot

The Controlled Drugs and Substances Act is the federal law that deals with drugs. Cannabis (aka. Marijuana) is a schedule II drug, and carries criminal consequences for youth who are found guilty of possession, trafficking, exportation and/or production. There is no age parameters with regards to illegal drug use- anyone found with cannabis will be in violation of the Controlled Drugs and Substances Act and may charged and must attend court.  Fred and his “friends” could be charged with possession of a controlled substance. 

Youth who are under age 18 when alleged to have committed a criminal offence are dealt with under a separate legal system from adults.  This system, and the various rights that youth are entitled to, is outlined in the Youth Criminal Justice Act.  For more info on youth charges, see this pamphlet.

If you are young person in Ontario and you need a lawyer to represent you, call Legal Aid Ontario: (416)598-0200, 1-800-668-8258 (outside GTA), or Justice for Children and Youth (416) 920-1633, 1-866-999-5329 (outside GTA)

For More Info on Youth and Drugs:

According to recent survey conducted by the Centre for Addiction and Mental Health (CAMH), the two most common drug substances that Ontario students (grade 7 – 12) use are alcohol and cannabis (Ontario Student Drug Use and Health Survey, 2009). Fred’s scenario is not uncommon and is a recurring issue that teens deal with on daily basis.