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
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.
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