By: David G. Bayliss – May, 2024.

The Dark Side of Legal Pot

Prior to the legalization of Cannabis products by the federal government on October 17, 2018, marijuana possession investigations were a significant component of community policing by Ontario police forces. Between 2003 and 2013, more than 27,000 people were arrested for marijuana possession in the city of Toronto alone.

The mere smell of marijuana entitled police officers to investigate drivers, cyclists and pedestrians alike. Often the object of such investigations was not enforcement of cannabis laws at all but, rather, a mechanism for investigation of other crimes for which police had no reasonable grounds to suspect were occurring. An arrest for pot possession entitled officers to conduct general searches of individuals and their vehicles as “incident to an arrest”. Moreover, the available data suggests a severe racial disparity in the application of the pot laws. While the actual usage of marijuana by white versus non-white citizens is similar, Blacks were three times as likely as whites to be arrested for possession of small amounts of marijuana.

It was the recognition of this racial disparity in the application of the pot laws that largely drove the decriminalization lobby. Legalization did solve some problems. Pot possession charges have been almost entirely eliminated, freeing up scarce justice system resources. No longer could overzealous officers arrest and search pedestrians in over-policed neighborhoods just because they smelled some marijuana. The federal government even launched a program in 2019 allowing for Canadians with criminal records for simple possession to apply for a fast-tracked and free pardon (now called a Record Suspension)

But there is a dark side to legalization. In conjunction with the federal Cannabis Act enactment in October of 2018, provinces and territories passed their own legislation to regulate the use of Cannabis products. In Ontario, this local regulation takes the form of the Cannabis Control Act (CCA). The CCA gives expansive search powers to police officers, as set out in section 12 of the Act:

12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
(2) Subsection (1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12 (1).

Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

The legislation is remarkably broad—and vague. Unlike, for instance, the Highway Traffic Act, which is enforceable only on public roads, the CCA has no such limitation. It can be enforced anywhere, including on private property. The vehicle need not be “in motion” to be subject to investigation under the CCA. One could be parked in one’s own driveway, or a hotel parking lot, with the engine off, and be subjected to a CCA investigation and search.

Ontario courts have interpreted clause 12(2)(b) broadly, such that even if cannabis products are in closed baggage, it is still a violation of the CCA if that closed baggage, for example a knapsack or purse, is “readily available to any person in the vehicle.” The phrase “readily available” is itself undefined and subject to interpretation. Does it mean cannabis that is within reach of someone in the vehicle (often just the driver) or does it include something that is in the trunk? Police officers by nature tend to give the broadest interpretation to the phrase because such an interpretation enhances their search powers.

Once an officer has “reasonable grounds to believe” cannabis is in a vehicle contrary to the CCA, the entire vehicle and everyone in it can be searched, despite an absence of credible suspicion of actual criminal behaviour. To make matters worse, because the CCA is considered a non-criminal regulatory statute, the police powers that flow from it are subject to a lower standard of review by the courts.

As for “reasonable grounds to believe” that cannabis is “readily available” to the driver (or anyone else in the vehicle), that test has proven easily satisfied to the average cop. “Grounds” such as the smell of pot, the presence of crumbs, roaches or rolling papers have been found to amount to “readily available” cannabis to some officers and those decisions have met little judicial resistance, until recently.

As a criminal lawyer I seldom see charges laid under the CCA. This is consistent with the experience of my colleagues. What we do see on a regular basis are much more serious criminal charges that have resulted from searches under the CCA. In a recent cocaine possession case arising out of a CCA search, an officer testified that he has conducted “hundreds” of vehicle and occupant searches under the CCA and never laid a charge if only cannabis is found—but has laid “countless” more serious charges resulting from those searches. That is just one officer.

The fact is that CCA searches are seldom about looking for cannabis. They are about fishing expeditions to collect intelligence and investigate more serious crimes when no grounds exist to believe those crimes have been committed. For every case brought to court in this way, scores of other civilians have been shaken down under the CCA and been sent on their way after humiliating encounters with police. Moreover, it is the same racialized communities that were targeted when pot was still illegal, that are now being targeted under the CCA. We have come full circle.

Over five years after decriminalization, some courts are finally starting to pay attention.

R. v. Byfield, 2023 ONSC 4308 (CanLII)

The constitutionality of the CCA has been challenged in four cases, three in the lower court (Ontario Court of Justice) and one in the Superior Court of Justice. All four challenges were dismissed. The biased enforcement of the Act against racialized Canadians was not raised in any of these challenges. Similar legislation in other provinces has not yet been challenged. However, the evidence of discriminatory enforcement of the CCA is mounting—inevitably there will be a constitutional challenge to the CCA where this issue will be debated. The misuse of the CCA as a tool to circumvent Charter rights has become too frequent and routine for the courts to ignore.

But for now, the Cannabis Control Act is good law. There are ways to minimize your exposure to unreasonable detention and search under this Act. If you are transporting cannabis products that are not in their original unopened packaging, keep them in closed containers in the trunk of your vehicle. Ensure that the cabin area of your vehicle, especially within arm’s reach of the driver, is clear of any cannabis residue or debris or consumption paraphernalia such as rolling papers or pipes. If you have recently smoked cannabis products before getting into your vehicle, drive with the windows down initially to allow any residual odour of marijuana to dissipate. Minimize the excuses available to an overzealous police officer.

If you are charged with a criminal offence that arises out of a search ostensibly conducted under the authority of the Cannabis Control Act, you likely have defences available to you based on violation of your rights under the Canadian Charter of Rights and Freedoms. Illegally obtained evidence can be, and often is, excluded at trial. Obtain competent criminal defence counsel to assist you in avoiding the devastating consequences of a criminal record.

© David G. Bayliss, May 2024