Written by Lachelle Arevalo.*

How does legal marijuana become illegal? Two words: grey area.

The federal Cannabis Act and its provincial counterpart, similarly called Cannabis Act, 2017, are quite extensive, and when read together, can be baffling. Before planning a party on October 17 to celebrate what is possibly the new 4-20, be aware of the following provisions that could potentially prevent you, your friend, or family member from committing a federal crime or provincial offence.

Illicit cannabis

The term “illicit cannabis” is mentioned in the federal Cannabis Act eleven times, four times of which refer to the prohibition on possession, distribution, production, and cultivation. It defines illicit cannabis as “cannabis that is or was sold, produced or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act.‍”

“It means, you cannot possess, distribute, produce or grow cannabis that you know to be illicit. If you do not know that the cannabis is illicit, then that’s not an offence,” Cannabis lawyer Harrison Jordan explains.

Harrison Jordan practices Canadian cannabis law, with an emphasis on legal and regulatory matters related to the cannabis plant. Click here to visit his website.

“For example, you go to a street dealer and pay money for cannabis – that would be considered illicit cannabis because that dealer is not authorized to sell cannabis. If you know that that’s the case, you’re committing an offence,” Jordan clarifies further.

Jordan’s explanation coincides with the Ontario legislation, where it states in Section 9 that, “No person shall purchase cannabis except from the Ontario cannabis retailer.”

However, it is yet to be seen if there would be other interpretations of this provision, which could essentially expand the meaning of “illicit cannabis” and in so doing, the number of potential lawbreakers.

Where can you purchase cannabis in Ontario?

The Ontario Liberal Party, led by former Premier Kathleen Wynne, passed legislation via Schedule 2 of Bill 174, Ontario Cannabis Retail Corporation Act, 2017, which fundamentally gives exclusive rights to the Ontario Cannabis Retail Corporation, a subsidiary of the government-owned Liquor Control Board of Ontario, to sell cannabis in Ontario.

In this legislation, the Ontario government planned to open “40 stores in 2018, growing to 80 by 2019, and up to 150 stand-alone cannabis stores by the end of 2020,” which is supplemented by an online shop, where cannabis users can also purchase securely and privately.

However, the enforcement of this legislation has been postponed, due in part to the result of the recent provincial elections, wherein Wynne lost to Progressive Conservative leader, Doug Ford. Premier Ford has openly criticized the Liberal Party’s model and publicly declared that he is open to having private marijuana dispensaries as well.

“I hope this means that there’s going to be an open door for small and medium businesses. Hopefully, it’s not just large, publicly traded companies, but that we have some local entrepreneurs as well that are able to start a business and pay good wages to people who work there,” Jordan says.

Jordan also thinks that if the Ontario government decides to adopt Premier Ford’s stance on the distribution of cannabis, “the private market is going to increase competition and hopefully will mean more locations than the 40 that were promised in Ontario by end of the year.”

Then again, since Premier Ford has not given a clear and precise directive on the matter, Ontarians are still left in limbo with regard to authorized cannabis retailers.

Distribution

Jordan also urges cannabis users to take note of the word “distribute” in both federal and provincial legislations, which include the term “make available.”

“Right now, in the current legislation, we don’t have the words to distribute – we have to traffic. To distribute is a bit broader and it might mean that we’ll see some extra scrutiny on parents who haphazardly make cannabis available for their children,” he says.

Jordan then presents a scenario where a parent “leaves the marijuana out in their house and the kid just happens to find it. The parent didn’t mean to do that, but this possibly could lead to a charge of distributing cannabis because the parent made available the cannabis to the kid, even if he or she didn’t explicitly put the cannabis in their hands,” he elaborates.

In Ontario, a person will be able to grow up to four cannabis plants per residence. Imagine that person to be a parent with a child that is younger than 19 years old. The parent’s decision to grow cannabis at home, although legal within the legislation, might actually open up prosecutions.

How much cannabis can you possess?

In Ontario, a cannabis user will be able to have a maximum of 30 grams of dried cannabis in public at any time.

There are, however, different classes of cannabis, and dried cannabis is just one of them. What if a cannabis user had a combination of cannabis plant seeds, fresh marijuana, and cannabis oil in his or her possession?

Schedule 3 of the federal Cannabis Act provides a table to help clarify this ill-defined situation.

Schedule 3 of the Federal Cannabis Act
Define “grey area”

Cambridge Dictionary defines grey area as “a situation that is not clear or where the rules are not known.” If you were stuck in a situation where you had to mull over on whether or not to consume your supposedly legal cannabis, what would you do?

Your answer will determine if you are a responsible cannabis user, or you would likely need good legal representation in the near future.

Update: Soon after this article was published, the Ontario government announced that private retailers will be allowed to sell recreational cannabis. Starting October 17, the province will launch online cannabis sales, but ‘bricks and mortar’ stores won’t begin until April 1, 2019. For more details, click here.
*This is part 2 of a 3-part series on the legalization of recreational cannabis in Canada. Read part 1 here.
Lachelle is a paralegal licensing candidate. She spent several years as a journalist and a marketing communications professional in three countries. She loves reading crime fiction and non-fiction books, watching Netflix shows, and exploring all-you-can-eat brunches in Toronto.
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