• Niche Canada

The Cannabis Act

On April 13, 2017, the Liberal government tabled legislation to “create a strict legal framework for controlling the production, distribution, sale and possession of cannabis in Canada.” [1] Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (“the Cannabis Act”), comes after the report by the government-appointed Task Force on Cannabis Legalization and Regulation released in November 2016. The government also tabled Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, which focuses on drug-impaired driving and the expansion of police powers for detection and enforcement. The Cannabis Act focuses on three main priorities including: i) preventing youth from accessing cannabis; ii) the protection of public health and public safety; and iii) “eliminating” the illicit cannabis market through serious criminal penalties for those operating outside the legal framework. The Cannabis Act is expected to be in full force by July 2018.

The Cannabis Act will:

  • Set a minimum age of access at 18 years old

  • Allow the possession of 30 grams of cannabis and under (or equivalent) for adults, including sharing with other adults of up to 30 grams

  • Allow the purchase of up to 30 grams at one time from a licensed distributor

  • Prohibit the illegal sale or distribution of cannabis; cannabis must be purchased from a legal source

  • Allow each household to produce up to 4 plants for personal use

  • Prohibit products that are appealing to youth, including packaging and labeling, as well as promotion in places which could be seen by young people

  • Place restrictions on advertising and promotion, which includes the allowance of product packaging and labeling to provide factual and accurate information, but cannot include testimonials, endorsements, sponsorship of persons, event or activity, as well as any elements which ‘glamorize’ the use of cannabis

  • Prohibit giving or selling cannabis to youth as well as using young people to commit a cannabis related crime, creating two new criminal offenses with a 14 year maximum penalty

  • Avoid criminal charges for individuals between the ages of 12-17 for possessing or sharing up to 5 grams of cannabis; all other violations are subject to the Youth Criminal Justice Act

  • Allow adults to make cannabis-based products at home for personal use. Allow for federal licensing powers for the production and sale of cannabis, similar to the Access to Cannabis for Medical Purposes (“ACMPR”); existing Licensed Producers under the ACMPR will be grandfathered as licensees and immediately obtain the rights to produce, distribute and sell cannabis (through the mail) in the non-medical market

  • Prohibit products combining cannabis with caffeine, alcohol or nicotine

  • Various forms of cannabis products will be permitted, including edible products, once appropriate regulatory oversight has been created

  • Develop a cannabis tracking system as part of the licensing regime to track information on cannabis producers, distributors and retailers

  • Authorizes the import and export of cannabis to and from Canada with an import or export certificate issued by Health Canada

  • The Liberal budget includes a commitment of 9.6 million dollars over 5 years to public education, awareness and surveillance

  • The proposed Act does not detail how cannabis will be priced or taxed

The Cannabis Act leaves many important decisions up to the provincial and municipal governments with minimum conditions set by the federal government. Provincially, this can include deciding how cannabis will be sold and overseeing the distribution / sale of cannabis, the minimum age of purchase (with 18 years of age as the minimum set by the Cannabis Act), training for retail staff if appropriate, as well as smoking and vaporizing restrictions. Municipalities will be responsible for things such as zoning requirements, business licensing, oversight of home growing where appropriate, and collaborating across levels of government on policing and education issues.

Further, Bill C-46, the proposed impaired driving legislation, would allow for “new and stronger laws to punish more severely those who drive while under the influence of drugs, including cannabis”[2]. As it relates to cannabis, this includes:

Allowing roadside oral fluid drug test during a legal roadside stop if they have reasonable suspicion that a driver has drugs in their system; once reasonable grounds are established, the officer could demand the evaluation of a driver by a Drug Recognition Expert or a blood sample.

  • Establish per se offenses[3] for THC including:

  1. 2 nanograms per milliliter of blood (ng/ml) but less than 5 ng/ml will result in a summary conviction criminal offense

  2. 5 ng/ml or more of THC will result in a hybrid offence, prosecuted by either indictment or by summary conviction depending on the severity

  3. a combination of THC level above 2.5 ng/ml of blood, and a blood alcohol concentration of 50 mg/100ml of blood would result in a hybrid offense

  • Hybrid offences would be punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders

  • The maximum penalties would be increased to two years less a day on summary conviction (up from 18 months), and to 10 years on indictment (up from 5 years)

  • Zero tolerance for cannabis impaired driving applied to young drivers


[2] Ibid.

[3] Per se limits refer to a specific concentration of a substance that assume a criminal charge when a set cut-off is exceeded. While per se limits for alcohol consumption and driving have been scientifically supported, per se limits in the case of cannabis are highly controversial: impairment varies based on numerous factors, and as such, per se limits may result in criminal charges for any user who exceeds the limit, even if no signs of impairment are demonstrated, while others may not exceed per se limits, yet be too impaired to drive safely.