FactsCan

By: Jacob Schroeder on December 1, 2018

The Cannabis Act decriminalizes possession and distribution of five grams or less of marijuana by youth. Despite decriminalization, each province and territory has set a minimum age for possession at 18 years old or higher. Much like alcohol, possession of small amounts of marijuana by youth is not criminal, however, it is still unlawful.

A newsletter distributed by Arnold Viersen, MP for Peace River-Westlock, claimed that Bill C-45, now the Cannabis Act, fails to protect kids. It said, “children aged 12 to 17 can possess up to five grams [of marijuana]” and “children can distribute up to five grams to other 12 to 17-year-olds.”

The newsletter came to our attention in November 2018, but there’s no print date.

This check looks into whether youth aged 12 to 17 can possess or distribute five grams or less of marijuana under the new law.

What the law says

Vierson confirmed that his newsletter refers to sections 8(1)(c) and 9(1)(b) of Bill C-45, which is now law, called the Cannabis Act.

The relevant part of section 8 prohibits youth from possessing more than five grams of marijuana. Similarly, section 9 prohibits youth from distributing more than five grams. By omission, this means that 12 to 17-year-olds are not criminally prohibited from possessing or distributing five grams or less.

Vierson noted that prior to Bill C-45, possession and distribution under five grams by youth were criminalized. He pointed to government testimony heard by the Senate in May during committee debate on the bill, which acknowledged the then-proposed law did not criminalize five grams and below, instead leaving it to the provinces to address.

In that Senate hearing, Bill Blair, then parliamentary secretary to the justice minister, said, “in every province and territory, without exception, there will be legislation put in place that enforces an absolute prohibition on possession, purchase and consumption of cannabis for people under the age of majority.”

Apart from the issue of possession and distribution by youth, the law does prohibit distribution whether by sale or any other form to youth. No one aged 18 and above is allowed to distribute any amount of marijuana to youth.

If it’s not criminalized, is it allowed?

If it’s not a federal crime for youth to possess five grams or less of marijuana, does that mean it’s allowed? The short answer is no. Just because something is no longer federally criminalized does not mean that it is permitted.



Michael Spratt, a partner at Abergel Goldstein & Partners specializing in criminal law, said that while it’s true that possession and distribution of five grams or less are no longer offences, it is false to say that the law condones these acts. He compared it to liquor laws. The provinces are in charge of controlling alcohol possession by youth. While youth are not guilty of federal offenses for possessing alcohol, they are still prohibited by provincial legislation. The same is now the case for marijuana of five grams or less.

Currently, every province in Canada prohibits possession of marijuana by youth, setting a minimum age for possession at 18 years old or higher.

Why the change?

Kirk Tousaw, a lawyer and advocate for marijuana reform, said the government decriminalized five grams and below because it was trying to ensure that an activity that many young people engage in is not criminal. For example, young people passing a joint between each other (which is technically distribution) is no longer a criminal offense.

Carole Morency, a director general of the Criminal Law Policy Section at the Department of Justice Canada, told a Senate committee that while cannabis was fully criminalized, youth nevertheless had access to it. Now that it’s legalized, youth will still have access to it. Morency used this reality to justify decriminalization of small amounts.

Verdict

The Cannabis Act decriminalizes possession and distribution of five grams or less for youth. But it’s incorrect to claim, as Viersen did, that these activities are allowed. They are decriminalized but they still aren’t lawful anywhere in Canada.

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