Penalties are possible for those thumbing their noses at the rules, but current reticence to go the enforcement distance could derail efforts to get consumers out of the illicit market

With many illicit storefronts pressing on despite threat of search, seizure and other actions, Ontario’s government is setting its eyes on the consumer.

Though an understated feature of C-45, the Cannabis Act, which has similar language to its Ontario counterpart, notes “no person shall purchase cannabis except from an authorized cannabis retailer.” The act makes clear that buying marijuana through anyone outside of provincially sanctioned entities—in Ontario, that would be in-person at approved private retail stores, but mostly online at the Ontario Cannabis Store (OCS)—can be met with a fine of up to $100,000 and imprisonment for up to one year.

The province has recently emboldened its stance through the public service announcement—building on an existing campaign—that warn Ontarians that cannabis packages not bearing the “Ontario Authorized” seal could cost them a lot more than their dispensary-bought pre-roll.

#Cannabis law info on a Toronto bus shelter. pic.twitter.com/iYeOOH4mR9 — Sarah Steiner (@SarahGoat) December 22, 2018

The risk is real, but is the likelihood of punishment?

Experts in cannabis law are sceptical. “I would be surprised to know of anybody who has been sentenced to imprisonment for those offences in the last long while,” says defence attorney John Conroy, Q.C. of Conroy & Company. Conroy suggests that only in more extreme cases would a conviction or hefty fine be applied, such as selling cannabis to a minor or large-scale trafficking.

With April’s legal retail outlets kicking in, he says the recent announcement might be little more than a scare tactic to pull government-averse consumers towards regulated avenues. “I suspect it’s mostly smoke and mirrors to pacify the right wing and make themselves look tough,” Conroy contends, suggesting the province’s ability to enforce restrictions on consumers of non-legal cannabis may be limited.

Is the likelihood of punishment “hypothetical” at this point?

Following a discussion with cannabis-focused lawyer Harrison Jordan, it seems much of the Cannabis Act’s implementation regarding the purchase of illicit cannabis is, for the time being, hypothetical. “At least theoretically, you could be subject to certain penalties,” says Jordan, who guides individuals and small businesses through the act’s murky waters. “For possession of a small amount (theoretically, a single gram, but largely up to the officer’s discretion), police have the ability to issue a provincial or federal ticket,” he explains, but doubts the Crown would ever seek imprisonment.

Conroy agrees, though he supposes it might rap a few knuckles while trying to push consumers out of the underground market. “The judges may be more severe initially, but I suspect imprisonment will be limited to those serious breaches.”

Although wording may vary, Jordan describes the most common ticket one would encounter as being for the “purchase or possession of illicit cannabis,” which rounds off around $150 for provincial offences, and $200 for more troubling federal offences—notably less than the provincially touted $100,000. He cites the clear-cut Section 9 of Ontario’s updated Cannabis Control Act as the power behind the penalty: “No person shall purchase cannabis except from an authorized cannabis retailer.” Like most ticketed offences, a failure to pay the fine could result in a criminal record.

Enforcing cannabis laws

While authorities maintain the right to enact and follow through on available penalties, Conroy and Jordan aren’t aware of any recent instances of Canadians being detained to have their cannabis checked for signs of impropriety, such as not having the proper seal or, in pre-legal days, not having a person’s “green card” (medical marijuana prescription). A report released in 2018 details figures on cannabis possession arrests, but does not speak to the legality of the cannabis plants themselves in those cases.

From a functional standpoint, Jordan says it’s difficult to comprehend how authorities would enforce such laws. “I’ve never seen police charge people inside dispensaries when they’re just customers,” he says. A police officer could ask an individual from where he or she purchased cannabis, but there would seldom be a way for that officer to verify a given answer, he points out.

Additionally, the right to grow cannabis makes the prospect of determining lawfulness a lot more difficult, Jordan suggests. “You’re allowed to grow your own plants. That’s going to make it harder for ‘reasonable grounds’, since [officers] have to establish reasonable grounds that it’s illicit or for illegal purposes,” he adds.

What you need to know about illicit cannabis

Though legal risks for buying products outside of the OCS or licensed retailers appear ambiguous, Jordan warns of a few reasons to be careful where buying cannabis. “It’s possible there could be contaminants, or the production of that cannabis might not follow standard quality controls,” he cautions, noting that elements like mould and other undesirables are more likely to be present when purchased through unregulated sellers.

Jordan is similarly unconvinced consumer-targeted campaigns like the one launched by the Ontario government will pull support from illicit suppliers the way legislators seem to hope. “You have an illegal market that’s existed for ages, so the legal market has its work cut out for it,” he adds.