Unintended Consequences? The Cannabis Act’s Impact On Youth
Any views expressed in this blog post are those of the author alone, and do not necessarily reflect the views of the Ministry of the Attorney General (Ontario)
Bill C-45, the Cannabis Act, was passed by the Senate last Thursday with more than 40 amendments and has now returned to the House of Commons. While Members of Parliament will debate these amendments, none of them address the legislation’s primary goal which is to legalize the possession and consumption of small quantities of marijuana for adults. The legislation itself therefore seems likely to come into force sometime this summer.
Yet curiously absent from much of the coverage of the Cannabis Act is a critical review of a startling asymmetry found within it. The Act will create criminal penalties for young persons that will not exist for adult persons. The consequences of this policy decision are potentially far more significant than I suspect many lawyers have yet appreciated.
How The Cannabis Act Criminalizes Young Persons
A “young person” is defined as an individual who is 12 years of age or older but under 18 years of age.
Section 8 of the Act creates a list of criminal activities. I highlight below the key sections and how they differ in their treatment of young persons and adults
"8 (1) Unless authorized under this Act, it is prohibited
(a) for an individual who is 18 years of age or older to possess, in a public place, cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;
(c) for a young person to possess cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 5 g of dried cannabis;"
The legislation is clear. A young person is guilty of a criminal offence if he or she is proven to be in possession of more than 5g of dried cannabis. An adult is only guilty of a criminal offence if proven to be in possession of more than 30g.
A young person may be prosecuted for this offence either by way of summary conviction or by indictment. If found guilty, sentencing takes place under the relevant provisions of the Youth Criminal Justice Act
Was This Intentional?
When I first noticed this aspect of the legislation last year I wondered if this was truly the government’s intent. Currently, for example, young persons may not lawfully possess alcohol, cigarettes or pornography, but this behaviour is not addressed through a criminal statute. Rather, the provinces have created regulatory regimes which may carry with them provincial offences. But if a 15 year old is caught by the police drinking a beer, he or she does not face a criminal charge.
Yet the Justice Minister’s official statement on the legislation leaves no doubt that this was intentional. As reported in the Lawyer’s Daily, Minister Wilson-Raybould argued that criminal penalties were needed for young persons in order to protect them, as evidence has demonstrated adolescent brains are more susceptible to the harm associated with use of cannabis.
Unforeseen Criminal Law Consequences?
Several of my colleagues in the criminal bar have questioned both of this wisdom of this approach and how this legislation could survive a Charter challenge brought under s. 15 (guarantee of equality) as it punishes young persons for a wider array of cannabis-related actions than it does adults. The Justice Minister’s Charter statement on Bill C-45 takes the position the legislation will pass constitutional review. I do not wish to enter into that debate personally at this time.
But I would like to bring to readers’ attention how criminalizing youth, but not adults, could have unforeseen consequences to the criminal justice system and how lawyers may wish to prepare to address these concerns once the legislation comes into force.
1 “Youth Records” Will Be Generated
If a young person is investigated by the police for possession of 5-30g of cannabis a youth record will be generated. The Youth Criminal Justice Act defines “youth record” as anything “created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act.” The retention periods for youth records vary greatly depending on how the Crown proceeded in a given case and how the case was completed. But if the Crown were to pursue a possession charge against a young person by indictment, it is possible the youth records associated with a Cannabis Act prosecution could last for 5 years after the end of any sentence imposed.
2 Young Persons Can Be Investigated, Detained and Arrested
The police may lawfully investigate anyone they have reasonable grounds to suspect may have committed a criminal offence. They may arrest anyone they have reasonable and probable grounds to believe has committed a criminal offence. They may search someone in either case, albeit to differing degrees depending on if it is a lawful detention or a lawful arrest.
But since young persons in possession of even slightly more than 5g of dried cannabis could be committing a criminal offence, this arguably gives peace officers broader powers to detain, search and arrest young persons than it grants them for adults. Historically, youth from marginalized communities are often subject to greater policing efforts than other youth and this feature of the legislation may simply perpetuate this imbalance.
3 The Impact on Bail Hearings
What if a young person is charged with possession of 5-30g of cannabis when he’s 17, then turns 18, and is arrested on a new charge? His adult bail hearing could be viewed as a “reverse onus” situation, since he would have an outstanding indictable offence (the youth charge under the Cannabis Act) while facing a new indictable charge as an adult.
4 Custodial Sentences Remain A Possibility
The Youth Criminal Justice Act was designed to significantly reduce the use of custodial dispositions for young persons. A youth with no prior record who is found guilty of the offence of simple possession of 5-30g of cannabis would certainly not be eligible for a custodial sentence.
But a young person with a prior youth record, or who was subject to a probation order at the time he or she committed this offence, could at least be eligible for a custodial sentence under the Youth Criminal Justice Act. Under sections 39(1)(b) or (c) of the YCJA, evidence that a young person has failed to comply with past non-custodial court dispositions and/or has a history that indicates a pattern of findings of guilt can be sentenced to custody on a new offence.
Even if this outcome is unlikely, it remains possible. Thus a young person could find him or herself facing the possibility of custody where an adult could not even be charged criminally for the same conduct.
5 The Paradox Of A Permanent Adult Criminal Record
Perhaps the strangest feature of this legislation is that it actually creates the possibility of a permanent adult criminal record being created for conduct that itself is not even criminal when committed by an adult.
If a young person was found guilty of possessing between 5 and 30g of cannabis and was sentenced to a probation order, the associated youth record will last for 3 years from the end of the sentence pursuant to YCJA s. 119(2)(g), assuming the Crown proceeded by way of summary conviction. Normally, if the young person did not re-offend, the youth record would automatically ‘expire’ after the end of the retention period. Accessing it in the future, absent a youth court order, would be unlawful.
But if the same person then re-offended as an adult within this youth record’s retention period, and was convicted of any criminal offence, the youth record would lose the protections of the YCJA and would be treated as an adult conviction pursuant to YCJA s. 119(9). This means he or she could receive a permanent adult record for possession of cannabis under 30g – an offence that does not even exist for adults.
Let’s imagine the following scenario:
John is 15 and caught by the police with 15g of marijuana
He refuses all offers made to him by the prosecution and has a trial
He is found guilty and sentenced to 1 year probation under the YCJA
His youth record will run for 3 years from the end of his sentence – in this case, he’ll be at least 19 when it “expires”
At 18 he is caught shoplifting and pleads guilty to “theft under $500”, a criminal offences, and receives a suspended sentence + probation
This is an adult conviction
Pursuant to YCJA s. 119(9), his marijuana possession finding of guilt as a youth is treated as an adult conviction and loses the protections of Part VI of the YCJA
Thus, Parliament has created a paradox – the existence of adult criminal records for conduct that is itself not even ostensibly criminal when committed by an adult.
I welcome feedback from readers on this blog if they have considered any other unintended consequences of the legislation I may have missed.
Brock Jones, B.A. (Queen’s) 2000, M.A. (Toronto) 2001, J.D. (Toronto) 2004, was called to the Ontario Bar in 2005. After graduating from the University of Toronto, Faculty of Law, Brock served as a law clerk to the chief justice of the Superior Court of Justice in Toronto. In 2006 joined the Scarborough Crown Attorney’s office and acted as director of its youth justice team. He has prosecuted all manner of youth cases in both the Ontario and Superior Courts of Justice, and has argued several youth justice appeals before the Ontario Court of Appeal. In 2016, Brock was awarded the Ontario Bar Association’s Heather McArthur Memorial Award for his contributions to the profession. He is also the author of Prosecuting and Defending Youth Criminal Justice Cases, from Emond Publishing.