- A. Hannaford (law student)
Kushy Canada and Dopey Manitoba: The Do’s and Don’ts of Legal Marijuana in Manitoba
Later this year, many marijuana enthusiasts will celebrate the federal de-criminalization of cannabis in Canada with Bill C-45, The Cannabis Act. Bill C-45 amends the current Controlled Drugs and Substances Act to allow adults to legally possess pot. But what does “de-criminalization” mean for the average Canadian who likes to recreationally smoke the devil’s lettuce? Let’s dive into the ins and outs of what exactly Canadian Kush aficionados will be allowed (and not allowed) to do after Bill C-45 comes into force.
The Cannabis Act allows adults who are 18 years or older to have up to 30 grams of legally obtained, dried Mary-Jane in their possession and allowed to share up to 30 grams of their supply with their friends. Under the federal law, adults can grow up to 4 dank Christmas trees in their home. Adults are also allowed to manufacture their own products, like magic brownies, provided they are for not for retail sale.
Federally, it would still be illegal for minors under the age of 18 to possess more than 5 grams of that sticky icky. An adult cannot possess more than 30 grams in public, and cannot possess any wacky tabacky that comes from an illegal source.
Possession-based infractions are indictable offenses under The Cannabis Act, and persons found guilty under federal legislation are liable to up to five years in prison.
The Cannabis Act also designates optional jurisdictional duties to the Provinces such as creating licensing regimes for distributors, setting the minimum age, lowering public possession limits, and placing further limits on growing plants in the home. Provinces are also allowed to restrict where adults can indulge in a left-handed cigarette in public.
Manitoba Bud Rules
Bill-11 is Manitoba’s long-awaited answer The Cannabis Act’s delegation of duties. Similar to current liquor laws in the province, retail stores require licenses from the Manitoba Liquor and Lotteries Commission (MLLC) and can only sell MLLC sourced and distributed products. This ensures that all black-market garbage cabbage is more easily identifiable, and allows the province to crack down on prohibited sale of product.
Interestingly, Bill-11 prohibits consumption of bionic chronic in a cannabis store. Unlike current liquor licensing under the Liquor and Gaming Control Act, there are no provisions in Bill-11 that contemplate service licenses for establishments looking to serve herbal refreshments. This would subsequently disallow any bar- style establishment where people could both purchase and consume their combustible herbage in the same location.
The federal Cannabis Act lawfully prescribes the provinces the ability to tighten up regulations in certain areas within their jurisdiction. Accordingly, in Bill 11, Manitoba increased the legal age of consumption from 18 to 19.
The Province also does not allow for any residential growth of the righteous bush for personal use, despite federal law allowing up to 4 plants per household. The Province also has a tougher stance on youth possession, where the federal act allows for minors to possess up to 5 grams, Manitoba strictly prohibits all youth possession of hippie lettuce.
Unlike the current liquor regulation in the province, licensed retailers are privately owned enterprises. Four companies in Manitoba have been approved to open and operate licensed retail stores, but the province has not made a decision on how many stores each private entity can control.
Another interesting, and potentially problematic provision in the proposed Manitoba legislation Bill 11 is section 145.1.
Section 145.1 states that:
In a proceeding, evidence that an individual left a cannabis store with cannabis in his or her possession is proof, in the absence of evidence to the contrary, that the holder of the retail cannabis license gave, sold, or otherwise supplied the cannabis to the individual.
Section 145.1 puts a reverse onus on the licence-holder to prove that a person found in possession of illegal Maui-wowie upon leaving a retail store did not actually purchase it in that store. Considering the severe penalty ascribed in the remaining federal prohibitions, it is possible this section could be liable to a section 11(d) Charter challenge. The owner of a retail store cannot and should not be responsible for ensuring their customers are not in possession of illegally obtained sassafrass. This provision allows for a situation where a minor enters the store and despite refusal of service, if they are found to be in possession of illegal ganja upon exiting the store, the retail licenser holder must prove that they did not sell or give them the reefer or risk a penalty of 5 years imprisonment.
If this provision was subject to a Charter challenge, the province would have to show how this provision was proportionate to the objective of Bill 11 under section 1 of the Charter. The bill itself claims that the safe and responsible retail distribution of 420 alfalfa within the province, including the regulation of persons who sell and distribute is the objective. The Province would have to prove the rational connection between safe retail distribution and putting a reverse onus on licensees where they could be personally and criminally responsible for the possessions of people that are either customers, or merely walk in and out of the store without purchasing anything.
The province has been doing its best to have basic licensing and distributions provisions ready for when the green goddess is de-criminalized federally. Despite best efforts, the bill places a concerning reverse onus on retailers that may be subject to an 11(d) Charter challenge in the future. Eventually the province should confront the probable demand for licensed smoking lounges, where customers can both purchase and consume. The province will also have to confront the demand for THC-based products in the cosmetic and holistic health market. Bill 11 contemplates retail sale of dried bud for immediate consumption, but does not contemplate any further industrial development. Bill 11 is a good place for the Province to start, but it is not perfect.
References:
Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, 1st Sess, 42 Parl, 2015, (as passed by the House of Commons 27 November 2017).
Bill 11, The Safe and Responsible Retailing of Cannabis Act, 3rd Sess, 41st Leg, Manitoba, 2017.
The Liquor and Gaming Control Act, RSM, 2013, c 51.
