Bill C-45: An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts
Tabled in the House of Commons, May 29, 2017
The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-45,An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-45 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Criminal offences (Part I, Division I)
Clauses 8 through 13 of the Bill would create a number of new criminal offences, including offences in relation to the possession, distribution and production of cannabis. These new offences would replace the offences currently applicable to the same conduct under the Controlled Drugs and Substances Act (CDSA). Clause 8 would set out the basic possession offences, which would include different offences for adults (individuals over the age of 18) and young persons (individuals over the age of 12 but under 18). For example, under paragraph 8(1)(a), adults would be prohibited from possessing, in a public place, cannabis in an amount greater than the equivalent of 30 grams of dried cannabis. Under paragraph 8(1)(c), young persons would be prohibited from possessing more than 5 grams of dried cannabis or its equivalent. Clause 9 would create a number of offences related to the distribution of cannabis. “Distributing” would be defined to encompass various means of making cannabis available, other than selling, which would be covered by a separate offence in clause 10. Adults would be prohibited from distributing cannabis to individuals under the age of 18 and from distributing more than 30 grams of dried cannabis or its equivalent to adults. Young persons would be prohibited from distributing more than 5 grams or its equivalent. Clause 12 would create offences in relation to the production of cannabis and would prohibit, among other things, the cultivation, propagation or harvesting of more than four plants by an adult in their residence. Cultivation, propagation or harvesting by young persons would be prohibited. Individuals would be permitted to alter the physical or chemical properties of cannabis that they can lawfully possess, provided that they do not use explosive or highly flammable substances to do so.
The new offences would be similar to those contained in the CDSA, but the applicable penalties would be adapted to reflect the new legal environment in which access to cannabis would be permitted but strictly regulated. For all but two of the new offences, the maximum penalty would be lower than the maximum penalty that is currently applicable under the CDSA. For example, the offences of selling and distributing cannabis would be subject to a maximum penalty of 14 years’ imprisonment as opposed to a maximum penalty of life imprisonment for the corresponding offence of trafficking under the CDSA. The only two exceptions would be the offences of simple possession and cultivation of cannabis plants over the applicable limits. The maximum penalties for these offences would remain the same as those under the current provisions of the CDSA (five years less one day and 14 years, respectively). Importantly, the Bill would not include any mandatory minimum penalties and would preserve the discretion of judges to craft sentences that are proportionate to the gravity of the offence and the degree of responsibility of the offender.
Life, liberty and security of the person (section 7)
Any criminal prohibition that gives rise to the possibility of imprisonment engages the section 7 right to liberty, and must therefore accord with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
The following considerations support the consistency of the offences with section 7. The complete prohibition on recreational cannabis was upheld by the Supreme Court of Canada in R. v. Malmo Levine (2003) and R. v. Clay (2003). As compared to the existing law, the proposed narrowed offences would promote liberty and autonomy by creating a zone of lawful conduct in relation to cannabis. The Bill would retain the overarching purposes of the existing law – the protection of public health and public safety – while adding a number of more specific purposes, including in relation to the protection of the health of young persons and the reduction of illegal activities in relation to cannabis. The new offences target the specific risks associated with the use of cannabis by young persons and the diversion of cannabis into the illegal market. As such, they reflect a tailored approach to the legislative objectives.
Equality (section 15)
Section 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of age.
The new possession, distribution and production offences potentially engage section 15 because they apply differently to adults than to young persons – with a wider range of conduct being criminally prohibited for young persons as compared to adults. It is important to note that young persons would be dealt with under the Youth Criminal Justice Act (YCJA), which tempers the effects of involvement with the criminal justice system in several ways. The YCJA recognizes that young people lack the maturity of adults, and incorporates principles and measures that are consistent with this reduced level of maturity. The YCJA encourages the use of measures outside of the formal court system for less serious offences in recognition of the fact that such measures are often the most appropriate and effective way to respond to youth offending. Police are required under the YCJA to consider taking no further action, or using measures such as warnings or referrals to community-based programs, before laying charges. Such measures are presumed to be adequate to respond to first-time, non-violent offences, including drug offences. Where formal charges are pursued and a young person is found guilty of an offence, the YCJA provides for flexibility in sentencing, including the option of reprimanding the young person, and imposes limits on the retention and use of criminal records.
The following considerations support the consistency of these offences with the Charter. The broader criminal prohibitions applicable to youth are based on a substantial body of scientific evidence concerning the heightened risks of cannabis use for young persons as compared to adults. In particular, the evidence suggests that cannabis use during adolescence, when the brain is still developing, poses greater health risks than use in adulthood. These risks include greater potential for addiction, negative effects on cognitive and intellectual development, and harms to mental health. In addition, the prohibitions applicable to young persons are specifically tailored to narrow the threat of criminal sanction in several ways, including the following: the possession of small amounts of cannabis by young persons is not criminalized and the prohibitions operate in the context of other prohibitions designed to prevent cannabis from getting into the hands of young persons in the first place. In this latter respect, it is important to note that the Bill would prohibit the sale of cannabis to a person under 18 years of age, distribution of cannabis by an adult to a person under 18 years of age, and distribution of more than 5 grams of cannabis by a young person.
Restrictions on promotion, packaging and labelling (Part I, Division 2, Subdivisions 1, 2)
The Bill would place a number of restrictions on the promotion, packaging and labelling of cannabis and cannabis accessories, similar to the restrictions applicable to tobacco products under the Tobacco Act. Clauses 16-24 would restrict the promotion of cannabis but would not apply to artistic or scientific works provided that no payment or reward is given for the use or depiction of cannabis in the work. The restrictions would include a general prohibition on the promotion of cannabis, cannabis accessories and services related to cannabis, subject to limited exceptions for informational and brand-preference promotion targeted at adults. Also included would be, among other things, prohibitions on false promotion and sponsorship. Clauses 25-28 would establish comparable restrictions in respect of packaging and labelling, generally prohibiting packaging and labelling that could be appealing to young persons or encourage cannabis use.
Freedom of expression (section 2(b))
Section 2(b) of the Charter protects freedom of expression and generally extends to advertising and other expression that is done for commercial purposes, including commercial expression by corporations. The restrictions on promotion, packaging and labelling would limit the right to freedom of expression.
The following considerations support the consistency of the restrictions on promotion, packaging and labelling with the Charter. The restrictions on promotion, packaging and labelling are modelled on the approach taken in the Tobacco Act, which was upheld by the Supreme Court of Canada as a reasonable limit on expression rights in Canada (A.G.) v. JTI-MacDonald (2007). Although the risks associated with cannabis are not identical to those associated with tobacco, they are sufficiently serious to ground a comparable approach. The restrictions target expression that is of low value, namely, commercial expression that is used to induce people to engage in behaviour associated with health risks (particularly for vulnerable groups including young persons). The Bill would permit informational and brand-preference promotion, subject to placement restrictions to limit young persons’ exposure to such promotion. This would allow adult consumers to make informed decisions about consumption while responding to the greater risks that cannabis poses for young persons.
Ticketable offences and administrative monetary penalties (Parts 2 and 10)
Part 2 (clauses 51-60) would create a ticketing option for certain offences. Specified proceedings against adults could be commenced by giving the accused a ticket setting out listed information, including: the police officer’s reasonable grounds to believe that the accused committed the offence; the amount to be paid; the manner and period within which payment must be made; the consequences of payment and non-payment; and the procedure to be followed if the accused wishes to plead not guilty (clause 51). Payment would result in a conviction being entered in the judicial record of the accused. However, the effect would be the same as that of a pardon or record suspension – the judicial record would be kept separate and apart from other judicial records and could not be used to identify the accused as a person dealt with under the Act (clause 52). Where an accused pleads not guilty but is ultimately found guilty, a conviction would be entered and the accused would be liable to the fine that was set out in the ticket (clause 53). Non-payment of the ticket would also result in a conviction (clause 54). Although a finding of guilt or failure to pay the ticket would both result in a criminal record, the Bill would provide that upon payment of the amount owing, the judicial record would have to be treated in the same way as the records of people who initially pay the ticket (subclauses 53(2), 54(2)). The only circumstance in which a ticket could lead to imprisonment is that of an accused who is able but unwilling to pay (clause 55).
Part 10 (clauses 110-127) of the Bill would create an administrative monetary penalty regime that would be available in respect of contraventions of the provisions of the Act (except the Criminal Activities provisions in clauses 8-14) and regulations or certain ministerial orders (clause 111). The Bill would provide for the issuance of a notice of violation setting out, among other things, the alleged violation, the penalty, and a summary of the named person’s rights, including the right to seek review of the alleged facts or the penalty amount (clause 112). Proceeding with a notice of violation would preclude proceeding with criminal charges (clause 126) and would not give rise to the possibility of imprisonment.
Fair trial rights (section 11) and the presumption of innocence (section 11(d))
Section 11 of the Charter guarantees certain procedural rights to persons who have been charged with an offence. Its protections apply to proceedings that are “penal in nature” or that may lead to “true penal consequences”. True penal consequences include imprisonment and fines with a punitive purpose or effect, as may be the case where the fine or penalty is out of proportion to the amount required to achieve regulatory purposes. Section 11(d) guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Ticketable offences (Part 2)
A ticket can result in conviction in the absence of a hearing and therefore has the potential to impact section 11(d) rights. The following considerations support the consistency of Part 2 of the Bill with the Charter. The Bill would, through the requirements related to the delivery and content of the ticket, provide for adequate notice to the accused and an opportunity to assert their right to a hearing. The ticketing option would be limited to proceedings involving conduct that is on the less serious end of the spectrum (e.g., possession in public or distribution by an adult of more than 30 grams but not more than 50 grams of dried cannabis or its equivalent) and that is not associated with significant stigma. Finally, it would always be open to an accused who was convicted (whether by a finding of guilt or non-payment of the ticket) to pay the amount owing, at which point the judicial record would have to be kept separate and apart and could not be used to identify the accused as a person dealt with under the Act.
Administrative monetary penalties (Part 10)
Part 10 would give rise to the possibility of substantial monetary penalties and therefore has the potential to impact section 11 rights. The following considerations support the consistency of Part 10 with the Charter. The proceedings leading to the imposition of a monetary penalty would be administrative in nature. The penalty imposed would have to be based on the compliance-related factors listed in subclause 112(3) and serve the purpose of promoting compliance with the Act (subclause 111(2)). The Bill would authorize designated officials to impose potentially high penalties (up to $1,000,000 per day of a continuing violation). However, high monetary penalties would only be imposed where necessary to provide sufficient economic incentives for compliance so that penalties are not simply considered a cost of doing business by large corporations. Finally, penalties would be subject to civil enforcement in the Federal Court but could not result in imprisonment for non-payment.
Inspection, requirement and disclosure powers (Parts 3, 5, 6, 7)
The Bill would create a number of regulatory powers analogous to those in other comparable laws. For the purpose of verifying compliance or preventing non-compliance with the Act or regulations, inspectors would, among other things, be authorized to enter and conduct inspections in places to which the regulatory requirements under the Act apply (clause 86) and to order any person authorized to conduct cannabis-related activities to provide documents, information or samples (clause 85). The Bill would also include several provisions authorizing the designated Minister to require information for regulatory purposes (clauses 62, 73-74), including for the purpose of establishing or maintaining a national cannabis tracking system (clause 82).
The Bill would authorize the disclosure of information in a number of circumstances. Clause 83 would authorize disclosure by the Minister of information in the national cannabis tracking system including: disclosure to provincial governments or bodies for the purpose of verifying compliance or preventing non-compliance with a provincial law authorizing the selling of cannabis; disclosure to any federal Minister for the purpose of verifying compliance or preventing non-compliance with another federal Act that applies to cannabis or any cannabis-related activity; and disclosure that is necessary to enable Canada to fulfill its international obligations. Under clauses 128 and 129, the Minister would also be authorized to disclose any personal or confidential business information that the Minister considers necessary to protect public health or public safety.
Searches or seizures (section 8)
Section 8 of the Charter protects against “unreasonable” searches and seizures. A search or seizure will be reasonable if it is authorized by a law, the law itself is reasonable in the sense of striking an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner. Because the inspection, requirement and disclosure powers have the potential to interfere with privacy interests they may engage section 8.
The following considerations support the consistency of these powers with the Charter. The inspection and requirement powers would be available for regulatory, not penal, purposes (e.g., to assist the Minister in making licensing decisions, to verify compliance or prevent non-compliance with the Act or regulations, etc.) in circumstances where privacy expectations are diminished. As such, the proposed powers are broadly analogous to inspection powers that have been upheld in the regulatory context. The disclosure powers would similarly be available for broadly regulatory purposes (e.g., verifying compliance or preventing non-compliance with provincial laws regulating the sale of cannabis and with federal laws applicable to cannabis; fulfilling international obligations; and protecting public health or public safety). Importantly, these provisions would confer a discretion on the Minister, which would have to be exercised in accordance with the Charter.
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