January 27, 2025
The legalization of cannabis became a reality in 2018. First, with the removal of cannabis as a scheduled substance from the Criminal Code, then with the passing of the federal Cannabis Act, landmark legislation that established a nationwide framework for the regulation of cannabis cultivation, distribution, sale, and possession. While the federal law set the stage for cannabis regulation, provinces and territories were tasked with implementing their own rules and regulations.
Ontario responded with the enactment of the Cannabis Control Act (Ontario).
In the same way the Liquor License and Control Act (LLCA) regulates alcohol, the Cannabis Control Act regulates the possession and licensing of cannabis in the Province of Ontario.
For example the CCA, established rules respecting the legal age of possession, advertising and sale, and, as well, rules respecting the transportation of cannabis, which will be the focus of this post.
The transportation of cannabis within a motor vehicle is regulated by Section 12 of CCA, which states:
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.
Accordingly, just as the LLCA disallows driving with “open” alcohol, the CCA prohibits driving with “open” cannabis.
If cannabis is found to be unlawfully transported, the CCA conveys broad search powers upon the police:
Section 12(3) of the Act states:
A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
Accordingly, if cannabis is being transported unlawfully, the CCA authorizes the police, without a warrant, to search not only the vehicle and the driver, but any passenger as well.
Importantly, a search of a vehicle under the CCA may only be initiated when reasonable grounds exist that cannabis is being transported unlawfully. Suspicion or an officer’s hunch is clearly not enough.
The standard of “reasonable grounds” has both subjective and objective components. The subjective element is satisfied when a police officer honestly believes that an offence is being committed, while, under the objective component, the question is whether the officer’s subjective belief is supported by objective facts. Accordingly, the police must not only honestly believe that cannabis is being unlawfully transported within a vehicle, but that belief must also be objectively reasonable.
Whether reasonable grounds exist – objective facts to justify the belief that cannabis was being unlawfully transported – will depend on the circumstances of the case.
For example, the presence of unsealed cannabis packages, a clear zip-lock bag of cannabis, or the active smoking of a cannabis cigarette, within a vehicle are observations that courts have found meets the reasonable grounds test.
With respect to loose cannabis, whether the observation of cannabis leaves within a vehicle amounts to reasonable grounds will often turn on whether the amount observed is sufficient to conclude that cannabis was presently within the vehicle. For example, the observation of a small amount of cannabis (crumbs) would arguably be insufficient to support a belief that cannabis was being transported within a vehicle at the time of the police investigation in contravention of the CCA.
Whether reasonable grounds exist depend on the unique facts of each case. If you have been subject to an investigation under the Cannabis Control Act, it is advisable to speak to a lawyer experienced to determine whether the police had the necessary grounds to conduct a search in your case.
No, the smell of cannabis alone – whether fresh bunt – will generally not be sufficient to justify the belief that cannabis is being transported contrary to the CCA.
That is because the sense of smell is highly subjective, transitory and tends to linger, and thus largely incapable of objective verification. Accordingly, to authorize an arrest solely based on the smell of cannabis, as the Ontario Court of Appeal stated, would amount to “an unreviewable discretion in the hands of the officer”.
As a consequence, a search under the Cannabis Control Act based solely on the smell or odour of cannabis is open to challenge as being unlawful and in violation of the Charter of Rights and Freedoms. The key word being solely. The challenge being that the smell of cannabis will often not be the only factor which formed the constellation of facts that were relied on by the police to justify their search of a vehicle.
While there is no clear answer from the case law as of yet, it would seem reasonable that in order for the CCA to be constitutionally compliant with the Charter of Rights and Freedoms, the search of the vehicle would need to be confined to areas that the legislation was concerned with and justified the search in the first place, namely, areas where cannabis “readily available”. Put more plainly, the observation of “open cannabis” (for example, in the centre console) cannot reasonably be turned into a “jackpot”, allowing the police to rummage through an entire vehicle, from front to back.
However, even on such an interpretation of the Cannabis Control Act, the police search power is still broad. For example, the police would be authorized to search the entire front seat area of the vehicle (glove compartment, centre console), as these are areas that would be plainly “readily accessible” to the driver.
On the other hand, areas not “readily accessible” to the driver or any passenger (such as the trunk) would, at least in most cases, be off limits. Absent specific information which would justify the belief cannabis was located inside, the extension of a search to the trunk, would be open to a challenge that the search was unlawful, in violation of Charter of Rights and Freedoms.
Between these two ends, the extent of the search power would depend on the facts of each case. For example, would a bag located on the back seat be “readily accessible”? If there was just a driver present at the time of the police stop, maybe. If there were rear passengers in the vehicle, probably.
There was some question as to the interpretation of the term “fasten closed” under s.12 of the Cannabis Control Act. That is, whether cannabis had to be transported sealed, in its original packaging, or whether a closed bag (such as a backpack) or container (such as tupperware) was sufficient’?.
That question was answered by the Ontario Court of Appeal in R. v. Guerrier, 2024 ONCA 838. In Guerrier, the issue was whether a zipped gym bag was “fastened closed. The court concluded “fasten closed” requires the baggage to be something more than being in a closed gym bag, which “can be opened effortlessly by the passenger seated next to it by pulling a zipper”. The Court ruled that for cannabis to be lawfully transported, the container “must be closed in a manner that results in it being not readily available”. Consequently the zipped bag (which could obviously be opened easily) was found not to be “fastened closed” and, as a result, was searched lawfully by the police.
Accordingly, the law, at least in Ontario, is that once grounds exist to believe that cannabis is being transported unlawfully, the police are authorized to search any bags that are readily accessible to the driver or passenger, even those zipped closed, such as satchels and backpacks.
Yes. According to section 12 of Cannabis Control Act, if cannabis is being transported unlawfully, the police may enter and search the vehicle or “any person found in it.”
How this provision will be interpreted by the courts remains unanswered. For example, what is the scope of the search authorized by the CCA? In other words, how far can the police go in the search of a passenger. Is the search limited to a “pat down” search, or are the police entitled to pursue a more intrusive search by, for example, emptying a passenger’s pockets in the pursuit of cannabis? If it is the latter, the scope of the search would be more expansive than what the police would be authorized to undertake when investigating an individual for a criminal offence (referred to as an “investigative detention” which prohibits the search for evidence), a result that would be highly unsatisfactory.
Moreover, if the purpose of the CCA’s restrictions on transporting cannabis in a vehicle are directed at public safety and ensuring that a driver does not have easy access to intoxicants, it is questionable how the search of a passenger further these aims. Put simply, how does searching a passenger’s person (such as their pockets) – where a high expectation of privacy exists – reasonably assist with ensuring that the driver of a vehicle does not have access to cannabis? As a result, this provision may be open to an argument of being contrary to the Charter of Rights and Freedoms and, as a result, unconstitutional.
Yes. According to the Cannabis Control Act, cannabis contained in its original, unopened packaging can be lawfully transported. For example, if you are driving home from the dispensary, that just purchased cannabis container or bag can be placed anywhere within your vehicle, including the cabin.
In any other situation, cannabis being transported within a motor vehicle must be contained in a bag that is fastened closed and not readily available to anyone inside the vehicle. As a result, if you plan on driving with any type of “open” cannabis (whether in an opened dispensary bag, a zip-lock or even a cannabis cigarette), place it in a bag and place that bag in the trunk!
If you or a family member was subject to a cannabis investigation or search, and wish to discuss your experience further, contact Fedorowicz Law for a free consultation.
Stay informed about your rights and responsibilities under the Cannabis Control Act. If you’re dealing with legal challenges such as cannabis offences or driving under the influence, or need assistance with a bail hearing, contact the experienced criminal lawyers of Fedorowicz Law today for legal advice. Richard Fedorowicz has over 20 years of experience in criminal defence and a proven track record of success. He will fully assess any elements of a criminal case that could help the most effective defence for each of his Greater Toronto Area clients.
Call Fedorowicz Law today at 249-266-4222 or fill out our convenient online form to learn how we can help you with your criminal defence in Toronto!