Jeremy, 17, and his friends are excited to go to a big house party. Jeremy’s parents have even lent Jeremy their car for the evening on the condition that he not consume any drugs or alcohol. Along the way to the party, Jeremy stops to pick up his friend Jonathan. As Jonathan approaches the car, he pulls out a few small bags of weed and says to Jeremy “we are going to get sooo stoned tonight!” Jeremy, usually a good boy, decides to take a small bag and put it in his pocket. He doesn’t plan on smoking it but doesn’t want to look like a loser in front of his friends. Jeremy lets Jonathan smoke some weed en route to the party.
The two boys are stopped by the police for driving with a broken taillight. When the police officer approaches the car, she smells burnt marijuana and demands the boys exit the car. After a “pat down” search of Jonathan’s clothes, the officer discovers the bag of weed in one of Jonathan’s pockets.
Can Jeremy be found guilty of possession even though he did not intend to use the drugs? Did the officer have the right to search inside Jeremy and Jonathan’s pockets?
Answer: Jeremy may be found guilty of possession even without the intention of using the weed. He had the drugs in his pocket and thus they were in his possession. (See s. 4(3)(b) of the Criminal Code.)
Answer: the legitimacy of the search of Jonathan’s pocket depends on whether or not the officer had “reasonable grounds” to suspect Jonathan was committing an offence. (See s.495 of the Criminal Code.) Odour may form the basis of a reasonable suspicion. (To read a court case about this click here.)
MORE ON MARIJUANA AND THE LAW
Marijuana is the most commonly used illicit drug in Canada. Over 10 million Canadians are estimated to have used marijuana at least once in their lives. Although some advocacy groups continue to push for its decriminalization, marijuana and its derivatives remain illegal under the Controlled Drugs and Substances Act (CDSA).
There are legal consequences of possessing and distributing marijuana. Below is as a description of the charges, and examples of punishable activity, as well as some info on your rights during police searches.
CHARGE: Possession of marijuana
In the CDSA the definition of drug possession is borrowed from section 4(3) of the Criminal Code of Canada. “Possess” means to have the drug on your person, but you may also be charged with possession if someone else is holding the drug for you or if you have it stashed someplace for future use.
CHARGE: Trafficking of marijuana
The definition of “trafficking” under the CDSA is very broad. To traffic marijuana is “to sell, administer, give, transfer, transport, send or deliver the substance…” or to sell an authorization to purchase marijuana. Selling does not require payment in exchange for the drug. Any kind of transporting/delivering, offer of sale and distribution –even if not in exchange for anything –can fall under trafficking. Consider a situation where a group of friends get together and smoke Marijuana that one person “picked up”. The individual who shared the drug has ‘trafficked’ regardless whether he asked his friends to pay or not.
You need not actually commit the crime of trafficking in order to be punished for more than mere possession. Possession for the purposes of trafficking is often punished just as heavily as actual trafficking.
Everyone has a right not to be “unreasonably” searched, but a police officer may search you with or without a warrant, provided there are reasonable grounds to believe you are in possession of a controlled substance. Where a police officer conducts a search without a warrant, s/he must justify the search afterwards in order to use the evidence obtained.
There must be some factual basis for suspicion in order to justify the search. This might be a tip from an informant or something the police observed. Your reputation and criminal record are also admissible pieces of information the police may use to establish reasonable suspicion.
You can legally refuse consent to be searched, regardless to how many requests the police officers make to search you or enter your home or vehicle. However, the police may refuse to allow you entry into a restricted area unless you consent to a search.
Giving them voluntary consent makes police searches automatically legal.
In public, police can request you to stop and engage you in a conversation . Police can legally use false pretenses (lie), use intimidation techniques, and steadily attempt to persuade you into giving them permission for a search. But until they formally arrest you, you have a right to refuse consent for a search and walk away from them. It helps to remain respectful, to identify yourself, and avoid making quick movements (especially towards the pockets!). Avoiding having Marijuana in public, of course, helps.
If an arrest is made, remember that you have the right to remain silent and insist to speak with a lawyer.
For more info on your rights during a police stop or search, check out JFCY’s resources here: http://www.jfcy.org/ycj-police.html
This post was written by JFCY PLE Team Volunteer Shawn Malik and JFCY summer law student Robin McNamara. Legal info was reviewed by JFCY.