QUESTION:
When one is caught with a couple of joints in a car, what does the law say about this, and how do the police respond on a day-to-day basis? At April's 4-20 event in Vancouver, every second person was smoking pot, and yet the police in the area were looking the other way.
Dear Sir:
The Controlled Drugs and Substances Act is clear on which actions constitute an offence.
Marijuana is a controlled substance, and possession of it is illegal according to Section 4(1) of the Act. An officer has the authority to arrest anyone he or she believes is in contravention.
Now I admit, that's an oversimplified and rather pithy answer; it's fair to say it's not always quite that straightforward. So let me break things down. For the situation you describe, things would happen in three phases.
First, an officer who encounters such a situation will have to decide what to do. I think we would all agree that for the officer to smile and say "carry on, sir, enjoy your joint," would be grossly irresponsible. This won't happen, I promise.
Under Section 495 of the Criminal Code, in very simple terms, an officer may arrest a person whom he or she believes on reasonable grounds has committed an offence. Canadian courts have defined reasonable grounds as "a set of facts or circumstances which would cause a person of ordinary and prudent judgement to believe beyond a mere suspicion."
Many court cases have analyzed police officers' actions in light of this definition, and some have been thrown out because the officer's beliefs did not appear to be based on reasonable grounds. This is why it is so important that officers exercise good judgement when making decisions. And so, the officer will decide based upon his or her beliefs, or grounds.
In the second phase, once he or she believes there are reasonable grounds that an offence has been committed, an officer may arrest and will conduct further investigation. Although there is no legal requirement to arrest, failing to do so will, in most cases, raise the risks of harm. This is why in most cases, when an officer has grounds to arrest, he or she will do so.
Now if, for example, a person is observed smoking a joint, then clearly the officer has reasonable grounds to believe the person is in possession of marijuana. The officer may arrest the person, search him for more drugs, and undertake any needed action to make sure he or she has gathered all the evidence needed to present the case before a judge.
In the third phase, the officer will present the case to the crown counsel, who will decide if it will go to court.
Although I can't speak for the crown prosecutor's office, in general terms, they make that decision based on two fundamental criteria: 1) There must be a substantial likelihood of conviction, and 2) the prosecution must be in the public interest.
In cases involving small amounts of marijuana, officers may seize the drugs and decide not to recommend charges, though any decision to do so is based on the individual officer's discretion and is not enshrined in any catch-all policy or law.
The bottom line on drug possession is that it is illegal.
Now, I've carried out this discussion based on a situation where a person is not driving a car. If the person is driving, then the answer is simple: It's no different from alcohol, and in addition to a criminal investigation for possession, you will face the possibility of an impaired driving charge.
Sgt. Peter DeVries North Vancouver RCMP
