Since there have been several cases now of people ticketed for having cannabis in a vehicle, and since I have now received several inquiries from clients charged with these provincial offences, I thought it would be prudent to write a short blog post outlining your right to transport cannabis in your vehicle.
Cannabis is not permitted to be transported in vehicles that are driven by minors. This means anyone under the age of 19, for the purposes of the Cannabis Control and Licensing Act in British Columbia. However, the ban does not apply if the cannabis is limited to four or fewer plans that are not budding or flowering, or if the cannabis is not readily accessible to the driver or passengers, or if the cannabis is still in its unopened federal producer packaging.
But wait. Is this not the exact same law for adults? In fact, it is.
Section 81(1) of the Cannabis Control and Licensing Act indicates that an adult must not operate a vehicle if there is cannabis in the vehicle, but if the cannabis is limited to four or fewer plants that are not budding or flowering, or if the cannabis is not readily accessible to the driver or passengers, or if the cannabis is still in its unopened federal producer packaging, then the section does not apply.
Effectively, this means that anyone can operate a vehicle that contains cannabis, but under those conditions.
To help people avoid tickets for cannabis in a vehicle, I wanted to explain in more detail what that means.
First, if you have cannabis in the vehicle that is in its unopened packaging from a federal producer, you are permitted to transport it. There are no restrictions on where it can be in the vehicle in those circumstances, though it is probably best to keep it out of view of the police, passersby, and away from where minors can access it.
Second, if you have opened cannabis packages, you are still permitted to transport it. There is a common misconception that only unopened cannabis may be transported in a vehicle. But this would make it very difficult for medical users, people who only consume small amounts, people bringing cannabis to parties or social events, and others to comply with the law.
So the law allows people to transport opened cannabis, just so long as it is not readily accessible to the driver or the passengers.
The term readily accessible has yet to be litigated. However, you can expect that if it is lying loose or open in the vehicle, and in plain sight, it will violate the provision. Similarly, having it anywhere within reach of the driver’s compartment is likely to be found to violate the law.
Your safest option when transporting unopened cannabis in a vehicle is to lock it in the glove box, secure it in the trunk, or store it in a purse or bag in the back seat, provided there are no rear passengers. This would not be considered readily accessible to the driver or passengers.
Since being in possession of fresh cannabis is now no longer an offence, provided the quantity does not exceed 30 grams, police will likely have difficulty searching a vehicle based on the smell of cannabis alone. Keeping your opened cannabis products out of sight will also avoid the likelihood that you will be ticketed for an offence of having cannabis in the vehicle.
You are also permitted to transport cannabis plants. However, only those plants that are not budding or flowering are permitted.
Some people have said that the question of “what is cannabis” is still open to be litigated. I disagree.
The definition of cannabis in the Cannabis Control and Licensing Act in BC is the same as the definition in the federal Cannabis Act. It refers to a cannabis plant, or any part of a cannabis plant, or any substance or mixture of substances that contains or has on it any part of a cannabis plant. Seems pretty clear: if it comes from the plant it is cannabis.
There are some exceptions. They include non-viable seed of a cannabis plant; a mature stalk, without any leaf, flower, seed or branch, of such a plant; fibre derived from a stalk; or the root or any part of the root of such a plant. So if there is cannabis residue in a vehicle, the police will have to prove that the residue was derived from a part of the plant that included leaf, flower, seed, or branch.
That’s unlikely to happen. Any ticket for cannabis residue, without more, is doomed to fail as the definition of cannabis cannot be proven.
There is also quite a bit of guidance that comes from the courts in relation to cannabis charges. Because these are prosecuted as violation tickets and provincial offences, the burden is on the Crown to prove the offence beyond a reasonable doubt. This will require the officer to prove that the plant or plant-like substance found in a vehicle was cannabis. In order to do that, some testing will be required.
Frequently, open liquor tickets fail for the failure of police to prove the liquid in the container was actually liquor and not some other liquid. The police simply do not test it. So too will cannabis-related tickets. And if testing is done, then disclosure will be required in advance of trial, and the door remains open for challenges to the science behind the testing to determine whether something is cannabis.
It is unlikely that the police will call a botanist at each trial to prove something was cannabis.
Then again, there are also drug possession and trafficking cases that have found the absence of laboratory confirmation that something is a drug does not necessarily mean the case is fatally flawed. If there is an overwhelming inference that something is cannabis, the court can rely on that inference in upholding a violation ticket.
While the Cannabis Control and Licensing Act does authorize warrantless searches (an issue I intend to revisit in the future) there are no specific provisions related to cannabis in vehicles. The closest there is in the legislation is that an officer is permitted to seize cannabis that is in plain view. For this reason, it is prudent to keep any cannabis out of the view of police.
At common law, the police used to be able to have carte blanche to search vehicles based on the odour of fresh marijuana. That odour alone has been found in numerous court decisions to justify a warrantless arrest for possession, and a warrantless search of a vehicle.
However, that was based on the fact that possession of cannabis was a criminal offence. It no longer is a criminal offence, provided the amount possessed is under 30 grams. Police powers to search vehicles based on the smell of marijuana alone, and the knowledge that possession is a criminal offence are now limited by this. In my view, there would have to be something more than the odour to justify a search of a vehicle if a police officer smells cannabis.
In that regard, police may rely on other “clues” to suggest the provisions of the Cannabis Act in relation to personal possession limits are being violated. Having multiple bags, Rubbermaid bins, or containers may elevate this to grounds to arrest and search the vehicle incident to that arrest. Again, this is why keeping lawfully possessed cannabis in a vehicle in the trunk or glove box is likely a good idea.
If you do get a ticket for possession of cannabis in a vehicle, it is best to dispute the ticket. Cannabis offences, even driving-related ones, can cause problems at the border. Despite the fact that cannabis is now legal in Canada, it is not in the United States. Violating Canadian law related to cannabis possession can be grounds for inadmissibility in to the United States. For this reason, a simple cannabis-in-a-vehicle ticket can have long lasting consequences.
Dispute your ticket, or call me for a consultation and I will be happy to discuss possible defences with you.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.