Cannabis Control Act Search
The Cannabis Control Act (CCA) is an Ontario statute. It was enacted to establish prohibitions relating to the sale, distribution, purchase, possession, cultivation, propagation and harvesting of cannabis. It was enacted to protect public health and safety, protect young people, and to ensure sale in compliance with the Ontario Cannabis Retail Corporation Act, 2017, and the Cannabis License Act, 2018.The CCA also seeks to deter illicit activities in relation to cannabis through appropriate enforcement and sanctions, and to provide for approved youth education or prevention programs, including culturally appropriate programs for Indigenous youth, as an alternative to enforcement and sanctions.
Section 12 of the CCA prohibits the care and control of any vehicle that contains cannabis, except where the cannabis is in its original packaging unopened or packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. The CCA allows police officers who have reasonable grounds to believe that cannabis is contained in a vehicle (outside of those exceptions) to enter and search the vehicle and search any person found in it. Police are allowed conduct such investigations without a warrant.
The CCA does not assert that a CCA search ought to occur forthwith or otherwise in priority to police officers' responsibilities in criminal impaired driving case. There is litigation opportunity here. If police pursue a CCA search in the midst of a criminal impaired driving investigation, what happens with delay in the fulfillment of the police duty to inform the accused person of their right to counsel, or administer a breath test?
The particular facts of the case could make a difference, including the timing of police observations of impairment compared to police observations that support a CCA search.
In the case of R v Parmar 2020 ONCJ 373 (CanLII), an eleven-minute delay before the accused was informed of his Charter section 10(b) right was found to be a violation where the delay was due in part to the prioritization of administrative tasks. Parmar did not deal directly with whether a CCA was a permissible delay. In Parmar, the officer’s prioritizing of administrative tasks over informing the accused person of his right to counsel was an error.
[15] I am disturbed that an experienced officer would have suffered such a lapse and have no hesitation in finding that the eleven minutes from Mr. Parmar's arrest to the reading of his right to counsel constitute a violation of s. 10(b).
[16] While some of that delay can be attributed to the valid safety concerns of moving Mr. Parmar to the curb to conduct a pat-down search, PC Huycke's erred in prioritizing benign administrative tasks such as directing an inventory of the vehicle and entering biographical data into the police report, over advising Mr. Parmar of his right to counsel.
[17] I am mindful of PC Huycke's evidence that every traffic strop is unique, that the situations are often dynamic, and that he was making his best efforts. These explanations do not excuse the violation though they have some relevance to the 24(2) exclusionary analysis that I must now turn to.
Such a violation would have some relevance to the exclusionary analysis under Charter section 24 (2) - the Grant analysis.
Adel Afzal
Barrister and Solicitor
August 24, 2024
