Dear Herb: What are the penalties for underage cannabis possession in Canada?

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This article was published 21/08/2019 (2589 days ago), so information in it may no longer be current.

Dear Herb: What would happen if a 13-year-old got caught with two grams of cannabis? — Possession While Pubescent

Dear Possession: Thanks for writing in with this excellent question. Let’s begin by reviewing what federal law says about youth cannabis possession.

Under the federal Cannabis Act, the prohibition on underage cannabis possession applies to youth aged 12 through 17. Kids under the age of 12 can’t be charged with a crime in Canada.

The Cannabis Act specifically prohibits possession of more than five grams of dried cannabis, or the legal equivalent, by a person in that 12 to 17 age bracket. There’s no criminal penalty for possession of less than five grams of cannabis by a person under the age of 18, although there are provincial sanctions for youth who possess any amount of cannabis (more on those later).

If a youth aged 12 to 17 is caught with more than five grams of cannabis and prosecuted under federal criminal law, they’d be sentenced under the federal Youth Criminal Justice Act. It’s hard to say exactly what a cannabis possession sentence might look like under that law, according to Mary Birdsell, executive director of Justice for Children and Youth, a non-profit legal clinic that serves children and youth in Ontario. Since legalization last October, she said, her legal clinic has not dealt with a single criminal prosecution of youth for cannabis possession.

Birdsell explained that Canada’s youth criminal justice system leaves police and crown prosecutors plenty of discretion about whether or not to move forward with criminal charges against youth. Charges could be withdrawn or stayed in favour of a warning, or in favour of participation in some kind of extrajudicial diversion program.

But if a young Canadian did get to the point where they were being sentenced by a judge for simple cannabis possession under the Youth Criminal Justice Act, Birdsell said, a custodial sentence (i.e. jail time) would be unlikely.

“The only way in which a non-violent offence might open the doorway to custody would be on the basis of repeated violations,” she said.

“Certainly if I were the lawyer making a sentencing argument, I would be arguing for a very, very low-level sentence like a reprimand or an absolute discharge. Certainly it’s the case that there are courts in jurisdictions who hand out probationary sentences more frequently, so that would be a possibility.”

As I mentioned earlier, there’s no federal criminal offence for possession of less than five grams of cannabis by a person under the age of 18. However, the provinces and territories have their own laws about youth cannabis possession, and those laws cover possession of any amount of cannabis by a youth, including possession of less than five grams.

Those provincial penalties for youth cannabis possession take the form of fines. In Quebec, for example, the provincial Cannabis Regulation Act imposes a $100 fine on youth found in possession of less than five grams of cannabis. Nova Scotia youth caught with any cannabis can have the cannabis seized and be fined up to $150, and Manitoba provincial law allows a $672 ticket for youth found in possession of cannabis.

Note that most provinces and territories have also raised the minimum age for cannabis possession to 19. Only Alberta and Quebec permit cannabis possession by 18-year-olds, although Quebec’s government is trying to pass a bill that would raise the minimum age for cannabis possession to 21.

To sum up: After cannabis legalization, Canadian youth under the age of 18 aren’t subject to criminal penalties for possessing five grams of dried cannabis or less, but they could face provincial fines. Youth caught with more than five grams of dried cannabis might face prosecution under the federal Youth Criminal Justice Act, which would be unlikely to result in jail time without some aggravating factors. So, a 13-year-old caught with just two grams of dried cannabis in Canada won’t face any criminal charges, but a provincial fine is possible.

Got a question about cannabis? Herb answers your questions about legal consumption and growing, the law, etiquette — you name it, he’ll look into it.

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