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Dear Herb: The cops took my weed. How do I get it back?

Police seized cannabis from this week's letter-writer. What to do?

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Dear Herb: How can I get my weed back from the police?

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Hey there, time traveller!
This article was published 13/02/2019 (1450 days ago), so information in it may no longer be current.

Dear Herb: How can I get my weed back from the police?

They took a little over 30 grams, and they said I can get it back from them before 60 days.

I ordered it from ganjaexpress.ca, and it was sent to me in Nunavut. I was not ticketed or charged. — I Want My Weed Back

Herb answers your questions about legal consumption and growing, the law, etiquette — you name it, he'll look into it.

Dear Want My Weed Back: Thanks for your question. Based on what you’ve told me, I have bad news for you: it’s probably not a good idea for you to try and get this specific weed back from the police.

The police told you that you can apply to get the cannabis back within 60 days, and they’re technically correct: this section of the Cannabis Act lays out the rules for how police officers have to treat seized cannabis. It says that within 60 days of the seizure of cannabis, a person may apply, in writing, to a justice for an order to return the cannabis. If the justice “is satisfied that the applicant is the owner or is entitled to possession of the cannabis,” they can order the police to return it.

Here’s the problem for you: the mail-order cannabis dispensary that sold you the cannabis is not a government-licensed cannabis retailer. Therefore, any weed you bought from them is considered “illicit cannabis” under the Cannabis Act and is illegal for you to possess.

I called up cannabis lawyer Jack Lloyd to learn more. He said he couldn’t give specific legal advice on your situation, but generally speaking, he explained that Canadians have no legal right to possess a substance that’s considered illegal under the law.

“If you’ve ordered it illegally, and possessed it illegally, and the police seize it, you have no mechanism to force them to return it to you,” said Lloyd.

“You don’t have an entrenched right to it. You would have to provide evidence that it’s (legal) cannabis, and if you’re unable to do that, and admitting to having knowledge and control of it, and admitting that it’s yours and you want it back, you expose yourself to a serious criminal charge.”

In other words, if you go to the authorities with a written statement that this illicit cannabis from ganjaexpress.ca belongs to you, you’ll be admitting to a crime (possession of illicit cannabis). That could give the police grounds to charge you with that crime, and you could wind up in big trouble. The penalties for possession of illicit cannabis can be quite serious.

Since you weren’t charged or even ticketed when the police seized your weed, it sounds like you’ve avoided any legal consequences up to this point. The only punishment you’ve suffered is the loss of your mail-order weed. That’s too bad, but it’s much better than a ticket, a fine or jail time. If you still want to try and get this cannabis back from the police, I would strongly advise you consult a lawyer first.

Even if the cannabis police seized from you was legal — that is, if it was ordered from a store authorized by Nunavut Liquor and Cannabis, if it was purchased from a licensed store in another province or territory, or if you grew it at home in accordance with the law — you still wouldn’t be allowed to possess more than 30 grams in a public place. If police seized more than 30 grams of legal cannabis from you, they’d only be obligated to return up to 30 grams of it.

What will happen to the illicit cannabis police seized from you?

According to the law, the police must wait 60 days to see if anyone makes an application for its return. If 60 days pass with no claims, the cannabis will be forfeited to the Crown and disposed of.

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.

First, please check this list of questions already answered by Herb. Then, email dearherb@theleafnews.com, or to submit anonymously, fill out the form below. Please include an email address if you’d like to be notified when Herb answers your question:  

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