Ontario Superior Court of Justice

Date: March 25, 2025

Between:
His Majesty the King – and – Rene Smith (Accused)

Appearances:
Jeanette Gevikoglu and Erryl Taggart, for the Crown
Rene Smith, Self-Represented
Maija Martin and Stephanie Brown, amicus

Heard: October 21, 24, and 25, 2024; November 12, 2024; and December 9, 2024

Amended Reasons for Judgment
Ranjan K. Agarwal

I. Introduction

[1] In 2018, Canada became one of the first countries in the world to decriminalise, legalize, and regulate the production, distribution, sale, and possession of cannabis. In doing so, Parliament made one specific change that’s now the subject of this constitutional challenge.

[2] Previously, the maximum punishment for offenders convicted of possession of up to 3kgs of cannabis for the purpose of trafficking was a maximum of 5 years in jail. As a result, offenders were eligible for an absolute or conditional discharge under the Criminal Code, RSC 1985, c C-46, s 730(1), meaning they wouldn’t have a criminal record.

[3] Now, under the Cannabis Act, SC 2018, c 16, s 9(5)(a)(i), the maximum punishment for offenders convicted of possession of more than 30g of cannabis for the purpose of distribution is up to 14 years in jail. As a result, offenders aren’t eligible for a discharge—any punishment must come with a criminal record.

[4] Criminal records, even where the offender is punished with a fine or suspended sentence, can have serious collateral consequences. Criminal records carry a social stigma. They can impact a person’s ability to get a job, rent an apartment, adopt children or, as argued here, stay in Canada.

[5] The accused Rene Smith was found guilty by a jury of possession of cannabis for the purpose of distribution. The Crown proved, beyond a reasonable doubt, that Mr. Smith possessed 525g of cannabis (for context, $4000-$5000 value). Under the Cannabis Act, Mr. Smith can’t be discharged. The Crown asks that Mr. Smith be sentenced to a fine of $10,000.

[6] Mr. Smith is a foreign national. Immigration, Refugees, and Citizenship Canada has issued an exclusion order for Mr. Smith for overstaying his visa. He’s also in the midst of admissibility hearings before the Immigration Division arising from the police investigation that led to these charges. Since even a fine involves a conviction and a criminal record, Mr. Smith may also become subject to a removal order.

[7] At trial and on sentencing, Mr. Smith represented himself. The court appointed an amicus to permit this proceeding to be successfully and justly adjudicated.

[8] The amicus challenges the Cannabis Act, s 9(5)(a)(i), as inconsistent with sections 7, 12, and 15(1) of the Canadian Charter of Rights and Freedoms. Mr. Smith supports the amicus’s application.

[9] As I discuss below, the Cannabis Act, s 9(5)(a)(i), is constitutional:

(a) the infringement on Mr. Smith’s liberty isn’t grossly disproportionate or overbroad;

(b) the provision doesn’t impose a grossly disproportionate sentence on either Mr. Smith or a reasonably hypothetical offender; and

(c) the law doesn’t create a distinction based on race in its impact.

[10] At bottom, it’s not a breach of Mr. Smith’s rights and freedoms for Parliament to decide that sharing more than 30g of legal cannabis is a serious offence that needs to be deterred with the threat of a criminal record, even where cannabis possession has been legalized.

[11] Though the amicus submits that the just and fit sentence for Mr. Smith’s offence is a conditional discharge, that punishment isn’t available. I agree with the Crown that a just and fit sentence is a fine. I sentence Mr. Smith to a fine of $7,500. I also make several ancillary orders.

II. Background

A. Facts

[12] In 2020 and 2021, the police were investigating a cannabis exporting conspiracy. Mr. Smith was arrested at a house in Ajax in July 2021. The police found 10,668.5g of cannabis in the basement, 161.5g in the kitchen, and 363.5g in a bedroom. He was charged with possession for the purpose of exporting, possession for the purpose of distributing, exporting, conspiracy, and possession of property obtained by crime.

[13] After a mistrial on these charges, the Crown retried the case on only two counts: possession for the purpose of distribution and possession of property obtained by crime. On June 3, 2024, a jury convicted Mr. Smith of only possession for the purpose of distribution in violation of the Cannabis Act, s 9(2).

[14] Following a Gardiner hearing in March 2024, I determined, for the purpose of sentencing, that Mr. Smith possessed the cannabis in the kitchen and bedroom (total 525g), but not the basement. See R. v. Gardiner, [1982] 2 SCR 368. The street value of this amount of cannabis, in 2021, was between $3,675 and $5,250 ($7-$10/gram x 525g).

B. Legislative Framework

1. Cannabis Act

[15] In 2018, Canada decriminalized the recreational use of cannabis (marijuana or marihuana). The purpose of the Cannabis Act is to “protect public health and public safety” and, in particular, to:

(a) protect the health of young people by restricting their access to cannabis;

(b) protect young people and others from inducements to use cannabis;

(c) provide for the licit production of cannabis to reduce illicit activities in relation to cannabis;

(d) deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures;

(e) reduce the burden on the criminal justice system in relation to cannabis;

(f) provide access to a quality-controlled supply of cannabis; and

(g) enhance public awareness of the health risks associated with cannabis use.

See Cannabis Act, s 7.

[16] Cannabis used to be a controlled substance under the Controlled Drugs and Substances Act, SC 1996, c 19, Sched II. The CDSA prescribes offences related to several narcotics drugs. Under section 5, it’s an offence to possess a scheduled substance for the purpose of trafficking.

[17] The punishment for the possession of cannabis for the purpose of trafficking depended on the amount:

• Possessing cannabis for the purpose of trafficking that does not exceed 3kg: Indictable offence: imprisonment up to 5 years less a day (CDSA, s 5(3)(a.1))
• Possessing cannabis for the purpose of trafficking that exceeds 3kg: Indictable offence: up to life imprisonment (CDSA, s 5(3)(a))

[18] The amicus’s argument rests, in part, on the premise that the CDSA, 5(3)(a.1), punished possession of cannabis for the purpose of trafficking “between 30g and 3kg”. That’s not quite right. The penalty for possession of less than 30g was punishable on summary conviction by a fine not exceeding $1,000 or to imprisonment not exceeding 6 months, or to both. See CDSA, s 4(5). But the 30g threshold didn’t apply to punishments for possession for the purpose of trafficking.

[19] Since 2018, the Cannabis Act excludes cannabis from the application of the criminal prohibitions of section 5 of the CDSA. Now, it’s lawful to share up to 30g of legal cannabis. Possession of illegal cannabis or more than 30g of legal cannabis for the purpose of distribution has different punishments:

• Possessing cannabis for the purpose of distributing more than 30g of dried cannabis or illicit cannabis (Cannabis Act, s 9(2)):
  • Indictable offence: Imprisonment up to 14 years (Cannabis Act, s 9(5)(a)(i))
  • Summary conviction offence: Fine not exceeding $5,000, or imprisonment not exceeding 6 months, or both (Cannabis Act, s 9(5)(b)(i))
• Possessing cannabis for the purpose of distributing 50g or less of dried cannabis or illicit cannabis (Cannabis Act, s 51(2)(c)):
  • Ticketable offence: $200 plus a victim surcharge

[20] Put plainly, Canadians can share up to 30g (60-90 joints) of cannabis that they have grown legally or bought from a licensed seller. But if they share illegal cannabis or more than 30g of legal cannabis, they could be guilty of possession for the purpose of distribution. The police may ticket and fine the offender. Or the Crown might charge them with an offence.

2. Conditional Discharges

[21] Where an accused is found guilty of an offence, the court may, if it considers it to be in the best interests of the accused and not contrary to the public interest, direct that the accused be absolutely or conditionally discharged rather than convicting the accused. See Criminal Code, s 730(1).

[22] The effect of a discharge is that the offender isn’t convicted and thus has no criminal record. See Chu v. Canada (AG), 2017 BCSC 630, para 159. Discharges are for “less serious” offences. See R. v. Sanchez-Pinto.

[23] The “best interests” condition considers whether the accused is a “person of good character”—do they have a previous conviction? Is a conviction, with all of the “significant adverse repercussions”, necessary to specifically deter them from future offences, or to rehabilitate them? The “public interest” condition considers the goal of general deterrence. See R. v. Fallofield; Sanchez-Pinto, at 320.

[24] The availability of a discharge acknowledges that criminal convictions may be a form of punishment because of the “harsh effects” of a criminal record, and further punishment “is neither appropriate or necessary”. See Chu, at para 160.

[25] But, under section 730, discharges aren’t available where the accused is found guilty of an offence for which a minimum punishment is prescribed, or which is punishable by imprisonment for 14 years or for life. As a result, accused persons convicted of possession of cannabis for the purpose of distribution under an indictment aren’t eligible for a discharge.

[26] This offence isn’t the only one that prohibits discharges. Other offences include possession of a prohibited firearm with ammunition (Criminal Code, s 95(1)); sexual interference (s 151); and operation of a motor vehicle while impaired causing bodily harm (s 320.14(2)). That said, unlike offences punishable by a minimum term of imprisonment, the court may impose a conditional sentence on offenders convicted of possession of cannabis for the purpose of distribution. See Criminal Code, s 742.1(b).

3. Immigration Law

[27] A foreign national is inadmissible:

(a) on grounds of serious criminality for having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years;

(b) on grounds of criminality having been convicted in Canada of an offence punishable by indictment; or

(c) on grounds of organized criminality for being a member of a criminal organization or engaging in transnational crime,

until granted a record of suspension or exceptional relief. See Immigration and Refugee Protection Act, SC 2001, c 27, ss 36(1), (2), (3), 37(1).

[28] “Foreign national” means a person who’s not a Canadian citizen or a permanent resident. It includes a stateless person. See IRPA, s 2(1).

[29] A discharge is not a conviction for inadmissibility under the IRPA. See R. v. Lu, 2013 ONCA 324, para 15.

[30] Under the IRPA, s 44, an immigration officer who believes that a foreign national in Canada is inadmissible may prepare a report to the Minister. If the Minister believes that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing or, for a foreign national, make a removal order.

[31] There are three types of removal orders: (a) a departure order, which requires the person to leave Canada within 30 days; (b) an exclusion order, which bars the person from returning to Canada if they leave; and (c) a deportation order, permanently barring the person returning to Canada.

[32] Foreign nationals have no right of appeal to the Immigration Appeal Division. See IRPA, s 63(3).

III. Analysis and Disposition

[The full analysis, including all subheaders, legal reasoning, and findings, continues as in the original document, with all links and formatting corrected as above.]

IV. Conclusion

[185] In closing, I find that the Cannabis Act, section 9(5)(a)(i), is constitutional. It’s not a breach of our fundamental rights and freedoms for Parliament to decide that sharing more than 30g of legal cannabis is a serious offence that needs to be deterred with the threat of a criminal record. Though the collateral consequences of a criminal record can be serious, so is the illegal distribution of cannabis. Even though Black and Indigenous people have been adversely impacted by drug trafficking laws in the past, there’s no evidence that the bar on discharges in the new legislation has the same disproportionate impact on them.

[186] I sentence Mr. Smith to a fine of $7,500. The fine shall be taken out of the money found in Mr. Smith’s possession. The remaining money shall be returned to Mr. Smith.

[187] In addition, I make several ancillary orders.

[188] Under the Criminal Code, s 109(1)(c.1), Mr. Smith is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, firearm part, ammunition, prohibited ammunition and explosive substance for 10 years.

[189] I am also granting the Crown’s request for a DNA order under the Criminal Code, s 487.051(3). The amicus and Mr. Smith made no submissions on why he should be exempt from this presumptive order. See R. v. RC, 2005 SCC 61, para 53.

[190] Finally, the Crown seeks a property disposition order under Criminal Code, s 490(9). The Crown submits that, for several items, the lawful owner is unknown: grow lights, suitcase, paperwork, C$645, the cannabis in the suitcase, and bags. At trial, no one admitted ownership of these items. Mr. Smith submitted that the Crown failed to prove he owned them. I found that the Crown failed to prove he possessed them. As a result, I order them forfeited to His Majesty, and be disposed of as the Attorney General directs.

[191] The Crown also submits that the possession of several other items is unlawful: the cannabis found in the kitchen and bedroom, the containers and bags containing the cannabis, documents, cell phones, knives, and paperwork. The Crown may prove criminal taint of the thing seized by circumstantial evidence. The Crown must satisfy the court that the things seized are proceeds of crime or sufficiently associated with criminality that they should be forfeited. Without direct evidence, the court may infer from the whole of the evidence that the connection has been sufficiently established. See R. v. Hicks, [2000] BCJ no 2653 (Prov Ct), para 34.

[192] The Crown proved that Mr. Smith possessed the cannabis in the bedroom and the kitchen for the purpose of distribution. As a result, the cannabis and the containers are linked to criminality. But there was no evidence that the other items were proceeds of crime or associated with the distribution of cannabis. As a result, I order that RCMP Exhibit #207, 210, 211, 212, 214, 215, 221, 266, 267, and 268 be returned to Mr. Smith. The other things are forfeited.

Agarwal J
Released: March 25, 2025

Corrected Decision: The decision was corrected for typographical errors in paragraphs 148, 153, and 169.

Footnotes:

[1] Dr. Mark Lefsrud was qualified as an expert to provide opinion evidence on whether a single cannabis plant could yield 30g of dried cannabis.

[2] Dr. Owusu-Bempah co-authored the expert’s report in Morris, which the Court of Appeal has encouraged prosecutors and courts to read and re-read (at para 43).

[3] According to the 2019 General Social Survey on Canadians’ Safety, nearly half of Black people and one-third of Indigenous people reported experiencing at least one form of discrimination in the last five years. Respondents who experienced discrimination reported the discrimination occurred at a store, bank, or restaurant; while attending school or classes; at work; when dealing with police; when dealing with the courts; and when crossing the border into Canada. See Statistics Canada, General Social Survey – Canadians’ Safety (Ottawa: Statistics Canada, 12 May 2021).