The Canadian federal government is currently preparing to legalize individual possession of Marijuana for recreational purposes as of July 1, 2018. Various provincial governments are also working to set up rules and regulations, and to provide for a system of distribution once individual marijuana possession is legalized.
At this time, however, individual possession of marijuana/cannabis is still illegal under the Criminal Code, even for small amounts. Police officers can still arrest persons for possession of marijuana and can still file complaints. Crown prosecutors can still decide to prosecute an accused found in possession of marijuana. Judges can still find people guilty and issue a sentence that will result in an accused having a criminal record.
At present, someone guilty of marijuana possession and who ends up with a criminal record must wait a minimum of five (5) years from the end of the sentence, whether probation or the paying of a fine, to request a criminal record suspension.
It may be possible, however, if one is found guilty or one pleads guilty to marijuana possession, to nevertheless avoid a conviction and a criminal record.
First-time offenders, who are prosecuted for small amounts of cannabis resin or cannabis(marijuana) are liable to no more than a $1,000.00 fine or to a maximum of six (6) months in prison or to both. However, these maximums do not usually apply to first-time offenders who possessed small amounts for personal use. The appropriate fine is usually significantly less than $1,000.00 and there is usually no prison time involved. If anything, a period of probation may be added to the fine.
Nevertheless, if a sentence of a fine and/or probation is issued by the judge, it still means that the accused has a criminal record. The convicted accused may have trouble, due to a criminal record, travelling to the United States or other countries. A criminal record may also have an impact on the ability to get certain jobs or enter certain professions.
It is for that reason that it is useful and advantageous, if one is found guilty of or pleads guilty to marijuana possession, that a discharge is available. Rather than convicting the accused who has been found guilty, a judge can enter a discharge, either absolute or conditional, which avoids the accused having a criminal record.
Discharges can only be issued on the basis of satisfying two conditions. The first condition is that it is not contrary to the public interest. The second condition is that the discharge is in the best interest of the accused. Generally speaking, this has been interpreted as meaning that discharges should be available when a criminal record might impair the accused’s ability to get or keep a certain kind of employment or it might prevent the accused from entering or staying in a particular kind of career. It has also been interpreted as meaning that a discharge is available if the accused must travel in the course of his employment or career and a conviction might impair his ability to travel. These are not the only reasons that the law allows to be considered for the purposes of discharges, but they are the most frequent.
In summary, no one should be under the mistaken impression that it is currently open season to use or possess marijuana for personal use. Until such time as the law has actually changed, it remains illegal. Police may arrest and lay complaints. Prosecuting attorneys may prosecute and judges may convict. A discharge is not an absolute or automatic right but rather something that must be requested from a judge who must be satisfied that the legal requirements have been met and that a discharge should be granted. Currently, possessing marijuana or cannabis for personal use could still end up in a criminal record for the possessor and difficulties in the future with either travel and/or employment or career options.
Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats Inc.