|
Vice - Cannabis (2). R. v. Randall
In R. v. Randall (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, this where the defendant "was acquitted of various drug trafficking and weapons charges on the basis that the search of his vehicle and person was unreasonable and in violation of his Charter rights".
Here the court considers the CCA provisions regarding driving with cannabis available [CCA s.12(1-2)]:[1] Drivers operating motor vehicles under the influence of cannabis pose an unacceptable risk to public safety. Cannabis that is freely available in a motor vehicle correlates unacceptably with cannabis use in the vehicle. These are the judgments that underlie ss. 12(1)-(2) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”), which prohibit any person from driving a vehicle “while any cannabis is contained in the vehicle”, unless the cannabis is in an unopened, original package, or in a package that has been fastened closed or is otherwise inaccessible to any person in the vehicle.
[2] Section 12(3) of the CCA provides police officers with broad powers to enforce this provision. Where a police officer has reasonable grounds to believe that s. 12(1) has been infringed – that the vehicle is being operated with improperly stored cannabis – the officer may conduct a warrantless search of the vehicle and the persons occupying it. This appeal addresses whether the search that was conducted in this case infringed the respondent’s ss. 8 and 9 rights under the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure and arbitrary detention.
....
[14] Section 12 of the CCA provides:Transporting cannabis
12(1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. 1. Reasonable grounds under s. 12(3)
[15] The precondition for a search under s. 12(3) is that the police officer has reasonable grounds to believe that a person has care and control of a motor vehicle in which there is cannabis that is improperly stored. In considering whether an officer’s grounds to believe were objectively reasonable, a reviewing court must consider the totality of the relevant evidence: see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140, 52 C.C.C. (3d) 193, at p. 1143. As this court said in R. v. Asante, 2025 ONCA 387, at para. 42, “(s)o long as observations support guilty inferences when viewed in totality, they cannot be ignored or treated as innocuous because there may also be innocent explanations for those events”. The standard of reasonable grounds to believe does not require an exhaustive, confirmatory investigation or demand that an officer rule out every contrary possibility. This court has held that this standard exceeds reasonable suspicion, but “falls short of a balance of probabilities”: R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20. . R. v. Ali
In R. v. Ali (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, this brought against convictions for "multiple firearms offences".
Here the court considers the Charter s.8 ['search and seizure'] propriety of a CCA search:A. Did the vehicle search infringe section 8?
[12] Mr. Ali’s first ground of appeal renews his contention at trial that the police search of the rental car he was driving violated his s. 8 Charter rights. He argues (i) that the police did not have sufficient grounds to conduct a CCA search; and (ii) that PC Bartlett exceeded the bounds of a lawful CCA search when he looked in the space under the centre console.
[13] The relevant portions[1] of Section 12 of the CCA provide as follows:Transporting cannabis
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. [Emphasis added.] [14] The trial judge accepted the evidence that during the initial traffic stop PC Lamarre saw what he believed was an empty open cannabis package fall out of the glove compartment when Mr. Ali reached in to get the car rental agreement. She noted that although Mr. Ali initially disputed that this actually was a cannabis package, he ultimately agreed that it might have been. PC Lamarre also saw what he thought at the time was a cannabis roach in the car’s rear floor area, but the officers later determined that it was actually just a piece of cardboard.
[15] We agree with the trial judge’s conclusion that these observations gave the officers objectively reasonable grounds to believe that cannabis was being stored in the vehicle in contravention of s. 12(1) and (2) of the CCA. It could reasonably be inferred that some of the contents of the empty open cannabis package might be either in the vehicle or on Mr. Ali’s person. Indeed, when PC Bartlett conducted a pat-down search of Mr. Ali before searching the car, Mr. Ali removed a small baggie of cannabis from one of his pockets. This discovery reinforced the reasonableness of the officers’ grounds for believing that there might be more cannabis in the car. In these circumstances, even if PC Bartlett had examined the supposed roach on the rear floor and discovered that it was not actually cannabis, this would not have negated his grounds to continue the search.
[16] We also do not agree that PC Bartlett exceeded his lawful authority under the CCA when he pulled back the parking brake skirt and looked into the space under the centre console. The trial judge accepted PC Bartlett’s evidence that he could see that the leather skirt was “completely unattached from the centre console itself”, making the area underneath readily accessible to the driver. This took this space outside the exception in s. 12(2)(b), and brought it within the ambit of PC Bartlett’s search powers under s. 12(3).
[17] We accordingly see no basis for interfering with the trial judge’s finding that the police searches of Mr. Ali’s person and of the rental car were lawfully authorized under s. 12 of the CCA, and that his s. 8 Charter rights were accordingly not infringed. . R. v. Hosang
In R. v. Hosang (Ont CA, 2026) the Ontario Court of Appeal dismisses a criminal appeal, here brought against a "conviction for possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code".
The court considers provisions of the Cannabis Control Act, here in this search and seizure criminal case:[3] The police searched the vehicle and its two occupants pursuant to s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1(“CCA”). It permits the search of vehicles and persons in vehicles:A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle … and search any person found in it. ....
B. SECTION 8: Request for I.D./Use to Search Database was not a Breach
1. Introduction
[30] The s. 8 Charter issue arises in the context of s. 12 of the CCA and so I begin with s. 12, which reads as follows:Transporting cannabis
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12 (1).
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. [Emphasis added.] [31] Section 12 is consistent with the decades-long statutory and common law push toward securing the public from unsafe drivers. Driving is an inherently dangerous activity, which is rendered significantly more dangerous when drivers are under the influence of stupefying substances. Legions of cases coming before the courts paint a clear and tragic picture of what results when those under the influence of alcohol or drugs get behind the wheels of motor vehicles, transforming them into lethal weapons. Given the inherent dangers of driving, the “community expects and accepts significant limitations on individual privacy” when it comes to the use of motor vehicles: R. v. Singh, 2024 ONCA 66, 432 C.C.C. (3d) 527, at para. 64.
[32] Section 12 of the CCA is only one aspect of interconnected provincial and federal legislation that provides the police with enhanced investigative powers and procedures designed to permit targeted interventions before harm results. The s. 12 framework supports the public safety goal of preventing drivers and occupants of vehicles from using cannabis in those vehicles when they are in care or control: McGowan-Morris, at para. 64.
[33] There is no dispute between the parties that a person who has care or control of a vehicle in which there is cannabis, contrary to the requirements of s. 12(2) of the CCA, commits an offence contrary to s. 12(1): “no person shall drive or have care or control of a vehicle …”. Therefore, there can be no reasonable dispute in this case that, at a minimum, the police had reasonable grounds to believe that the appellant’s friend, who was seated in the driver’s seat of the idling vehicle, was committing a s. 12(1) offence. When the police arrived in response to the complaint that a vehicle had been idling for hours, they opened the driver’s-side door, cannabis smoke billowed out, and open packages of cannabis were seen at the driver’s feet.
[34] Nor is there dispute between the parties that where the police have reasonable grounds to believe that s. 12(1) is being breached, as was the case here, that “any person found in” the vehicle under care or control may be searched pursuant to s. 12(3) of the CCA. Therefore, the appellant was searchable pursuant to s. 12(3). . D. Michael Goldlist v. Registrar, Alcohol, Cannabis and Gaming Regulations and Public Protection Act
In D. Michael Goldlist v. Registrar, Alcohol, Cannabis and Gaming Regulations and Public Protection Act (Div Ct, 2022) the Divisional Court heard an appeal under the Cannabis Licence Act, where they have that odd 'Notice of Proposal to refuse' procedure you see in license regimes sometimes [I last saw it in the Motor Vehicles Dealers Act, s.9 regarding registrations of MV dealers]:Statutory Scheme
[8] The statutory scheme for the regulation of the sale of recreational cannabis in Ontario is set out in the Cannabis Licence Act, 2018 c. 12, Sched. 2 (the “Act”) and O. Reg. 468/18, General (the “Regulation”) made under the Act. The Alcohol and Gaming Commission of Ontario (“AGCO”) is responsible for administering the Act and the Regulation.
[9] Cannabis may only be sold at an authorized retail store. In general, each authorized retail store requires at least one CRM. There are various responsibilities that can only be performed by a CRM, though a CRM licence is not required for an individual to work at an authorized store.
[10] Section 5(4) of the Act provides that an applicant is not eligible for a CRM licence in certain circumstances, including where there are “reasonable grounds to believe that the applicant will not, in acting as a cannabis retail manager, act in accordance with the law, or with integrity, honesty or in the public interest, having regard to the past or present conduct of the applicant.”
[11] Pursuant to s. 5(5) of the Act, however, s. 5(4) “does not prevent the issuance of a cannabis retail manager licence to an applicant if the applicant has been convicted of or charged with a prescribed offence under the Controlled Drugs and Substances Act (Canada) in relation to cannabis.” Those prescribed offences include possession, trafficking, production, and possession or sale for use in production or trafficking of cannabis.
[12] If the Registrar intends to refuse to issue a licence, it must issue a Notice of Proposal to the applicant with written reasons. Pursuant to s. 14(2) of the Act, an applicant may request a hearing before the Licence Appeal Tribunal within 15 days of being served with the Notice of Proposal; otherwise the Registrar may carry out the proposal. Pursuant to s. 15(2) of the Act, the Tribunal may confirm or set aside the Registrar’s proposal or direct the Registrar to take any action specified by the Tribunal that it considers appropriate. The rest of the case is a useful consideration of a Divisional Court-level cannabis licence appeal, which are relatively new.
. R. v. McGowan-Morris
In R. v. McGowan-Morris (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from an acquittal where "the trial judge’s findings that the respondent’s rights were violated or, alternatively, his decision to exclude the evidence of under s. 24(2) of the Charter".
Here the court reviews some search and seizure provisions of the Cannabis Control Act, 2017 (CCA):[11] It is helpful at this point to describe the legal framework of s. 12 of the CCA. The relevant portions of the provision read as follows:
(3) Section 12 of the CCA
[63] Although he relevant portions of s. 12 of the CCA are reproduced in para. 11, above, I include them here for convenience:Transporting cannabis
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12 (1).
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. [Emphasis added.] [64] As the section heading states, s. 12 regulates the transport of cannabis. In particular, it is focused on the storage of cannabis that is being transported. The clear purpose is to ensure that cannabis is not readily available to any person in a vehicle or boat. The public safety goal is to prevent the use of cannabis by the driver or the occupants of a car or boat while it is being operated: R. v. Sappleton, 2021 ONSC 430, at paras. 46 and 50; R. v. Moulton, 2023 ONCJ 140, at para. 234.
[65] It is an offence to infringe this provision, which may result in a fine for an individual of up to $100,000, a term of imprisonment as long as one year, or both: ss. 22, 23. As noted above, only the driver or a person in care or control of the vehicle or boat may be liable; the offence does not apply to passengers. Even so, s. 12(3) empowers a police officer, on reasonable grounds, to search, without a warrant, a vehicle or boat and any person in it (i.e., passengers).
[66] As noted in R. v. Leonard, 2025 ONCA 63, at para. 9, there are conflicting decisions in the trial courts as to whether this provision, and a near identical provision in the s. 32(5) of the Liquor Licence Act, R.S.O. 1990, c. L.19 (LLA), permits the search of the trunk of a car: see also R. v. Guerrier, 2024 ONCA 838, at para. 19. This court has yet to explore the full scope of the search power in s. 12(3). It is not necessary to do so for the purposes of this appeal. Suffice it to say, this search power, without a warrant, is broad and potentially very intrusive.
|
