Cannabis Act (Police Enforcement) Regulations: SOR/2018-151

Canada Gazette, Part II, Volume 152, Number 14

Registration

June 27, 2018

CANNABIS ACT

P.C. 2018-955 June 26, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to section 139 of the Cannabis Actfootnote a, makes the annexed Cannabis Act (Police Enforcement) Regulations.

Cannabis Act (Police Enforcement) Regulations

Interpretation

Definitions

1 The definitions in this section apply in these Regulations.

Act means the Cannabis Act. (Loi)

appropriate officer means

chief means, in respect of a police force other than the RCMP, the senior police officer in charge of the police force. (chef)

military police means military police that are designated under subsection 2(2). (policier militaire)

particular investigation means a primary investigation conducted under the Act or any other Act of Parliament and includes any investigation that arises from the primary investigation. (enquête particulière)

police force means a police force that is designated under subsection 2(1). (corps policier)

provincial minister means the provincial minister responsible for policing in a province. (ministre provincial)

RCMP means the Royal Canadian Mounted Police. (GRC)

Designation of Police Forces and Military Police

Authority to designate — police forces

2 (1) The Minister of Public Safety and Emergency Preparedness and every provincial minister are authorized to designate any police force within the jurisdiction of the Minister or the provincial minister, as the case may be, for the purposes of any or all provisions of these Regulations.

Authority to designate — military police

(2) The Minister of National Defence is authorized to designate military police for the purposes of any or all provisions of these Regulations.

General Exemptions

Section 8, 9, 10, 11, 12 or 14 of the Act

Offences — general — police

3 A member of a police force or of the military police is exempt from the application of section 8, 9, 10, 11, 12 or 14 of the Act, as applicable, if the member engages in any activity referred to in those sections involving cannabis — other than cannabis that has been forfeited to Her Majesty, that is imported or exported under the exemption provided for in section 17 of these Regulations or that is produced under the exemption provided for in section 19 of these Regulations — of which the member has come into possession during a particular investigation, if the member

Offences — general — direction and control

4 A person is exempt from the application of section 8, 9, 10, 11, 12 or 14 of the Act, as applicable, if the person engages in any activity referred to in any of those sections involving cannabis — other than cannabis that has been forfeited to Her Majesty, that is imported or exported under the exemption provided for in section 17 of these Regulations or that is produced under the exemption provided for in section 19 of these Regulations — of which the person has come into possession, if the person

RCMP notification — importation or exportation

5 A member of a police force or of the military police who is exempt under section 3 of these Regulations from the application of section 11 of the Act must notify, in written or electronic format, the Assistant Commissioner of the RCMP in charge of drug enforcement of the importation or exportation of cannabis, in respect of which the exemption applies, by the member — or by a person under the member’s direction and control who is exempt under section 4 of these Regulations from the application of section 11 of the Act — before the cannabis is imported or exported or, if it is not feasible to do so before the importation or exportation, as soon as feasible after that time.

Section 9 or 10 of the Act — Distribution or Sale

Distribution or sale — police

6 A member of a police force or of the military police who engages in any activity referred to in section 9 or 10 of the Act is exempt from the application of that section if the member

Distribution or sale — direction and control

7 A person who engages in any activity referred to in section 9 or 10 of the Act is exempt from the application of that section if the person

Section 9, 10, 11 or 12 of the Act in Respect of Offering to Engage in Activities

Offering to engage in activities — police

8 A member of a police force or of the military police who engages in any activity referred to in section 9, 10, 11 or 12 of the Act by offering to engage in that activity is exempt, in respect of offering to engage in that activity, from the application of that section, if the member

Offering to engage in activities — direction and control

9 A person who engages in any activity referred to in section 9, 10, 11 or 12 of the Act by offering to engage in that activity is exempt, in respect of offering to engage in that activity, from the application of that section, if the person

Other General Exemptions

Conspiracy, etc. — police

10 A member of a police force or of the military police is exempt from the application of the provisions that create the offence of conspiracy to commit, an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence under section 8, 9, 10, 11, 12 or 14 of the Act if the member

Conspiracy, etc. — direction and control

11 A person is exempt from the application of the provisions that create the offence of conspiracy to commit, an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence under section 8, 9, 10, 11, 12 or 14 of the Act if the person

Other Regulations

Other Regulations — police

12 A member of a police force or of the military police who is exempt under these Regulations from the application of section 8, 9, 10, 11, 12 or 14 of the Act in respect of engaging in any activity referred to in that section is exempt, in respect of engaging in that activity, from the application of the Cannabis Regulations and the Industrial Hemp Regulations.

Other Regulations — direction and control

13 A person who acts under the direction and control of a member of a police force or of the military police and who is exempt under these Regulations from the application of section 8, 9, 10, 11, 12 or 14 of the Act in respect of engaging in any activity referred to in that section is exempt, in respect of engaging in that activity, from the application of the Cannabis Regulations and the Industrial Hemp Regulations.

Exemptions with Certificate

Section 9 or 10 of the Act — Distribution or Sale

State cannabis — distribution or sale

14 (1) Subject to section 8 of these Regulations, a member of a police force or of the military police is exempt from the application of section 9 or 10 of the Act, as applicable, if the member engages in any activity referred to in those sections involving cannabis that has been forfeited to Her Majesty, that is imported under the exemption provided for in section 17 of these Regulations or that is produced under the exemption provided for in section 19 of these Regulations, if the member has been issued a certificate.

Conditions for issuing certificate

(2) The appropriate officer may issue a certificate for a period not exceeding six months for the purposes of subsection (1) to a member of a police force or of the military police, as the case may be, if the member

Direction and control — distribution or sale

15 Subject to section 9 of these Regulations, a person is exempt from the application of section 9 or 10 of the Act, as applicable, if the person engages in any activity referred to in those sections involving cannabis that has been forfeited to Her Majesty, that is imported under the exemption provided for in section 17 of these Regulations or that is produced under the exemption provided for in section 19 of these Regulations, if the person

Section 11 of the Act — Importation or Exportation

Interpretation — controlled deliveries

16 For the purposes of subsection 17(1) and section 18, cannabis requested of and obtained directly from a foreign state does not include cannabis that has, for the purpose of identifying any person involved in the commission of an offence under the Act or any other Act of Parliament or a conspiracy to commit such an offence, been allowed to pass out of or through a foreign state, under the supervision of that state’s competent authorities.

State cannabis — importation or exportation

17 (1) A member of a police force or of the military police is exempt from the application of section 11 of the Act if the member engages in any activity referred to in that section involving cannabis that has been forfeited to Her Majesty, that is produced under the exemption provided for in section 19 of these Regulations or that has been requested of and obtained directly from a foreign state, if the member has been issued a certificate.

Conditions for issuing certificate

(2) The Assistant Commissioner of the RCMP in charge of drug enforcement may issue a certificate to a member of a police force or of the military police, as the case may be, for a period not exceeding six months for the purposes of subsection (1) if the member

Direction and control — importation or exportation

18 A person is exempt from the application of section 11 of the Act if the person engages in any activity referred to in that section that involves cannabis that has been forfeited to Her Majesty, that is produced under the exemption provided for in section 19 of these Regulations or that has been requested of and obtained directly from a foreign state, if the person

Section 12 of the Act — Production

State cannabis — production

19 (1) Subject to section 8 of these Regulations, a member of a police force or of the military police is exempt from the application of section 12 of the Act if the member engages in any activity referred to in that section involving cannabis that has been forfeited to Her Majesty or that is imported under the exemption provided for in section 17 of these Regulations, if the member has been issued a certificate.

Conditions for issuing certificate

(2) The appropriate officer may issue a certificate for a period not exceeding one year for the purposes of subsection (1) to a member of a police force or of the military police, as the case may be, if the member

Direction and control — production

20 Subject to section 9 of these Regulations, a person is exempt from the application of section 12 of the Act if the person engages in any activity referred to in that section involving cannabis that has been forfeited to Her Majesty or that is imported under the exemption provided for in section 17 of these Regulations, if the person

Certificate

Information in certificate

21 A certificate issued under section 14, 17 or 19 must identify the member of the police force or of the military police to whom it is issued, the duration of the exemption and the particular investigation to which it relates.

Revocation of Certificate

Revocation

22 (1) A certificate issued under section 14, 17 or 19 to a member of a police force or of the military police is revoked on the earliest of

Notice

(2) The appropriate officer must notify the member of the revocation on the day on which the certificate is revoked under paragraph (1)(a), (c) or (d).

Detention and Disposal of Forfeited Cannabis

Notice to Minister — cannabis required

23 (1) The chief or appropriate officer must, as soon as feasible but not later than 60 days after the day on which cannabis that has been forfeited to Her Majesty is no longer required for the preliminary inquiry, trial or other proceeding, under the Act or any other Act of Parliament, in respect of which it was seized, if the cannabis is required for the purposes of conducting investigations under the Act or any other Act of Parliament, inform the Minister in writing that the cannabis is required for those investigations.

Secure location

(2) Cannabis referred to in subsection (1) must be kept in a secure location while not being used for the purposes of conducting investigations under the Act or any other Act of Parliament.

Transfer

(3) The chief or appropriate officer is exempt from the application of section 9 of the Act if they transfer any cannabis referred to in subsection (1) to another chief or another appropriate officer who requests the transfer for the purposes of a particular investigation.

Notice to Minister — transfer

(4) If a transfer is made under subsection (3), the chief or appropriate officer who

Directions — cannabis not required

(5) If cannabis referred to in subsection (1) is no longer required for the purposes of conducting investigations under the Act or any other Act of Parliament, the chief or appropriate officer must seek the directions of the Minister and dispose of or otherwise deal with the cannabis in accordance with the Minister’s directions.

Disposal — cannabis not required

(6) If cannabis that has been forfeited to Her Majesty is not required for the purposes of conducting investigations under the Act or any other Act of Parliament, the chief or appropriate officer must, as soon as feasible,

Notice to Minister

24 The chief or appropriate officer must, within 60 days after the day on which cannabis is disposed of or otherwise dealt with under section 105 of the Act, notify the Minister in writing to that effect.

Reports

Annual report

25 (1) The chief or appropriate officer must submit to the Minister of Public Safety and Emergency Preparedness and to the Minister, within three months after the end of every calendar year, a report in written or electronic format containing the information referred to in subsection (4), in respect of cannabis that is imported or exported under the exemption provided for in section 17, cannabis that is produced under the exemption provided for in section 19 and cannabis that is referred to in section 23, that came into the possession of the police force or of the military police in the course of a particular investigation completed during the calendar year.

Copy of report — police force other than RCMP

(2) The chief or appropriate officer of a police force other than the RCMP must send a copy of the report to the provincial minister responsible for the police force.

Copy of report — military police

(3) The Canadian Forces Provost Marshal must send a copy of the report to the Minister of National Defence.

Contents of report

(4) The report must include the following information:

Additional report

(5) The chief or appropriate officer of a police force must submit to the Minister, on the Minister’s request, a report in written or electronic format respecting the cannabis as required for the following purposes:

Report — cannabis no longer in possession

26 (1) The chief or appropriate officer must submit to the Minister of Public Safety and Emergency Preparedness and to the Minister a report in written or electronic format containing the information referred to in subsection (4), respecting any cannabis referred to in section 23 that is lost, stolen or otherwise no longer in the possession of the police force or of the military police, as soon as feasible after such a situation occurs.

Copy of report — police force other than RCMP

(2) The chief or appropriate officer of a police force other than the RCMP must send a copy of the report to the provincial minister responsible for the police force.

Copy of report — military police

(3) The Canadian Forces Provost Marshal must send a copy of the report to the Minister of National Defence.

Contents of report

(4) The report must include the following information:

Coming into Force

Subsection 204(1) of Act or registration

27 These Regulations come into force on the day on which subsection 204(1) of the Cannabis Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Once the Cannabis Act comes into force, it will be the legal framework within which the production, distribution, sale and possession of cannabis in Canada is controlled. As a result, cannabis will no longer be subject to the Controlled Drugs and Substances Act (CDSA), although this legal framework will remain in place regarding other controlled drugs and substances. Consequently, neither the existing Controlled Drugs and Substances Act (Police Enforcement) Regulations (CDSA Regulations) nor the Narcotic Control Regulations will apply to cannabis and the exemptions they provide from criminal prosecution for law enforcement with respect to cannabis will cease to exist.

To ensure that existing exemptions from criminal prosecution for law enforcement remain in place with respect to cannabis, new regulations need to be introduced (similar to the existing CDSA Regulations) to ensure that law enforcement has the tools it needs to conduct investigations. Without continuity in the application of these exemptions upon the coming into force of the Cannabis Act, law enforcement would be criminally liable for the commission of offences under this Act that form part of a lawful investigation.

Background

Controlled Drugs and Substances Act (Police Enforcement) Regulations

In a 1999 decision (R. v. Campbell), the Supreme Court of Canada found that law enforcement were not immune from criminal liability for criminal acts they committed during the course of an investigation, even if those acts were executed in good faith. This case was a result of an investigation that took place in 1991. The trial decision was rendered in 1995, which was then successfully appealed in 1997.

As a consequence of the evolution of this case, the CDSA Regulations were introduced in 1997 to authorize the Royal Canadian Mounted Police (RCMP) as well as provincial and municipal police forces, and anyone acting under their direction and control, to commit offences under the CDSA (trafficking, importation, exportation and production of controlled substances) when doing so in the course of an investigation conducted under an Act of Parliament.footnote 1

The CDSA Regulations apply to all drugs and substances listed in Schedules I to V of the CDSA (e.g. Schedule I includes morphine, cocaine, oxycodone; Schedule II lists cannabis and its derivatives).

In 2002, the Criminal Code (subsections 25(1) and 25(14)) was amended to provide protection against criminal prosecution for anyone authorized to do anything that is reasonably considered to be part of the administration or enforcement of the law. However, these provisions specifically state that they do not provide exemptions for CDSA offences.

Military police

Bill C-37, an Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, received royal assent on May 18, 2017. This Act amended the CDSA, the Customs Act and other legislation to better equip health and law enforcement officials in their efforts to reduce the harms associated with drug and substance use in Canada. One amendment (subsection 55(2) of the CDSA) authorized military police to be added to the CDSA Regulations so that they may benefit from the same exemptions previously only provided to police forces and anyone acting under their direction or control. These Regulations have not yet been amended to include military police; however, amendments may be proposed in the near future.

Subsection 55(2) of the CDSA has been replicated in subsection 139(6) of the Cannabis Act to include coverage for the military police. In consultation with the Provost Marshal’s office of the Military Police, it has been determined that these exemptions are required so as to not limit the military police investigative techniques used to enforce drug laws within its area of jurisdiction.

Narcotic Control Regulations

Possession of cannabis by police, including military police as designated peace officers, is authorized by paragraph 3(1)(g) of the Narcotic Control Regulations. These Regulations originally came into force in 1961 under the Narcotics Control Act, which preceded the CDSA, but since 1997 have been under the CDSA. These Regulations outline the circumstances under which activities involving narcotics (including cannabis), as defined in the Regulations, are permitted. Cannabis is being removed from all aspects of these Regulations, including references to cannabis, marijuana and to the medical cannabis regime.

Objectives

The objective of the Cannabis Act (Police Enforcement) Regulations (the Regulations) is to ensure that law enforcement will continue to be exempt from criminal prosecution when carrying out activities as part of investigations that are otherwise proscribed by the Cannabis Act as criminal offences, as has been provided for under the CDSA Regulations, as well as extend the exemptions to military police as authorized by subsection 139(6) of the Cannabis Act.

Description

Overall, the Regulations replicate the existing CDSA Regulations, with slight differences in terms that required corresponding changes in language to align with these differences (e.g. in the CDSA Regulations, the offence of “trafficking” will become “distribution” and “sale” in the new Regulations).

The Regulations authorize the RCMP, provincial and municipal police forces, the military police and anyone acting under their direction and control (hereinafter referred to as “law enforcement”), to commit offences under the Cannabis Act (e.g. distribution, sale, importation, exportation, possession and production of cannabis) when doing so in the course of an investigation conducted under an Act of Parliament.

As in the case of the CDSA Regulations, these Regulations also exempt law enforcement from criminal liability when conspiring to commit these acts, when providing assistance to someone who has already committed any of these acts, and when providing advice on the commission of these acts, so long as it occurs in the course of an investigation.

Unlike the CDSA Regulations, the new Regulations will include an exemption for law enforcement for possession of cannabis as part of a lawful investigation. This is because cannabis will be removed from the Narcotic Control Regulations once the Cannabis Act comes into force, thereby leaving law enforcement otherwise criminally liable for the offence of possession of cannabis when it forms part of a lawful investigation. The Narcotic Control Regulations are being amended through a separate Health Canada process to make this change at the same time as the Cannabis Act Regulations are being drafted.

Where law enforcement intends to use cannabis that has been seized for the purposes of the distribution, sale, importation, exportation and/or production as part of an investigation, immunity afforded by the Regulations is subject to a requirement for a certificate (as in the case of the CDSA Regulations). For the offence of distribution, sale and production, this certificate must be issued by the Assistant Commissioner of the RCMP in charge of drug enforcement for the RCMP; in the case of any other police force, the most senior officer responsible for operations; or the Provost Marshal for the Military Police. For the offence of importation and exportation, this certificate can only be issued by the Assistant Commissioner of the RCMP in charge of drug enforcement.

For the purposes of sale, distribution, importation and exportation, a certificate can be issued for a maximum period of six months; and for the purposes of production, for a maximum period of one year. In all cases, a certificate must identify the duration of the exemption, as well as the name of the member of the police force or military force, and the particular investigation to which it applies.

The Regulations also outline circumstances under which a certificate can be revoked, as follows: by the member of the police force or military force for whom the certificate was issued; when that member is no longer in active service; when the member is no longer part of the investigation for which the certificate was issued; or when the investigation is complete or the certificate expires.

Similar to the CDSA Regulations which contain a section on the “Detention of Forfeited Substances,” a similar section on the “Detention and Disposal of Forfeited Cannabis” is included in the Regulations to provide instruction on the destruction and storage of forfeited cannabis, including the application of exemptions to police forces that transfer forfeited cannabis from one police force to another for the purpose of an investigation. As in the CDSA Regulations, the transfer of forfeited cannabis also requires a notification to the Minister of Health.

Like the CDSA Regulations, the Regulations also provide a section on “Annual Reports” to outline the reporting requirements for law enforcement involved in investigations and their possession of cannabis (e.g. they must report the name and total quantity of each controlled substance in their possession). The annual report must be sent to the Minister of Public Safety and Emergency Preparedness and to the Minister of Health.

Finally, the Cannabis Act introduces a new offence regarding the use of a young person to commit an offence under the Act (section 14), which does not exist in the CDSA; therefore, a similar exemption for law enforcement does not exist in the CDSA Regulations. The introduction of this specific offence underlines the Government of Canada’s commitment to the protection of youth, given the maximum prison term for the offence being set at 14 years. This is significant, as anyone who is sentenced to more than 10 years for the commission of a criminal offence can be declared a dangerous offender.

The inclusion of an exemption for law enforcement from the application of the Act regarding this offence is a deviation from the current regulatory regime only because the CDSA does not include a similar offence. The CDSA does not define “person”, and does not make a distinction between a person who is young and one who is not. Therefore, the CDSA Regulations extend exemptions to persons of all ages who act under the direction and control of law enforcement. In other words, law enforcement already has these exemptions under the CDSA Regulations, though they are not expressly stated. Therefore, the inclusion of an exemption in the Regulations regarding this offence is a deviation from the current regulatory regime only in that it must be stated explicitly.

“One-for-One” Rule

The Regulations only apply to law enforcement; no businesses will be impacted. Therefore, the “One-for-One” Rule does not apply.

Small business lens

The small business lens does not apply to the Regulations, as no costs would be imposed on small business.

Consultation

The Canadian Association of Chiefs of Police (CACP) is a professional association for law enforcement leaders in Canada; it provides a cross-country perspective on the issues and concerns facing policy departments. The mandate of the CACP Drug Advisory Committee (DAC) is to promote safer and healthier communities by addressing and influencing prevention, enforcement and treatment of substance abuse. This Committee was consulted in person at its biannual meeting in March 2018; it expressed support for the new Regulations.

At that meeting, Committee members were also asked to solicit their colleagues and provide any comments or feedback on the new Regulations via email. As a result, from March through April 2018, Public Safety Canada officials consulted with the Ontario Provincial Police, the Abbotsford Police Department in British Columbia, the Peterborough Police Service and the Saskatoon Police Service on these Regulations as these were the police services that expressed an interest in participating in the review and consultation process undertaken in support of these changes. Each of these police forces expressed support for the new Regulations.

Rationale

The Regulations ensure that law enforcement will continue to have the tools it needs to conduct investigations under an Act of Parliament. They will also preserve the operations under the existing regulatory regime and allow law enforcement to continue investigations without criminal liability. This will serve to protect and advance the public interest in the health, safety and security of Canadians.

An exemption for law enforcement under the Regulations in respect of the new offence regarding the use of a young person for the commission of an offence under the Cannabis Act is required to ensure continuity of existing exemptions. This exemption ensures that law enforcement is equipped to conduct investigations and infiltrate illegal operations that target youth, ultimately facilitating the laying of charges to reduce these occurrences. Without this exemption, there will be a gap in the capability of law enforcement to address one of the central objectives of the Act, which is to prevent young persons from accessing cannabis. In addition, law enforcement would be criminally liable for actions that would otherwise form a part of a lawful investigation.

No incremental costs for the Government of Canada or law enforcement are anticipated as a result of the implementation of these Regulations.

Implementation, enforcement and service standards

These Regulations will come into force on the date that cannabis is removed from the CDSA. The Minister of Public Safety and Emergency Preparedness will send a letter to the President of the CACP, as well as the Commissioner of the RCMP and the Provost Marshal of the Military Police to ensure that law enforcement across the country are aware of the changes.

The Regulations will be enforced by existing independent internal affairs organizations throughout Canada that work to ensure that improper conduct by law enforcement is appropriately dealt with. For example, in the case of the military police, the responsible organization is the Military Police Complaints Commission; in the case of the RCMP, the responsible organization is the Civilian Review and Complaints Commission for the RCMP; in the case of provinces, the responsible organizations are independent provincial offices set up to investigate complaints against the police as well as professional standards units within police services (e.g. in Ontario, the responsible body is the Office of the Independent Police Review Director, which may refer the case to the professional standards unit of the police service).

In addition to these enforcement mechanisms (which will involve disciplinary proceedings, if determined to be required), law enforcement will be criminally liable and therefore subject to a criminal investigation, should they act outside the scope and guidelines set out by the Regulations.

Contact

Kimberly Lavoie
Director
Drug Policy Development Division
Law Enforcement and Border Strategies Directorate
Community Safety and Countering Crime Branch
Public Safety Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
Telephone: 613-991-4301
Email: kimberly.lavoie@canada.ca