Bill 29 - An Act Respecting Cannabis Control

BILL 29

An Act Respecting Cannabis Control

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Cannabis Control Act

1( 1) Section 2 of the Cannabis Control Act, chapter 2 of the Acts of New Brunswick, 2018, is amended

(a) by repealing the definition “private dwelling” and substituting the following:

“private dwelling” means a place that is occupied and used by the owner or occupant as a residence, together with adjacent land or buildings that are normally used for the convenience or enjoyment of the owners or occupants, and includes (logement privé)

(a) a dwelling-house,

(b) a motor home or camper van that is parked at a place other than a place referred to in paragraph 18(2)(a),

(d) any other place prescribed by regulation.

(b) by adding the following definitions in alphabetical order:

“Crown” means the Crown in right of the Province. (Couronne)

“vehicle” means (véhicule)

(a) a motor vehicle as defined in the Motor Vehicle Act,

(b) a farm tractor as defined in the Motor Vehicle Act,

(d) any other vehicle prescribed by regulation.

1( 2) Paragraph 17(1)(a) of the Act is amended by striking out “occupant” and substituting “owner or occupant”.

1( 3) Subsection 18(1) of the Act is repealed.

1( 4) The Act is amended by adding after section 22 the following:

Landlords

22.1( 1) In this section, “landlord” means a person who is

(a) a lessor, owner or person who permits the occupation of a place or premises, or

(b) an owner of a place or premises that has not been vacated by an occupant despite the expiry or termination of the lease or right of occupation.

22.1( 2) No landlord shall knowingly authorize or permit a place or premises to be used for the distribution or sale of cannabis in violation of this Act or the regulations.

1( 5) The heading “INSPECTIONS, OFFENCES AND PENALTIES” preceding section 23 of the Act is repealed and the following is substituted:

ENFORCEMENT

1( 6) Section 23 of the Act is amended

(a) in subsection (4)

( i) by repealing paragraph (a) and substituting the following:

(a) subject to subsection (4.1), enter and inspect any place, premises or vehicle to which this Act applies or any other place or premises connected or contiguous to that place or premises that are related to the operation of that place or premises and make any examinations or inquiries and conduct any tests that the inspector considers necessary or advisable,

( ii) in paragraph (c) by striking out “a place, area or vehicle to which this Act applies” and substituting “the place, premises or vehicle”;

( iii) by adding after paragraph (c) the following:

(c.1) purchase any substance or material that the inspector believes to be cannabis,

(c.2) examine any substance or material found in the place, premises or vehicle and take, for the purpose of analysis, any samples of the substance or material,

(c.3) open and examine any package or other receptacle found in the place, premises or vehicle,

( iv) in paragraph (d) by striking out “documents at a place, area or vehicle to which this Act applies” and substituting “documents or other things at the place, premises or vehicle”;

( v) in paragraph (e) by striking out “a place, area or vehicle where any activity is prohibited under this Act” and substituting “the place, premises or vehicle”;

(b) by adding after subsection (4) the following:

23( 4.1) An inspector shall not enter a private dwelling under paragraph (4)(a) unless the inspector has the consent of the owner or occupant or has obtained an entry warrant under the Entry Warrants Act.

(c) in subsection (5) of the French version by striking out “endroit” and substituting “endroit, un local ou un véhicule”;

(d) by adding after subsection (6) the following:

23( 6.1) A refusal of consent to enter a private dwelling is not and shall not be considered to be obstructing, interfering with or failing to cooperate with an inspector within the meaning of subsection (6), except if an entry warrant has been obtained.

(e) in subsection (7) by striking out “documents” and substituting “documents or other things”;

(f) by adding after subsection (7) the following:

23( 8) Copies of or extracts from documents or other things removed from a place, premises or vehicle under this Act and certified by the person making the copies or taking the extracts as being true copies of or extracts from the originals are admissible in evidence to the same extent as, and have the same evidentiary value as, the documents or other things of which they are copies or from which they are extracts.

1( 7) The Act is amended by adding after section 23 the following:

Inspectors authorized as peace officers

23.1 Every inspector, in carrying out the inspector’s duties under this Act and the regulations, is a person employed for the preservation and maintenance of the public peace and has and may exercise all the powers, authorities and immunities of a peace officer as defined in the Criminal Code (Canada).

Seizure

23.2( 1) An inspector may seize any cannabis, document or other thing that the inspector believes on reasonable grounds may afford evidence of the commission of an offence under this Act or the regulations

(a) during an inspection under section 23,

(b) during a search authorized under the Provincial Offences Procedure Act, or

23.2( 2) An inspector may, in the course of conducting a lawful search in respect of an offence under this Act or the regulations, seize and remove any vehicle in which the inspector finds anything that the inspector believes on reasonable grounds may afford evidence of the commission of an offence under this Act or the regulations.

23.2( 3) The cannabis seized under subsection (1) is forfeited to the Crown, and the Minister shall destroy the cannabis in any manner the Minister considers appropriate unless a person has been charged with an offence under this Act or the regulations, in which case the cannabis shall be destroyed after the proceedings are concluded.

23.2( 4) Subject to section 23.3, the document or other thing seized under subsection (1) or the vehicle seized under subsection (2) may be detained until a person has been charged with an offence under this Act or the regulations and the proceedings are concluded.

23.2( 5) If a person is convicted of an offence under this Act or the regulations, the document or other thing seized under subsection (1) or the vehicle seized under subsection (2), in addition to any penalty that may be imposed under this Act, is forfeited to the Crown and, subject to section 23.3, the Minister may dispose of it in any manner the Minister considers appropriate.

23.2( 6) The document or other thing seized under subsection (1) or the vehicle seized under subsection (2) shall, on application to the Minister, be immediately returned to the owner or the person who at the time of the seizure was in possession of it if

(a) no person is charged with an offence under this Act or the regulations, or

(b) a person charged with an offence is not convicted and any appeal has been disposed of or the time for appeal has expired.

23.2( 7) The document or other thing seized under subsection (1) or the vehicle seized under subsection (2) shall be handed over to the Minister if

(a) the owner is not known and no one was in possession of the document, other thing or vehicle at the time of the seizure,

(b) no person is charged with an offence under this Act or the regulations and no application is made under subsection (6), or

(c) a person is charged with an offence but the charge is dismissed or withdrawn and no application is made under subsection (6) within 30 days after the charge is dismissed or withdrawn.

23.2( 8) The Minister shall keep the document, other thing or vehicle handed over under subsection (7) for 30 days and then dispose of it in any manner the Minister considers appropriate unless within those 30 days a person by notice in writing claims that they are the owner of the document, other thing or vehicle.

23.2( 9) If a person makes a claim under subsection (8) and proves to the satisfaction of the Minister at a time and place specified by the Minister that the person is the owner of the document, other thing or vehicle, the Minister shall return it to the person.

23.2( 10) The owner of the document, other thing or vehicle or the person who at the time of the seizure was in possession of it shall pay, before any return, the expenses relating to their seizure and retention.

23.2( 11) If a person makes a claim under subsection (8) and fails to prove to the satisfaction of the Minister that the person is the owner of the document, other thing or vehicle, the Minister may dispose of it in any manner the Minister considers appropriate.

Forfeiture of vehicle

23.3( 1) Any person who claims an interest as owner, mortgagee, lienholder or holder of any similar interest in a vehicle forfeited to the Crown under section 23.2 may, within 30 days after the date of forfeiture, apply to a judge of The Court of King’s Bench of New Brunswick for an order under subsection (4).

23.3( 2) The judge to whom an application is made under subsection (1) shall fix a day for the hearing that is not more than 20 days after the date of the filing of the application.

23.3( 3) The applicant shall serve notice of the application and of the hearing on the Minister at least 10 days before the day fixed for the hearing.

23.3( 4) If, on hearing the application, the judge is satisfied on a balance of probabilities that the applicant is innocent of any complicity or collusion in respect of the alleged offence that resulted in the forfeiture, the applicant is entitled to an order declaring that the applicant’s interest is not affected by the forfeiture and declaring the nature and extent of the applicant’s interest.

23.3( 5) The applicant or the Minister may appeal an order made under subsection (4), and the procedure governing appeals from orders or judgments of a judge of The Court of King’s Bench of New Brunswick applies.

23.3( 6) Subject to subsection (8), on application made to the Minister by any person who has obtained a final order under this section, the Minister shall

(a) direct that the vehicle to which the interest of the applicant relates be returned to the applicant, or

(b) direct that an amount equal to the extent of the interest of the applicant, as declared in the order, be paid to the applicant.

23.3( 7) An application shall be made under subsection (6) not later than 10 days after a final order is made under this section.

23.3( 8) Before the vehicle is returned to the applicant, the expenses relating to its seizure and detention shall be paid by the applicant, unless the applicant is the owner of the vehicle and the vehicle, at the time of the alleged offence leading to its forfeiture, had been taken or was being used without the applicant’s consent.

23.3( 9) The applicant may, by action in a court of competent jurisdiction, recover the expenses relating to the seizure and detention of the vehicle under this Act from the person convicted of the offence.

23.3( 10) The Minister may sell or otherwise dispose of the vehicle in any manner the Minister considers appropriate if

(a) notice of an application made under subsection (1) has not been served on the Minister within the time specified in subsection (3),

(b) an application has been made under subsection (1) and dismissed and the time limited for appeal has expired, or

No indemnity

23.4 No person shall be entitled to, or have any claim or right to, any indemnity or compensation in relation to a seizure, forfeiture, destruction or disposal under this Act or the Provincial Offences Procedure Act.

Evidence of cannabis

23.5 In a prosecution for an offence under this Act or the regulations, evidence that a substance or material seized by an inspector had an odour of cannabis, was represented as being cannabis or was presented by its packaging, by advertisement or otherwise as being or containing cannabis is proof, in the absence of evidence to the contrary, that the substance or material is or contains cannabis.

Evidence of distribution or sale of cannabis

23.6 In a prosecution for an offence under this Act or the regulations, evidence that an individual left with cannabis in their possession a cannabis retail outlet or any place or premises in which an inspector believes on reasonable grounds that cannabis is distributed or sold in violation of this Act or the regulations is proof, in the absence of evidence to the contrary, that the service provider or the operator or person responsible for the place or premises distributed or sold the cannabis to the individual.

1( 8) Section 24 of the Act is amended

(a) by adding after subsection (2) the following:

24( 2.1) Despite section 56 of the Provincial Offences Procedure Act, the minimum fine that may be imposed by a judge under that Act for any of the following offences shall be:

(a) an offence under paragraph 13(1)(a),  $5,000;

(b) an offence under paragraph 13(1)(b), $2,000; and

24( 2.2) A judge who imposes a fine under Part 2 of the Provincial Offences Procedure Act and, if applicable, under subsection (2.1), on a person who is convicted of an offence under paragraph 13(1)(a) or (b) may impose an additional fine on the person equal in amount to five times the tax that would be payable on the cannabis in respect of that offence.

(b) in paragraph (3)(a) by striking out “the minimum fine set by the Provincial Offences Procedure Act” and substituting “the greater of the minimum fine set by the Provincial Offences Procedure Act and the minimum fine, if any, set by this Act,”.

1( 9) Section 26 of the Act is amended

(a) by renumbering the section as subsection 26(1);

(b) by adding after subsection (1) the following:

26( 2) No person shall be convicted of an offence under subsection 22.1(2) if they exercised all due diligence to prevent the commission of the offence.

1( 10) The Act is amended by adding after section 28 the following:

Analyst

28.1( 1) The Minister may appoint or designate qualified persons as analysts for the purpose of this Act.

28.1( 2) In a prosecution for an offence under this Act or the regulations, a certificate of analysis of any substance or material purporting to be signed by an analyst is, without proof of the analyst’s appointment, authority or signature, admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts stated in the certificate.

1( 11) Schedule A of the Act is amended by adding after

22 ...............

the following:

22.1(2) ...............

Cannabis Retailers Licensing Act

2 Section 41 of the Cannabis Retailers Licensing Act, section 3 of chapter 5 of the Acts of New Brunswick, 2022, is amended by striking out “section 26” and substituting “subsection 26(1)”.

Regulation under the Provincial Offences Procedure Act

3 Section 12 of New Brunswick Regulation 91-50 under the Provincial Offences Procedure Act is amended by adding before paragraph (a) the following:

(0.a) the Cannabis Control Act,