10 Things to Know Now That Recreational Cannabis Will Be Legal in Canada

  • August 23, 2018
  • Esther Nwator and Christine Laviolette

The legalization of recreational cannabis will have an impact on practice areas ranging from personal injury to immigration, and in settings public and private, including shops and schools, workplaces, highways and homes.  Find out what to expect with this overview of recent developments, including the status of cannabis legalization, associated regulations, connection to Bill C-46, and emerging issues to keep an eye on.

1. Recreational use of cannabis will be legal in Canada on October 17, 2018.

The Liberal government looks set to achieve their stated goal of legalizing cannabis by 2018, although it will be slightly later than initially forecast. Bill C-45, the Cannabis Act ("the Act"), to legalize and regulate the recreational consumption of cannabis received Royal Assent on June 21, 2018 and is scheduled to come into force on October 17, 2018. The delay to the fall is to allow the provinces time to prepare for legalization, including procurement of cannabis stock to sell from storefronts.

The societal context for Bill C-45 has been characterized as follows by Parliament:

The objectives of the Act are to prevent young persons from accessing cannabis, to protect public health and public safety by establishing strict product safety and product quality requirements and to deter criminal activity by imposing serious criminal penalties for those operating outside the legal framework. The Act is also intended to reduce the burden on the criminal justice system in relation to cannabis.

2. Cannabis is to be regulated through a model of co-operative federalism.

The regulation of cannabis is to occur through a division of responsibility between the federal and provincial/territorial levels. The Standing Senate Committee on Legal and Constitutional Affairs said in its May 1, 2018 report, following its consideration of Bill C-45, that “while the Cannabis Act would provide a national framework addressing the criminal and health-related aspects of these matters, the provinces, territories, municipalities and Indigenous communities are expected to further regulate the possession, use, sale, and distribution of cannabis.

There are four new sets of regulations under the Cannabis Act, which were published on July 11 and come into force in October along with Bill C-45. These include the Cannabis Regulations, the new Industrial Hemp Regulations, the Cannabis Act (Police Enforcement) Regulations and the Qualifications for Designation as Analyst Regulations (Cannabis). 

The Cannabis Regulations address the following themes:

  • Licences, Permits, and Authorizations;
  • Security Clearances;
  • Cannabis Tracking System;
  • Cannabis Products;
  • Packaging and Labelling;
  • Cannabis for Medical Purposes;
  • Health Products and Cosmetics Containing Cannabis; and
  • Miscellaneous Issues.

The Industrial Hemp Regulations set out the requirements for cultivators of industrial hemp, which is cannabis that contains 0.3% tetrahydrocannabinol (THC) in the flowering heads and leaves.

The Cannabis Act (Police Enforcement) Regulations set out exemptions to the Cannabis Act for law enforcement authorities in order to allow them to conduct investigations and other police activity without being in contravention of the Act.

3. Provinces are moving in the same direction, but not taking a uniform approach.

In anticipation of the Act coming into force, provinces and territories have been creating their own cannabis frameworks.

Legal age: Most provinces and territories have set the minimum age for possession of cannabis at 19. The governments of Quebec and Alberta plan to set legal age restrictions for cannabis at 18.

Home-growing: Under the Cannabis Act, an individual may grow up to four plants in a single dwelling. However, Manitoba and Quebec have decided to prohibit home cultivation of cannabis. Other provinces and territories have implemented their own restrictions on the quantity and location of homegrown cannabis.

Retail location: Some provinces and territories have imposed, or plan to impose, restrictions on where retail cannabis stores may be located. In New Brunswick, cannabis stores must be at least 300 metres away from a school. Other provinces, such as Alberta and British Columbia, have implemented restrictions providing that cannabis stores may only sell cannabis and cannabis accessories.

Recreational consumption: Consuming recreational cannabis in public will be prohibited in Saskatchewan, Ontario, and Newfoundland and Labrador. Other provinces, such as British Columbia and Alberta, have prohibited cannabis consumption wherever smoking tobacco is prohibited.

4. There is ongoing debate about how to address drug-impaired driving.

Bill C-46, which also received Royal Assent on June 21, 2018, amends the Criminal Code to strengthen the legislative provisions relating to driving while impaired by drugs, including cannabis.

One of the issues that has been debated during consideration of Bill C-46 in the Senate is how to reliably detect current impairment at the roadside, including oral fluid testing and/or blood testing. For now, Bill C-46 appears to permit roadside alcohol and drug screening through collection of a "bodily substance", which could include blood. Bill C-46 sets limits for offences linked to cannabis consumption.

5.  The legalization of cannabis will raise some interesting issues for the workplace.

There has been interesting analysis on the anticipated impact the legalization of cannabis will have on the workplace. In Aitchison v. L & L Painting and Decorating Ltd., the Human Rights Tribunal of Ontario denied a discrimination claim in a case involving a high-rise painter found smoking cannabis at work, which he attributed to a medical need. There are other recent decisions reaching similar conclusions on the appropriate balance to be struck between these competing interests, including the recent Court of Appeal of Nova Scotia decision in Canadian Elevator Industry Welfare Trust Fund v. Skinner, 2018 NSCA 31, overturning a ruling that denying coverage for medical cannabis was discriminatory.

As the law stands, termination of an employee may be defensible in circumstances where they attend work under the influence of drugs or alcohol, bring drugs or alcohol to the workplace, or consume drugs or alcohol in the workplace. Granted, consideration will need to be given to any human rights issues at play, including alleged disability connected to drug use. There is, however, no absolute right to use medical cannabis at work, and the legalization of recreational cannabis use is unrelated to, and not expected to impact, that position.

There were calls during Senate debates for Bill C-46 to include “a regulatory alcohol and drug testing framework to monitor and address employee fitness for duty in safety-sensitive industries, particularly in the transportation industry."

6. There will be (at least initially) little impact on access to cannabis for medical purposes.

The impact on cannabis for medical purposes is expected to be negligible, though some minor administrative changes are being proposed as to how to access it (see section 7.2.1 here). The Cannabis Regulations will substantively incorporate the current regulations under the Access to Cannabis for Medical Purposes Regulations, which will be repealed once the new regulations come into force. With the exception of approval for a wider class of health professionals to prescribe cannabis, access to cannabis for medical purposes will remain unaffected by the Cannabis Act. As things stand, those accessing cannabis for medical purposes need a medical document to do so, which they can obtain from physicians and nurse practitioners (the latter only in provinces and territories where supporting access to cannabis for medical purposes is included under their scope of practice or in legislation).

One area that may see some change is the personal injury field where it is anticipated that there will be an increase in plaintiffs seeking funding for medical cannabis as an alternative to traditional forms of pain relief. The Ontario Workplace Safety and Insurance Appeals Tribunal has outlined principles to be considered in extending funding for medical cannabis in Ontario.

7. A cannabis tracking system will be implemented.

The cannabis tracking system will operate like an online portal to track cannabis through the supply chain from seedling, to sale, to the ultimate consumer. This is intended to operate as a means to prevent the diversion of legitimate cannabis into the black market, or from the black market into legitimate distribution. The tracking system will also ensure quality control, facilitate recalls, and provide other related services for consumers. How this will work exactly remains to be seen.

8. Cannabis packaging, labelling and advertising will be prescribed by the government.

Packaging and labelling will be strictly prescribed for consistency of information and to address the government’s stated goal of protecting the public. Proposed images showing how the packaging may look were released by Health Canada on March 19, 2018.

What about advertising and media? The Cannabis Act restricts marketing similarly to tobacco. It bans promotion that appeals to youth, contains false or misleading statements, or depicts people, celebrities, characters, or animals. How this will be enforced, especially with regards to the internet, remains to be seen.

9. Some groups believe Bill C-45 does not do enough.

Concerns have been expressed about the collateral impact that the maximum penalty provisions will have on non-citizens through the deportation provisions of the Immigration and Refugee Protection Act.

There has also been a call for the federal government to grant pardons to people convicted of possessing 30 grams or less of cannabis. One perspective is that the legacy of systemic failures leading to the overrepresentation of visible minorities in arrests and convictions connected with cannabis will remain after the legalization, particularly if there are no pardons for minor cannabis infractions that predate the passing of Bill C-45.

There is to be a mandatory review of the Cannabis Act after three years.

10.  Other issues will need to be ironed out.

Given the speed at which Bill C-45 was passed through the legislature, we can expect some teething problems. As is discussed in the January 2018 CBA submission regarding the Consultation on Federal Cannabis Regulation, a regime for the Minister of Health to make administrative decisions for issuing and placing conditions on licences, permits and authorizations is being contemplated. There are currently no provisions for recourse. Among other things, there needs to be a mechanism for decisions to be reconsidered, appealed or reviewed, so that requirements of procedural fairness are met.

Finally, there are those who believe that the Cannabis Act will face many years of constitutional challenges, including from parties seeking to resist or enforce the stance taken by Manitoba and Quebec to ban home cultivation. There’s also the perspective that Indigenous communities were not adequately consulted about legalization, residual concerns over the impact on their communities and a potential lack of clarity over taxation on reserves. Time will tell how it all plays out.

A longer version of this article appears on the OBA’s website for the Health Law Section.

The authors remind readers that the subject matter of this article is in a state of flux and subject to change.

ABOUT THE AUTHORS

Esther Nwator, barrister and solicitor, sits on the OBA Health Law Section Executive and the Canadian Bar Association's working group for the regulation of cannabis. She currently works in professional regulation at an Ontario health college.

Christine Laviolette is a senior associate at Borden Ladner Gervais, specializing in civil litigation, mental health law and regulatory law. She is a member of the OBA Health Law Section Executive, and regularly writes and speaks on current health law issues.

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