Canada: Vapourizer Ban Goes Up In (Medical Marijuana) Smoke?

On November 13, 2015, the Ontario Government released its proposed regulations (the E-Cig Regs) under the Electronic Cigarette Act (the E-Cig Act and, together with the E-Cig Regs, the E-Cig Legislation) governing the promotion, sale and use of electronic cigarettes in Ontario. The current proposed form of the E-Cig Legislation contains broad restriction on the sale and use of electronic cigarettes, but provides certain exemptions from those restrictions for medical marijuana patients.

If brought into force in its current form, the E-Cig Legislation will be Ontario's first piece of legislation that contains an express exemption for the benefit of medical marijuana patients. The announcement of the E-Cig Regs was understandably met with wide-spread applause from the medical marijuana community and a degree of concern/confusion from other community stakeholders who are unsure how the E-Cig Regs will impact them. In response to such concern and confusion, the Ontario Government has announced that it will revisit the exemption for medical marijuana patients created by the E-Cig Regs prior to the E-Cig Legislation coming into force. This announcement has left medical marijuana patients and advocates wondering what is driving the Ontario Government's hesitation and what the future holds for the medical marijuana exemptions under the E-Cig Regs.

The E-Cig Legislation uses a broad definition of "electronic cigarette" to essentially capture any vapourizer. One of the fundamental policy objectives of the E-Cig Legislation is to restrict how vapourizers may be sold (including a restriction on selling to minors) and used. Most notably, the E-Cig Legislation prohibits the use of a vapourizer in any place or building that is covered by a roof and to which the public is ordinarily invited or permitted access, as well as other prescribed places such as restaurants, bar patios, schools, common areas of buildings and areas in close proximity to hospitals. In order to ensure that these restrictions do not prevent medical marijuana patients from having reasonable access to their medication, the E-Cig Regs exempt individuals who are authorized to possess and use marijuana for medical purposes from the general prohibitions on vapourizer use created under the E-Cig Legislation. In theory, if you are an individual who is authorized to use medical marijuana, you can continue to vapourize your medicine in those places where others are prohibited from using a vapourizer. But what does this really mean, and why is the Ontario Government having second thoughts? Here are three brief takeaways to consider.

1. The E-Cig Legislation Does Not Grant an Absolute Right to Vapourize Marijuana Anywhere

Arguably, the most important issue, and the issue causing the most concern and confusion, is whether the exemptions created under the E-Cig Regs give medical marijuana patients the absolute right to vapourize their medicine wherever they choose. After the E-Cig Regs were announced there was widespread media coverage voicing differing views as to whether medical marijuana patients could now vapourize marijuana in restaurants and bars. Some business owners were rightly confused as to how such a right would impact their businesses and their ability to comply with their existing legal obligations.

In our view, the proposed exemptions for medical marijuana patients created by the E-Cig Regs do not give patients an absolute right to vapourize marijuana wherever they want and they do not render business owners powerless to impose restrictions on the use of vapourizers by medical marijuana patients within their establishments. Patients who are validly authorized to possess and use medical marijuana are exempted from the prohibitions on possession and use of marijuana under criminal law, but must still abide by all other applicable law. Property owners are generally free to impose restrictions on conduct within their premises (provided that those restrictions are not discriminatory or in violation of human rights) and, in some instances, are required to prohibit certain conduct. For example, establishments serving alcohol must, as a condition of their liquor license, prohibit the possession and consumption of a controlled substance (including marijuana) on their premises. There is Ontario jurisprudence which suggests that prohibiting medical marijuana use within an establishment serving alcohol is not contrary to human rights and that such an establishment has an obligation to ensure compliance with the conditions of its liquor license.

2. Employment Issues Need to be Considered

The E-Cig Legislation restricts an employer from taking certain actions against an employee who has acted in accordance with the legislation or has sought enforcement of the legislation. Employers have responded by questioning how these restrictions fit within their general duty to accommodate employees with disabilities or medical conditions. In our view, the E-Cig Legislation can be interpreted as reinforcing the employer's duty to accommodate as it pertains to an employee's use of a vapourizer for medical marijuana, but it does not override the principal that the duty to accommodate does not entitle an employee to be impaired at work or in the course of performing his or her duties. For a broader discussion on the impact of the Marihuana for Medical Purposes Regulations (MMPR) in the workplace please see our earlier article – Medical Marijuana in the Workplace: What Employers Need to Know.

3. Enforcement

The E-Cig Legislation provides for a first offence fine of up to a $1,000 for using a vapourizer in a prohibited area. In order to avoid a fine, patients must demonstrate to the relevant enforcement authorities that they are authorized to possess and use medical marijuana. Patients need to understand that the enforcement authorities might not be familiar with what constitutes valid proof of being a medical marijuana patient. When taking into account the dual medical marijuana regimes (MMPR and Marihuana Medical Access Regulations (MMAR)) which currently exist in Canada, and the myriad of pseudo-authorizations which are granted in reliance on those regimes (for example, a dispensary membership granted in reliance on an MMAR authorization to possess), the Ontario Government will have to ensure that it properly educates enforcement authorities as to what constitutes a valid authorization to possess and use medical marijuana for the purposes of the E-Cig Regs.

We would be surprised if the Ontario Government did not consider some or all of these issues when drafting the E-Cig Regs, but in the face of public confusion over the impact of the medical marijuana exemptions created under the E-Cig Regs, they have reacted by announcing that they need more time to consider the interplay between the E-Cig Regs and existing legislation.

The above update provides a brief overview of some of the issues to consider under the E-Cig Legislation. However, it is important to remember that medical marijuana law is complex and rapidly evolving. At Bennett Jones we have a team of professional advisors that can provide guidance as the Canadian medical marijuana industry continues to advance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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