As the Canadian medical marijuana industry continues to expand and evolve at a rapid pace, unintended gaps have begun to appear across a wide spectrum of legislation. One such gap currently exists in the Ontario school system whereby students with prescriptions for medical marijuana (Student Patients) may face accommodation challenges as they tread into uncharted and controversial territory.
As a preliminary matter, this article will not discuss the ongoing debate surrounding the efficacy and safety of marijuana use amongst children and adolescents as such topic is beyond our scope and much better addressed by those with medical knowledge. Instead, we are going to assume that if a student has obtained a prescription to use medical marijuana to treat a medical condition, the student, his or her parent or guardian and their family physician have carefully and thoroughly considered all of the issues surrounding child or adolescent use of medical marijuana and have determined that, despite any reservations and concerns, the student's medical condition warrants the use of medical marijuana as a treatment option. Therefore, our consideration of the issues explored in this article is made on the premise that there are students who are very ill, for whom medical marijuana greatly improves their quality of life and whose inability to access medical marijuana while at school either deprives them of access to the same level of education as their peers or necessitates that they unduly suffer in order to access that education.
Therefore, assuming that the introduction of the Marihuana for Medical Purposes Regulations (MMPR) will result in an increase in the number of Student Patients in Ontario, it is worth addressing some of the accommodation challenges that schools are currently facing or may be facing in the future which are, at least in part, due to the failure of existing legislation and related school board policies to address the issue of medical marijuana use in schools.
The Legislative Gap
The Ontario Experience
In Ontario, provincial legislation, and school board codes of conduct and policies are silent (we assume unintentionally) on the ability of a student to consume medical marijuana in any form on school property. In order to understand such silence it is important to look at the legislation:
- Education Act (Ontario) (Education Act): The Education Act and its regulations provide the statutory basis for how education is delivered to students in Ontario's publicly funded school system. While the Education Act makes the possession and trafficking of illegal drugs an activity that can lead to suspension or expulsion of a student, it does not specifically address the use of prescription drugs – including medical marijuana;
- Smoke-Free Ontario Act (SFOA): The SFOA bans the smoking or holding of lighted tobacco products at schools but makes no reference to medical marijuana;
- Electronic Cigarettes Act (ECA): The ECA, while not yet fully in force, provides broad exemptions for medical marijuana patients (which would include Student Patients). In its current form, the ECA would allow a Student Patient to use a vapourizer for medical marijuana consumption on school property; and
- School Board Policies: Most, if not all, school boards in Ontario have policies and procedures in place with respect to assisting students with medication. As an example, the Toronto District School Board has a policy that establishes processes for dealing with the handling and administration of medication to students, however, it, along with other policies we reviewed, are silent on medical marijuana use.
Dealing with overlapping legislation, including the MMPR, is not an easy task for school boards. The Education Act is perhaps the most challenging as the term "illegal drug" is not expressly defined so there is no clear carve-out for students who require prescription medicines that would otherwise be classified as controlled substances (i.e., medical marijuana). An argument could be made that a Student Patient with a prescription for medical marijuana (and therefore an exemption from the prohibitions created under federal Controlled Drugs and Substances Act) is not technically in possession of an "illegal drug". However, this line of reasoning forces Student Patients and educators to rely on an inference for the purposes of facilitating accommodation for Student Patients rather than providing clear legislative guidance. Further, school board policies that address assisting students with taking medication are not helpful for Student Patients who choose to medicate by way of inhalation versus some form of ingestion. It should be noted that medical marijuana is currently only legally available in three formats from licensed producers under the MMPR – dried marijuana, fresh marijuana and cannabis oil – and inhalation remains the predominant mode of self-administration.
Because of the lack of guidance provided by existing legislation, schools face the difficult challenge of balancing the accommodation needs of Student Patients, the rights of other students and the interests and desires of the school's other stakeholders. For example, while the proposed ECA exemptions for medical marijuana would have gone a long way to providing Student Patients with the right to self-administer medical marijuana during school, these exemptions attracted the concern and criticism of various stakeholders which ultimately led to the Ontario government stating that it will "revisit" and further consider the exemptions. Consequently, the legislative gap remains and Student Patients and educators remain unsure as to their rights and obligations.
North American Examples
The consequences of legislative uncertainty are illustrated by a high-school student in Saskatchewan who recently brought a human rights complaint against the Saskatchewan Public School Board for denying his request to consume legally prescribed medical marijuana at school. As a proposed alternative, the school board requested that the student drive home to use his medicine whenever he felt pain, and denied the student's request to use a vapourizer in a private area of the school. The case is currently before the Saskatchewan Human Rights Commission.
Moving south of the border, the rapid increase in the liberalization of marijuana laws at a State level has raised similar concerns, leading two jurisdictions to pass laws or policies addressing the use of medical marijuana in schools:
- New Jersey became the first State to allow medical marijuana in schools as a response by the State to a school district's refusal to allow a 16-year-old student (who was using medical marijuana oil to treat his seizures) to possess and consume medical marijuana oil on school property. The school board feared that allowing such possession would violate the State's "Drug-free School Zone" laws and the general U.S. federal law prohibition against the possession of marijuana. In response, New Jersey State legislators intervened and proposed a bill to allow the consumption of medical marijuana oil on school grounds. However, the legislation (which was signed into law on November 9, 2015) expressly banned the administration of medical marijuana by a student via smoking or other forms of inhalation; and
- A similar policy was adopted by the Auburn School Committee in Auburn, Maine. The Auburn policy provides that medical marijuana can be consumed on school property if the medicine was approved by a doctor and administered in school by a parent or guardian. Of note, the policy requires the medical marijuana to be in a non-smokeable form and stipulates that only the primary caregiver is allowed to administer the drug in the principal's office or another place the principal chooses. School staff (including a nurse) and other students cannot hold or administer the medical marijuana.
The responses of the State of New Jersey and the Auburn School Committee to the lack of legislative guidance on how to accommodate Student Patients in school are encouraging and should be applauded, but neither solution is perfect – both limit the means of consumption and the Auburn policy prohibits school staff from aiding in the administration of the medicine. Accordingly, while those experiences provide Ontario legislators and educators with some guidance they should not be viewed as cut-and-paste solutions for Ontario.
Moving Towards a Solution
Medical marijuana use in school is a multi-faceted, multi-stakeholder issue. In our view, there is no right answer or perfect solution as what might work well for one school may be untenable in another. We query whether adequate guidance on the accommodation of Student Patients in school can be achieved by blanket legislation which compels all educators to treat all Student Patients in the same manner in all Ontario schools. What we believe may be more fruitful is: (A) an express recognition in the Education Act that a Student Patient's constitutionally-mandated right to reasonable access to medical marijuana includes the right to reasonable access to such medicine while at school; and (B) the Minister of Education mandating that all Ontario school boards promptly adopt, implement and enforce policies which facilitate such reasonable access. In order to ensure that school boards are properly motivated to implement such policies the Education Act should provide that where a school board has not adopted any such policy within a reasonable period of time (for example, six months from the date of the required amendments to the Education Act) "reasonable access to medical marijuana while at school" will be interpreted as "unrestricted access, anywhere on school property other than in a classroom where other students are present". The prospect of that result should, we hope, cause school boards to spring into action.
So, what might a school board policy on the use of medical marijuana in school look like? We don't know, but the following considerations may aid school boards in focusing their resources on the right questions:
- Verification & Privacy – school boards will have to adapt their existing policies on student use of medication to address how they will verify a Student Patient's medical need for marijuana (both in terms of the Student Patient's medical document (e.g., prescription) and any daily prescribed consumption limits) and safeguard the Student Patient's privacy.
- Location – where will Student Patients be allowed to consume medical marijuana? The number of Student Patients in a school, the geographic location of the school (both in terms of climate and proximity to other community spaces) and the availability of resources (both in terms of physical space and personnel) should all be considered when determining where Student Patients are required to consume their medicine.
- Mode of Consumption – should Student Patients be limited to certain forms of consumption? It seems untenable that a school board will permit smoking medical marijuana at school, but consideration should be given as whether Student Patients should be prohibited from other forms of consumption such as using a vapourizer? Consideration should be given to technological advances in delivery devices (e.g., personal vapourizers) that are becoming increasingly smokeless and odourless and thus may become palatable to school boards as viable means of consumption.
- Stakeholder Education – as with all controlled substances, it is imperative that educators, students, parents and other stakeholders are properly educated as to the rights of Student Patients, the potential impact of child and adolescent medical marijuana use and the school board's policy on the use of medical marijuana. The school board should consider how best to educate its particular stakeholder group.
- Academic Accommodation – what academic accommodation, if any, should be provided to Student Patients?
- The Role of Research and Technology – perhaps most importantly, any policy should include mandated regular re-evaluation of these issues as cannabis research, scientific evidence and cannabis technology continue to evolve. Advancements in research and technology will, for example, lead to the establishment of more accurate guidelines for proper dosage, more precise delivery methods and smoke-less consumption alternatives. In turn, a better understanding of proper dosage could assist Student Patients in scheduling the use of their medicine in relation to their school schedule. Novel delivery methods (e.g., inhalers) and smoke-less alternatives (e.g., capsules, lozenges) may address the health concerns of second-hand smoke, nuisance smells, and general distraction to the remaining student body.
As the number of Student Patients increase, schools will undoubtedly face additional accommodation challenges. Strict, top down, prescriptive solutions from Federal and Provincial governments to the school boards may make it difficult for school boards to tailor Student Patient accommodation in light of their individual and community circumstances. As such, school boards should have a seat at the table and, importantly, private industry and government need to dedicate sufficient resources to continuing stakeholder education, scientific research and technological advancement. We are currently in a situation where our legal framework has outpaced our practical reality and we must react in a way that provides the greatest accommodation for Student Patient needs without producing a deleterious effect on a school's overall learning environment.
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