Canada: New Regime For Marijuana Will Impact Canadian Schools

On April 13, 2017, the federal government introduced legislation, Bill C-45, which will provide legal access to marijuana1 and control and regulate its production, distribution and sale. Currently, the Controlled Drugs and Substances Act makes it a criminal offence to produce, buy, sell, possess or traffic in cannabis, except where access to cannabis is permitted for medical purposes. Bill C-45, the Cannabis Act, would create new rules for the production, distribution, sale and possession of cannabis in Canada. If passed, Bill C-45 will come into force no later than July 1, 2018. Until then, all laws respecting cannabis remain in effect. Also introduced on April 13, 2017 was Bill C-46, an act that would amend the Criminal Code to include new provisions that address drug-impaired driving.

On the one hand, the new regime for cannabis under Bill C-45 will create legal access to cannabis for Canadian adults outside the medical context. This represents a major shift in the criminal law in Canada. On the other hand, Bill C-45 is supposed to strictly regulate the supply of cannabis and keep it out of the hands of Canadian youth. Critics of Bill C-45 have commented that the message youth may take from Bill C-45 is that smoking cannabis is normal, and not harmful, and thus promote a rise in cannabis use among Canadian youth.2 The current level of cannabis use among Canadian youth is quite high, notwithstanding its status as an illegal drug. For example, a recent study by the Propel Centre for Population Health at the University of Waterloo found that one in five students reported trying cannabis, and one in ten reported use in the last 30 days.3

The following activities would be legal if Bill C-45 is passed:4

  • Adults age 18 or older may legally5:
    • Possess up to 30 grams of dried cannabis or equivalent in public;
    • Share up to 30 grams of dried cannabis with other adults;
    • Purchase dried or fresh cannabis and cannabis oil from a provincially regulated retailer, or an online federally licensed producer;
    • Grow up to four (4) cannabis plants of up to 1-metre in height, per residence, for personal use from a licensed seeds or seedlings supplier;
    • Make products at home using legal cannabis such as food and drinks; and
    • Other edible cannabis products may be made available after the government develops regulations for their production and sale.
  • Youth under age 18 would not face criminal prosecution for possessing or distributing up to 5 grams of dried cannabis or its equivalent, although the provinces could introduce a regulatory ticketing system for such activity.6

The following are additional highlights from Bill C-45:

  • Provinces will have the authority to prohibit possession of any amount of cannabis by youth, permitting police to seize any cannabis;
  • Youth under age 18 who contravene the Cannabis Act will be prosecuted under the Youth Criminal Justice Act;
  • New criminal offences with maximum penalties of 14 years in jail for giving or selling cannabis to youth and for using a youth to commit a cannabis-related offence;
  • Prohibitions on packaging and products that are appealing to youth; and
  • Prohibitions on promotion activity, including in a manner that is appealing to youth, or presenting cannabis in a manner that is associated with "glamour, recreation, excitement, vitality, risk or daring".

Medical use of cannabis will continue to be regulated under the Access to Cannabis for Medical Purposes Regulations. Currently there are 43 licensed producers that deliver legal cannabis through the mail to any Canadian with a valid medical prescription.

WHAT HAPPENS NEXT?

The provincial governments are responsible for much of the practical implementation of the Cannabis Act such as licensing the distribution and retail sale of cannabis, any related compliance, and consequential updates to public smoking, zoning, and traffic safety laws. It is therefore not yet known, for example, where Canadian adults will be able to purchase cannabis.

Until Bill C-45 is passed, the current laws remain in effect. This means that the storefront dispensaries that have been operating in plain sight are not operating legally. Many have been subject to raids by police and have been closed down.7 Until Bill C-45 is passed and comes into force, the only lawful way to purchase and use cannabis is under the Access to Cannabis for Medical Purposes Regulations.

WHAT EFFECT WILL THE NEW RULES HAVE ON CANADIAN SCHOOLS?

Although Canadian schools have contended with cannabis use for decades, the federal government's new regime for regulating cannabis will introduce new challenges. In one regard, the classification of cannabis as an illegal drug under the Controlled Drugs and Substances Act for years has compelled school administrators to treat it very strictly. For example, paragraph 310(1) of the Education Act lists trafficking in illegal drugs as an activity leading to suspension.

The Member of Parliament responsible in part for implementing the Cannabis Act, Bill Blair, said in an interview with CBC News that the ultimate goal is to give provinces flexibility to prohibit young people from possessing any amount of cannabis, with an option to introduce non-criminal sanctions for having a small amount (i.e. under 5 grams).8 Health Canada confirms Mr. Blair's view, stating that while it is unacceptable and unsafe for youth under 18 to possess or use any amount of cannabis, it is equally unacceptable for the federal government to burden individuals with criminal prosecution for possession of very small amounts of cannabis.

We contacted representatives of the federal government for comment regarding youth and cannabis under the proposed Cannabis Act.  We can advise that at this time the Cannabis Act does not contain an offence for possession and sharing of up to five grams by persons under 18 years of age. This could still change in Parliament, but as of this writing, the Cannabis Act remains silent for possession of cannabis up to five grams by young persons. In the government's view, the proposed Cannabis Act is reflective of a change of attitude of the Canadian people, many of whom agree with legalization of cannabis in some form. However, the federal government remains vigilant with regards to youth,  stating that it is by no means condoning possession by young people but has instead chosen to remain silent on it for amounts up to five grams. We are further advised that consultation with the provinces during the drafting of the Cannabis Act revealed that some provinces would consider prohibiting possession by youth of small amounts. The federal government advises that the legislation was carefully drafted so as to leave it open for the provinces to regulate certain aspects without the possibility of jurisdictional issues.

The changes resulting from the Cannabis Act do not mean that students would have a right to bring up to 5 grams of cannabis to school; rather, police will not charge such students with a criminal offence that could lead to having a criminal record (although students could still be ticketed and have the cannabis confiscated).  In our view, preventing students from possessing, using, sharing or selling cannabis at school remains a valid objective for Canadian schools.

Once the full scope of the provincial regulation of cannabis is announced, school boards will need to revise existing policies to ensure consistency with such regulations. For example, school boards are required under s. 29.2 of the Ontario Education Act to establish a drug education policy framework and implement a policy on drug education in accordance with that framework. Such framework and policy will need to be updated after the passage of the Cannabis Act and related provincial regulations.

MEDICAL ACCESS TO CANNABIS

Legal access to cannabis for medical purposes has been allowed in Canada to varying degrees since 1999.  The use of cannabis to treat certain symptoms of illness such as pain management or neurological disorders arises in the context of disability management and accommodation.  As stated earlier, the current system of providing legal access for medical purposes will remain in place.  That system, under the Access to Cannabis for Medical Purposes Regulations, consists of federally licensed commercial cannabis producers who are authorized to sell cannabis to individuals with a legal prescription.  Such sales are conducted by mail only.  At present, there are 43 licensed producers of cannabis in Canada.  Individuals may also register with Health Canada to produce a limited amount of cannabis for their own medical purposes. 

The Cannabis Act, and legal access to cannabis for non-medical use, could have the effect of destigmatizing the use of cannabis for medical purposes.  As a result, we could see more individuals with prescriptions for cannabis for medical purposes which could translate into more employees such as teachers seeking accommodation of a disability.  The usual framework that applies to accommodation of a disability to the point of undue hardship continues to apply. 

The issue of impairment by cannabis is a significant concern as evidenced by the government's efforts to create a roadside impairment test that police can use to detect and charge drug-impaired drivers.  In the employment context, accommodating employees who are impaired by a medication, especially those in safety sensitive positions such as teachers, could amount to undue hardship.  Impairment and accommodation will continue to be part of an individualized assessment in relation to an employee's disability. 

In the non-medical context, schools can continue to have zero tolerance for employees who are impaired at work.  Similar to alcohol, cannabis may soon become a legal intoxicant for Canadian adults, but this does  entitle a person to use cannabis at work or be impaired by cannabis while working.  However, employers may no longer be able to discipline or dismiss an employee for off-duty conduct that becomes legal after the Cannabis Act comes into effect.

A less common scenario is accommodating a disabled student's use of cannabis for medical purposes. The Canadian Pediatric Society has ssued several statements to assert that there is insufficient data to support the efficacy or safety of medical cannabis for children, and that smoking cannabis is specifically unacceptable for children.9 The University of Saskatchewan announced on February 1, 2017 that it would study cannabis oil as a treatment for children with medically intractable epilepsy and associated cognitive decline.10 On May 24, 2017, CBC News reported on a study from the New England Journal of Medicine which researched the effect of cannabidiol in reducing seizures for children with Dravet syndrome, a rare severe form of epilepsy.11 Such children were given pharmaceutical grade cannabinoids and medically supervised. The narrow scope of illnesses under review suggests that physicians are unlikely to widely prescribe cannabis to children.

However, it remains possible that a student would request accommodation of a disability by asking for permission to take cannabis-related substances at school.  The legal  process around accommodation would continue to apply: educators must confirm a student's medical needs and confirm that the use is lawful (e.g. obtain a copy of a prescription or other evidence of compliance with the Access to Cannabis for Medical Purposes Regulations); assess when and how the medication is to be administered; and safeguard a student's personal health information.  The issue of impairment should also be monitored and reduced as much as possible, given the need for students to have a safe and healthy learning environment.

There have been few reported cases dealing with accommodating student use of cannabis for medical reasons. In one example at the post-secondary level, the British Columbia Human Rights Tribunal dismissed a claim of discrimination by a Fine Arts student who advised his university that he was smoking cannabis for to manage pain from osteoarthritis.12 The university requested medical information to confirm there was no risk of impairment. This was particularly important given the requirement to use heavy equipment in one of his visual arts courses. The university was ultimately found to have presented the student with reasonable accommodation options for completing his coursework without using the heavy equipment. For his part, the student did not participate in the accommodation process because he refused to provide the necessary medical information. The case was dismissed.

Summary

The changes to Canada's treatment of cannabis will have profound effects on Canadian society, and in Canadian schools. On the one hand, the message to adults is that possession and use of cannabis for non-medical and medical purposes is acceptable within the restrictions set out by the federal and provincial governments. On the other hand, the intended message to youth is that cannabis is harmful, but the Cannabis Act presently does not contain an offence for possession and sharing up to five grams. Educators will remain responsible for educating students about the harms of cannabis, and keeping it out of schools.

Footnotes

1 Referred to hereinafter by its formal name, cannabis.

2 See for example Kelly Grant, "What Canada's Doctors are Concerned about with Marijuana Legalization,"The Globe and Mail (12 April 2017)

3"As Many Teens Smoke Tobacco as Smoke Pot, Study Finds,"CBC News (9 May 2017)

4 Health Canada, Media Release, "Backgrounder: Legalizing and Strictly Regulating Cannabis: The Facts" (April 2017)

5 Provinces will be responsible for setting access and may, at their option, set access at an age higher than age 18.

6 Bill C-45, Cannabis Act, 1 st Sess, 42 nd Parl, 2017, s. 8(1)(c) and s. 9(1)(b)(i)

See for example Member of Parliament William Blair quoted by Kirsty Kirkup, "Ottawa Wants Young Teens to Avoid Criminal Record for Pot Possession,"CBC News (17 April 2017)

7 See for example Sammy Hudes, "Toronto Police Raid 4 Marijuana Dispensaries," The Toronto Star (29 March 2017)

8 Kirsty Kirkup, "Ottawa Wants Young Teens to Avoid Criminal Record for Pot Possession," CBC News (17 April 2017)

9 See for example Canadian Pediatric Society, Position Statement, "Is the Medical Use of Cannabis a Therapeutic Option for Children?" (5 Feb 2016) and Canadian Pediatric Society, Position Statement, "Cannabis and Canada's Children and Youth" (24 Nov 2016)

10 University of Saskatchewan, Media Release, "U Of S Launches Study of Cannabis Treatment for Childhood Epilepsy" (1 Feb 2017)

11 Amina Zafar, "Cannabidiol Reduces Seizures in Kids With Severe Form of Epilepsy, Trial Shows," CBC News (24 May 2017)

12 Dean v. University of Victoria and Another, 2012 BCHRT 71

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