Canada: Cannabis Legalization Likely Delayed To End Of Summer 2018

The path to legalization of cannabis in Canada will likely be delayed to the end of summer 2018. Although the federal government passed the Cannabis Act on November 27, 2017, it will not be in force until it has been passed by the Senate, and on a date that the federal cabinet will select and announce. Recent reports indicate that the federal government will not declare the Cannabis Act in force until late summer, rather than by July 2018 as anticipated.1

Part of the delay can be attributed to the Senate, which has been engaged in vigorous debate about the legalization of cannabis, raising such issues as a potential rise in youth consumption, drug-impaired driving and the potential legalization of edible cannabis products.2 During a recent Senate session, federal Health Minister Ginette Petitpas Taylor said the provinces and territories would need two to three months to get ready for legalization, which largely is a ramp-up of capacity to sell cannabis in retail stores.3

Meanwhile, the province of Ontario continues to prepare for the legalization of cannabis. On December 12, 2017, the Ontario government passed legislation which will give effect to the federal government's corresponding de-criminalization of cannabis in the Cannabis Act. The Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 will implement a significant number of changes to the use, sale and regulation of cannabis in Ontario. These new laws are not yet in force, but are expected to be proclaimed in force concurrently with the federal Cannabis Act.

Ontario's Cannabis Regime

The Cannabis Act, 2017, when it comes into force, will treat non-medical cannabis use more strictly — like alcohol — in that it can only be purchased by adults over age 19 in government-run retail stores and consumed only in private residences.

Below are the key elements of Ontario's regulated access to cannabis:

  1. Minimum age to use, buy, possess and cultivate cannabis will be 19.
  2. Non-medical cannabis use is restricted to private residences.
  3. Adults over age 19 may grow up to four plants.
  4. Cannabis use will be prohibited in public places, workplaces, motor vehicles and boats. This prohibition would include schools.
  5. The Liquor Control Board of Ontario will oversee the retail sales of cannabis in Ontario by establishing the Ontario Cannabis Retail Corporation. There will be at least 150 standalone retail stores by 2020, and online retail sales facilitated through Shopify.4 All cannabis sold in Ontario will be obtained from the federally-licensed commercial cannabis producers who are authorized to sell cannabis to individuals with a legal prescription under the federal Access to Cannabis for Medical Purposes Regulations ("ACMPR").
  6. Police will continue to shut down illegal cannabis "dispensaries" and "clubs." They are not included in Ontario's retail framework for legal access to cannabis.

Strict Prohibitions on Smoking or Vaping Cannabis

The Smoke-Free Ontario Act, 2017 the ("SFOA") will regulate the smoking aspect of cannabis, and it will also address the issue of vaping (electronic cigarettes or e-cigarettes) as a method of using cannabis and other tobacco products.

The following will be strictly prohibited in enclosed public places, enclosed workplaces and schools within the meaning of the Education Act:

  1. Smoke or hold lighted tobacco.
  2. Smoke or hold lighted medical cannabis.
  3. Use an electronic cigarette.

Employers will be obligated to ensure compliance with the SFOA, for example by posting prescribed signs and removing ashtrays from enclosed public places. There is a new reprisal section which prohibits an employer from taking action against an employee who acts in accordance with the SFOA or seeks the enforcement of it, including dismissing or threatening to dismiss an employee, disciplining, or suspending an employee, or threatening to do so, imposing a penalty or intimidating or coercing an employee.

The SFOA contains exemptions for medical cannabis users that live in a residence which is also an enclosed workspace. These exemptions are very narrow and unlikely to apply to a school context. For example, limited medical cannabis use may be permitted in a long-term care home that has an indoor room designated as a controlled area for smoking or use of electronic cigarettes.

Strict Prohibitions for Youth Access to Cannabis

Under the Cannabis Act, 2017, youth under age 19 will be prohibited from possessing, consuming, attempting to purchase, purchasing or distributing cannabis. Further, no one under age 19 will be permitted to cultivate, propagate or harvest cannabis (or offer to do any of those activities for others). While youth will not be subject to criminal offences for breaching the Cannabis Act, 2017, police and prosecutors have the authority to issue a fine of up to $200. Further, police will be permitted to seize cannabis in connection with an offence, including any cannabis that is found in the possession of youth under age 19.

Police will also have the authority to refer a potential young offender to an "approved youth education or prevention program." Prosecutors will have a similar authority when exercising their power to stay a provincial offences proceeding or in withdrawing a charge. The Cannabis Act, 2017 authorizes the attorney general to approve education or prevention programs and will list such programs on a publicly available website.

Medical Cannabis Users Remain Regulated

The current medical access regime will remain in place for medical cannabis users. The federal Access to Cannabis for Medical Purposes Regulations ("ACMPR") allows possession of cannabis for medical purposes if obtained:

  1. from a licenced producer;
  2. from a health care practitioner in the course of treatment for a medical condition; or
  3. from a hospital.

Individuals who claim to be medical cannabis users must show supporting documents to police on demand. It is also reasonable for schools to request such documents in connection with the duty to accommodate a student or staff disability.

There have been reports in the media of benefit providers offering to extend coverage to medical cannabis for specific conditions and symptoms associated with cancer, rheumatoid arthritis, multiple sclerosis, HIV AIDS and palliative care.5 Where such extended coverage is offered, employees will be subject to the terms of the applicable benefit plans, including the requirement to provide supporting documentation to the insurer.

Impairment Still Not Acceptable at School or Work

Educators and employers can continue to take the position that impairment at school or in the workplace is not acceptable. The legal access regime described above does not provide anyone in Ontario with a legal right to consume or possess cannabis on school premises, or to be impaired at school without any recourse to the school or employer. If a student or an employee is a medical cannabis user, the matter will be treated like any other accommodation of a disability.

In the accommodation process, cannabis will be considered like any other medication. Employers, whether in the school setting or otherwise, will need to undertake an individual assessment of an employee's disability and the options for reasonable accommodation, including where a person may be impaired due to medical use of cannabis. Students and employees must participate in the accommodation process by providing information, including medical information, about their cannabis use and level of impairment (if any).

Schools will have to decide, on an individual basis, whether accommodating a student or employee with a disability requires tolerating a certain level of impairment during the school day. As noted above, smoking or vaping cannabis will not be permitted at schools, even for medical cannabis users.

The Ontario government proposes to amend the Education Act concurrent with the Cannabis Act, 2017 to include the definition of "medical cannabis user": "a person who is authorized to possess cannabis for the person's own medical purposes in accordance with applicable federal law." The Provincial Code of Conduct section will be revised to state that one of the purposes of the Code of Conduct is to discourage the use of alcohol and illegal drugs, except by a medical cannabis user. Section 306 of the Education Act, which deals with suspensions, will be revised to prohibit possession of cannabis, except for a student who is a medical cannabis user. These amendments are consistent with the treatment of medical cannabis use as a disability accommodation, rather than disciplinary, matter.

The amendment to section 310 of the Education Act will include giving cannabis to a minor as one of the activities leading to suspension. This amendment is consistent with the federal government's introduction of new offences for giving cannabis to youth.

We will continue to monitor the federal and provincial governments' evolving efforts to provide adults with legal access to cannabis. Schools boards and independent schools should be reviewing relevant policies and procedures in anticipation of implementation by late summer 2018.

Footnotes

1.  Daniel Leblanc, "Federal government still not ready to launch marijuana legalization", The Globe and Mail, February 15, 2018.

2.  Daniel Leblanc and Christine Pellerin, "Regulatory lag to push legal marijuana to late summer," The Globe and Mail, February 6, 2018.

3.  Supra note 1.

4.  The Canadian Press, "LCBO announces deal with Shopify to run online cannabis sales platform," The Toronto Star, February 12, 2018.

5.  Armina Ligaya, Canadian Press, "Sun Life Financial to add medical marijuana option to group benefits plans," Financial Post, February 15, 2018.

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