Canada: Ontario Government Proposes To Allow Cannabis Smoking And Vaping In Public Places

With just days until adult use cannabis is decriminalized by changes to federal laws on October 17, 2018, Ontario is proposing to amend the provincial laws that were passed by the previous government respecting cannabis consumption and retail sales. On September 27, 2018, the Ontario government introduced Bill 36, the Cannabis Statute Law Amendment Act, 2018. It was debated at Second Reading on October 1, 2018. Corresponding regulations outlining new policy requirements for long-term care home licensees and new province-wide smoking regulations have also been introduced and will remain open to public comment until October 8, 2018.

A significant portion of Bill 36 establishes the private retail sales model for cannabis that will come into effect in April 1, 2019. From October 17, 2018 onwards, adults over age 19 in Ontario will be able to legally purchase cannabis from the Ontario Cannabis Store's online platform.

The unexpected change from Bill 36 is that it would loosen the restrictions on public consumption that were put in place by the previous government's Cannabis Act, 2017, (which Bill 36 proposes to re-name the Cannabis Control Act, 2017). Essentially, cannabis smoking will be allowed wherever tobacco smoking is allowed. The Ontario government has provided a list of places where a person would smoke and vape cannabis in Ontario if Bill 36 is passed.1 A summary is set out below:

  • Private residences — this does not include residences that are also workplaces (e.g. long-term care and/or retirement homes)
  • Many outdoor public places (e.g. sidewalks, parks)
  • Designated guest rooms in hotels, motels and inns
  • Residential vehicles and boats that meet certain criteria (e.g. have permanent sleeping accommodations and cooking facilities, and are parked or anchored)
  • Scientific research and testing facilities (if the cannabis use is for scientific research and testing purposes)
  • Controlled areas in:
  • long-term care homes
  • certain retirement homes
  • residential hospices
  • provincially-funded supportive housing
  • designated psychiatric facilities or veterans' facilities

*Additional restrictions on smoking and vaping may exist in municipal by-laws, lease agreements, and the policies of employers and property owners.

The Ontario government has also provided a list of places where a person cannot smoke or vape cannabis in Ontario if Bill 36 is passed.2 A summary is set out below:

  • Indoor common areas in condos, apartment buildings and university/college residences
  • Enclosed public places and enclosed work places
  • Non-designated guest rooms in hotels, motels and inns
  • Schools and places where children gather
  • Within a certain distance of entrances/exits of hospitals, hospices, care homes and certain other facilities, on outdoor grounds of hospitals and psychiatric facilities, and in non-controlled areas in long-term care and other similar types of homes
  • Publicly owned sports fields (except golf courses), nearby spectator areas and public areas within 20m of these areas
  • Vehicles or boats being driven or at risk of being put into motion, in which no form of cannabis consumption is allowed (this would apply to both drivers and passengers)
  • Certain outdoor areas, including:
  • in restaurants and on bar patios and public areas within 9m of a patio
  • on outdoor grounds of Ontario government office buildings
  • in reserved seating areas at outdoor sports and entertainment locations
  • grounds of community recreational facilities, and public areas within 20m of those grounds
  • in sheltered outdoor areas with a roof and more than two walls which the public or employees frequent, or are invited to (e.g. a bus shelter)

The day after Bill 36 passed first reading, the Premier of Ontario made public statements committing to ensure that cannabis use would be "off-limits wherever kids may be around".3 It is presently unclear whether any revisions to a final version of Bill 36 will result.

With respect to commercial driving and medical cannabis, there will also continue to be additional cannabis-related rules after October 17, 2018. For example, commercial drivers will continue to be subject to a zero tolerance policy for cannabis and alcohol consumption under the Criminal Code of Canada. In addition, medical cannabis users will continue to be regulated by Part 14 of the Cannabis Regulations, which allows possession of cannabis for medical purposes if obtained:

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

If an employee is a medical cannabis user, it is reasonable for employers to request supporting documentation in connection with the duty to accommodate an employee's disability.

Despite the apparent loosening of cannabis consumption rules in Bill 36, employers remain entitled to adopt policy measures to prohibit impairment by cannabis in the workplace, including prohibiting adult use cannabis consumption at work. The Ontario government has indicated that "consuming recreational cannabis in the workplace is illegal" and will continue to be after legalization on October 17, 2018.4 

Pursuant to the Occupational Health and Safety Act (OHSA), employers are required to prepare and review at least once a year a written occupational health and safety policy, and to develop and maintain a program to carry out the policy. With the upcoming changes to cannabis laws, it is important for employers to address the potential workplace hazards that can arise as a result of employee cannabis use, especially when it comes to workers in safety-sensitive workplaces or safety-sensitive positions. Furthermore, all workers have a duty to perform their work safely and report any hazards to their supervisor or employers under the OHSA. As such, employers should be prepared to respond to cannabis-related safety reports from workers starting on October 17.

Going forward, employers are encouraged to continue to maintain policies restricting alcohol, drug, and cannabis use in the workplace. Given that the language and definitions in the Cannabis Control Act, 2017 and the Smoke-Free Ontario Act, 2017 will change if Bill 36 is passed in its current form, it is important that employers update their policies to remove any outdated language. For example, the rules respecting the use of "medical cannabis" in the Smoke-Free Ontario Act, 2017 would refer to "cannabis" if Bill 36 is passed. It is also important that employers conduct regular reviews to revise their respective drug, cannabis, and alcohol policies to ensure that they are detailed, specific, and updated to reflect the most recent developments in the case law.

We will continue to monitor the Ontario government's approach to adult use cannabis and the impact this will have on the workplace, and keep you updated in our bulletins.

Footnotes

1 Ontario Government, "Cannabis legalization," accessed October 1, 2018.

Ibid.

3 "Doug Ford contradicts his own government's cannabis plan, says smoking in parks is 'unacceptable'," CBC News, September 28, 2018.

4 Ontario Government, "Cannabis legalization," accessed October 1, 2018.

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