Cannabis, the law, and housingLauren Blumas, Iler Campbell LLP – lblumas@ilercampbell.com

December 6, 2017

Overview

• The medical marijuana framework right now

• Recreational cannabis - impending legalization

• Recreational and medical cannabis in housing

• Vaporizing and e-cigarettes

• Personal cultivation

The medical marijuana framework right now

• Access to Medical Cannabis for Medical Purposes Regulations (ACMPR)

• Government’s response to successful challenges to the former medical marijuana regime

• Individuals authorized by health care practitioners using a “Medical Document” (like a perscription)

• Patients may apply to Health Canada to grow their medical cannabis

• Health Canada says 1 gram/day = 2 outdoor or 5 indoor plants

• The “Allard Injunction”

• Allows individuals authorized under the old Medical Marijuana Access Regulations to continue to grow and possess medical cannabis

• Quantities prescribed under this program were generally larger

• Time limited – probably all expired by now

The Cannabis Act

• April 13, 2017 – introduction of Bill-C-45 (the “Cannabis Act”) –

passed by the Housig of Commons on November 27, 2017 - to

Senate for approval

• Intended to create a strict legal framework for controlling the

production, distribution, sale and possession of cannabis in Canada

by July 2018

• Amends federal legislation including the Controlled Drugs and

Substances Act

• Creates a framework in which provinces have much discretion to

regulate the distribution and sale of cannabis

The Cannabis Act – continued

• Allows for:

• Possession of dried or fresh cannabis by an individual up to 30 grams (provincial discretion to lower)

• Share (not sell!) up to 30 grams with other adults

• Purchase dried or fresh cannabis/cannabis oil from a provincially-licensed retailer

• Grow up to 4 cannabis use for personal consumption (provincial discretion to regulate)

• Make cannabis products, at home, for personal consumption (provided certain requirements are satisfied)

• For adults only – floor is set at 18 by feds – provinces have discretion to set higher (Ontario = 19)

• Other products – ie edibles – may be made available through future regulations

• WHERE cannabis can be consumed is left to the provinces

The Cannabis Act - penalties

• Penalties, including criminal penalties, will still exist for things like:

• Illegal distribution or sale – sale to minors or by unlicensed entity

• Possession over the limit

• Growing more than the cultivation limit

• Etc

• Smaller infractions = fine

• Maximum penalties include jail time

• Meant to target organized crime/residual black market

The Cannabis Act – medical marijuana

• Leaves room for further regulations on licensing for consuming and

growing medical cannabis

• Those with authorizations to possess or produced that are current or

in process will automatically be incorporated

• Won’t need to go through the medical regime to access cannabis to

treat symptoms – medical consumers may decide to access through

recreational retailers

Ontario - Framework

• Bill 174 Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 – passed first reading early November

• Repeals and replaced current Smoke-Free Ontario Act with new one which addresses marijuana and e-

cigarettes

• Sets out retail and packaging framework and restrictions on where cannabis can be consumed

• 11 (1) No person shall consume cannabis in,

• (a) a public place - place to which the public has access as of right or by invitation, whether express

or implied, and whether or not a fee is charged.

• (b) a workplace within the meaning of the Occupational Health and Safety Act;

• (c) a vehicle or boat; or

• (d) any prescribed place.

• Smoking cannabis in common areas, including medical cannabis, will be restricted in the same way as

tobacco

Ontario Framework – new obligations on landlords

• New provincially imposed obligations on residential landlord proposed

• 6 (1) No person shall sell cannabis, other than the Ontario cannabis retailer.

• 13 (1) No person shall knowingly permit a premises of which he or she is a landlord to be used in relation to an activity prohibited by section 6.

• “landlord” means, in respect of a premises, a person who is a lessor, owner or person permitting the occupation of the premises, and includes an owner of a premises that has not been vacated by the tenant despite the expiry of the tenant’s lease or right of occupation.

• (2) It is a defence to a charge under subsection (1) that the defendant took reasonable measures to prevent the activity.

• Provides for fines you see under Fire Code/Building Code

• What does this mean for residential landlords? What are “reasonable measures”?

What does this all mean for housing providers?

• In some ways, simplifies matters

• Re recreational use - shift from a matter of “illegal” activity to a matter of nuisance/substantial interference

• Smoking recreational cannabis to be dealt with in the same manner as smoking tobacco

• Restrictions can be implemented building-wide (Smoke-Free Ontario Act, 2017 and leases)

• Same issues around grandfathering

• Good time for housing providers/landlords to revisit leases and policies re smoking

• how is “smoking” defined?

• Will the policy/provisions capture cannabis smoke

Smoking Recreational Cannabis

• EX - Continued use in contravention of “no smoking” clause in lease

• Potential grounds for eviction under RTA -

• Substantial interference with reasonable enjoyment or lawful right, privilege

or interest of Landlord or another Tenant

• Serious impairment of safety (unlikely)

• Illegal act (s. 61 RTA)

• Willfully causing undue damage (unlikely)

• Proceed cautiously - may want to consult lawyer to avoid triggering a human

rights complaint

• In absence of “no smoking” clause, threshold of substantial interference higher

Medicinal use of cannabis in housing• Major differences between medicinal and recreational use of cannabis

• Medical use attracts protections under the Human Rights Code

• Implications in housing context

• Medical cannabis consumers have the right to use their medicine as prescribed

• General use of medical cannabis to treat and control symptoms of a disability is protected under the Human Rights Code

• Does not mean that medical cannabis patients have the right to smoke anywhere - no “right” to smoke in unit

• Exceptions may need to be made on case-by-case basis as an accommodation under the Human Rights Code to the point of “undue hardship”

• Depending on form, may be no impact on landlord/tenant relationship - ie. ingestion by eating or tinctures

• Remember - Smoke-free Ontario Act, 2017 will prohibit smoking medical cannabis in common areas future charter challenge? Who knows….

Medicinal use of cannabis

• Landlords /housing providers can have clauses restrict smoking in units [incorporate units as they turnover] – extends to smoke

• Must consider requests for accommodation for medical cannabis as they come

• STEP 1: discerning legal vs. recreational use

• Medical document/letter from treating physician

• STEP 2: smoking medical cannabis in unit as an accommodation

• Not the default

• Landlord may ask for medical information setting our limitations and disability-related needs

• Smoking as method of administering is necessary for treatment

• Medically significant symptoms that require use in unit

• STEP 3: provide appropriate accommodation short of undue hardship

• “Case Study” – accommodating medicinal use

Smoking Medical Cannabis

• EX – Perscription for medical use. Evidence given needs to smoke to administer

mediciinal benefits. No evidence cannot use designated outside area. Continued

use in contravention of “no smoking” clause in lease

• Potential grounds for eviction under RTA -

• Substantial interference with reasonable enjoyment or lawful right, privilege

or interest of Landlord or another Tenant

• Serious impairment of safety (unlikely)

• Illegal act (s. 61 RTA)

• Willfully causing undue damage (unlikely)

• may want to consult lawyer to avoid triggering a human rights complaint

Vapourizing

• Smoke-Free Ontario Act, 2017 – will include restrictions on e-cigarettes

• E-cigarettes defined as

• means a vaporizer or inhalant-type device, whether called an electronic cigarette or any other name, that contains a power source and heating element designed to heat a substance and produce a vapour intended to be inhaled by the user of the device directly through the mouth, whether or not the vapour contains nicotine

• Medical and recreational consumers alike may use vaporizers to consume

• May be a significant legal difference between smoke and vapour on account of the medical evidence (or lack thereof)

• Restriction in common areas by legislation, but need to carefully consider policies/leases that restrict use in units

• vaporizing (non-medical purposes) may be difficult to enforce it at LTB

• vaporizing medical marijuana - need to be very cautious about any limitations

• Ban might not satisfy the “rational connection” test under the Human Rights Code

Personal Cultivation

• Medical Purposes

• Right now, requires registration with Health Canada

• Application form requires consent of “site owner”

• Probably not a human rights issue, but no caselaw (yet)

• Recreational

• Federal legislation allows up to 4 plants

• Ontario legislation – must be 19 to cultivate

• Leaves open further regulation

Questions???

My time is up!Thank you!