The Historic Legalization of Recreational Cannabis
On June 21, 2018, almost three years after Prime Minister Trudeau first proposed that recreational cannabis ought to be legalized in Canada, the Federal government gave Royal Assent to An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Cannabis Act”). For the first time, the Cannabis Act gives the Federal government the ability to provide legal access to cannabis and to control and regulate its production, distribution and sale. This historic legislation reverses Canada’s long-standing prohibition against the recreational consumption and possession of cannabis (and cannabis derivatives), a legal position that previous governments had maintained for almost nine (9) decades.
The Cannabis Act – Legal(ish)
Although the Cannabis Act has received Royal Assent, it does not yet have the force of law. However, on June 20, 2018, Prime Minister Trudeau announced that October 17, 2018 would be the formal, Canada-wide “legalization date” for cannabis (i.e. the date that the Cannabis Act “comes into force). This means that the recreational use of cannabis is only one small step away from becoming legally permissible in Canada.
At present, existing laws prohibiting the production, sale and consumption of recreational cannabis will continue to be enforced until the Cannabis Act comes into effect.
Pursuant to the Cannabis Act’s transitional provisions, Provincial governments will have between eight (8) and twelve (12) weeks after the law comes into force to ramp up for the sale of recreational cannabis. As we have written about in previous posts, Ontario was one of the first provinces to begin this process in 2017. Notably, Ontario has already significantly amended laws that relate to consuming cannabis in public areas and workplaces, including the Smoke Free Ontario Act, 2017.
Once the Cannabis Act comes into force, individuals aged eighteen (18) or older will be legally permitted to possess up to thirty (30) grams of dried cannabis in a public place (provided, of course, the cannabis was “legally obtained”). Controversially, young persons aged twelve (12) to eighteen (18) will also be allowed to possess up to five (5) grams of “legally obtained” cannabis, before facing criminal charges.
The Cannabis Act – Key Features
The Federal government has made it abundantly clear that the purpose of legalizing cannabis is to restrict access (particularly for young people), and to drive organized crime out of the cannabis business. The statute contains the following general features:
A) Grow your own cannabis – The Cannabis Act permits households to grow four (4) of their own plants, provided those plants do not grow to a height of more than one (1) meter. This four (4) plant limit applies regardless of the number of adults that reside in the household. If an adult, or household, decides to grow less plants, or none at all, they are prohibited from transferring their “unused allotment” to anyone else.
Interestingly, the Cannabis Act does not prohibit outdoor growth of cannabis plants – the statute explicitly contemplates growing cannabis outdoors (i.e. in yards, greenhouses, gardens, etc.)
Further to the Senate’s final review of the Cannabis Act, Provinces and municipalities may step in and lower the number of plants that can be grown per household. In theory, these lower levels of government could also place restrictions on the ability to grow plants outdoors.
B) How much can be purchased – Adults will be able to possess up to thirty (30) grams of dried cannabis, or the equivalent amount in fresh or oil form as prescribed by the Cannabis Act, in public. The same limits apply to the amount of cannabis (and its derivatives) that adults can purchase at one time. While the thirty (30) gram limit is the nation-wide maximum, the Federal government has allowed Provincial governments the ability to lower this number if they wish to do so.
C) Advertising – The Cannabis Act sets fairly heavy restrictions on advertising but there are some notable loopholes that appear to be built into the statute. One relates to the ability to promote cannabis or cannabis accessories provided that the advertising will only be seen by those eighteen (18) years or older. Another exception to the advertising regulations is business-to-business advertising, which appears to be completely exempt from whatever restrictions may be implemented in the Federal government’s yet-to-be-drafted Regulations under the Cannabis Act.
The Cannabis Act and Bill C-46
The Cannabis Act’s companion legislation, Bill C-46 – An act to amend the Criminal Code (offences relating to conveyances) (“Bill C-46”), also received Royal Assent on June 21, 2018. Although much of Bill C-46 was directed toward motoring related offences, such as street racing, the Bill also significantly amends law enforcement mechanisms related to alcohol, cannabis and other controlled substances.
Bill C-46, significantly modifies existing impaired driving laws by giving police authorities new powers to conduct roadside intoxication tests, including oral fluid tests. During its penultimate review of Bill C-46, the Senate proposed a number of significant amendments to the Cannabis Act and Bill C-46 as a result of constitutional considerations and privacy concerns (bodily integrity, privacy of health information, etc.). After its third reading, the Senate passed its final version of the Bill, returning it to the House of Commons on June 18, 2018. Before doing so, the Senate amended the draft Bill C-46 to remove a significant provision which allowed police to conduct random roadside drug and alcohol tests. The Senate also sought to legally downgrade impaired driving offences so that they were not classified as “serious criminality” type offences, in an effort to protect foreign nationals and permanent residents from losing status or becoming inadmissible to Canada as a result of certain drug-related criminal charges. On June 18, 2018, the Federal government stated that it “respectfully disagreed” with many of the Senate’s changes to Bill C-46 (discussed in further detail below).
Bill C-46 has two component parts, both of which serve interrelated purposes. Part 1, which came into force alongside the Cannabis Act, was enacted to ensure that a robust drug-impaired driving regime was put in place before the legalization of recreational cannabis. Part 2, which will come into force on December 18, 2018, reforms the entire Criminal Code transportation regime as it relates to drug and alcohol-related driving offences.
A) Part 1 – Drug Impaired Driving
Bill C-46 supplements the existing drug-impaired driving offence under the Criminal Code by creating three (3) new offences for having specified levels of the drug in the bloodstream within two (2) hours of driving. The penalties issued would depend on the drug type, bloodstream levels of the drug, or the combination of alcohol and drugs in the bloodstream. These per se levels would be set by Federal Regulation, which have not been finalized as yet.
Bill C-46 gives the Federal Governor in Council the power to establish blood-drug concentrations. For THC (the main psychoactive ingredient found in cannabis), the Federal government has previously proposed the following levels:
- 2 nanograms (“ng”), but less than 5 ng – summary conviction criminal offence, punishable by a fine of up to $1,000 (e. the “warn range”);
- 5 ng or more – hybrid criminal offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases; and
- Combined THC and alcohol – having a blood alcohol level 0.05, combined with a THC level of greater than 2.5 ng within two (2) hours of driving would also be a hybrid offence.
Both types of hybrid offences would be punishable by monetary penalties of $1,000 for a first offence, and significantly escalating penalties for repeat offenders (e.g. thirty  days of imprisonment for a second offence, and one-hundred twenty  days for a third or subsequent offence). The maximum penalties would mirror the maximum driving penalties for impaired driving currently found in the Criminal Code (up to ten  years if the perpetrator is found to have committed an indictable offence under the Criminal Code).
Part 1 of Bill C-46 also gives law enforcement officials the ability to use oral fluid drug screeners. These handheld devices can determine whether a drug is present in oral fluid (saliva). Following a legal road side stop, a law enforcement official would be authorized to demand that a driver provide an oral fluid sample. A positive reading would assist in developing reasonable grounds to believe that a criminal offence has been committed. Once a law enforcement officer has reasonable grounds to believe an offence has been committed, they could demand a drug evaluation by an “evaluating officer”, or the taking of a blood sample at the police station.
By contrast to the Cannabis Act, Part 1 of Bill C-46 (the drug-impaired driving aspects of the Bill) came into force immediately after the legislation received Royal Assent. This means that, despite legalized recreational cannabis not yet being permitted, there are significant new restrictions in place with respect to drug-impaired driving. Practically, this means that law enforcement authorities will have the power to use new tools and enforcement mechanisms to test for drug-impaired driving.
B) Part 2 – Transportation Offence Reform (Drug and Alcohol Impaired)
Part 2 of Bill C-46 will significantly reform the entire Criminal Code regime dealing with transportation offences by repealing all of the current offence provisions and replacing them with modern variants (including all the new drug-impaired driving provisions of Part 1). Part 2 will, among other things:
- Authorize mandatory alcohol screening at the roadside where police have already made a lawful stop under provincial law or pursuant to common law;
- Allow the Federal government to increase certain fines and maximum penalties (by Regulation); and
- Permit for earlier enrolment in a provincial ignition interlock program.
At present (until the coming-into-force of Part 2 of Bill C-46), police need what is known as “reasonable suspicion” that someone is “impaired” before they can demand a breath sample. Said “reasonable suspicion” may be based on a number of factors such as slurred speech, impaired motor function, alcohol on a driver’s breath, or erratic driving. Pursuant to Part 2 of Bill C-46, law enforcement authorities will not need to have reasonable grounds to suspect impairment – they will ostensibly be able to mandatorily subject a driver to a breathalyzer test at any point.
This aspect of Bill C-46 has been openly opposed by the Criminal Lawyers Association. Several human rights watchdogs, including leaders of minority groups across Canada, have warned of impending constitutional challenges in the event that police authorities discriminate or profile certain individuals.
Part 2 of Bill C-46 will also amend the mandatory minimum penalties for impaired driving. Currently, the mandatory minimum penalties are:
- First Offence: $1,000 fine
- Second Offence: 30 days imprisonment
- Third Offence: 120 days imprisonment.
Part 2 of Bill C-46 will raise the mandatory fines for first offenders with high Blood Alcohol Content (“BAC”) readings, or who refuse to provide a sample:
- A first offender with a BAC of 80 to 119 mg of alcohol per 100 mL of blood would be subject to the current mandatory minimum fine of $1,000;
- A first offender with a BAC of 120 to 159 mg of alcohol per 100 mL of blood would be subject to a mandatory minimum fine of $1,500
- A first offender with a BAC of 160 mg of alcohol per 100 mL of blood or more would be subject to a mandatory minimum fine of $2,000; and
- A first offender who refuses testing would be subject to a mandatory minimum fine of $2,000.
Mandatory prison sentences for repeat offenders will remain same as they are under the current law – thirty (30) days for a second offence, and one-hundred twenty (120) days for a subsequent offence.
Part 2 will also raise the maximum penalty for impaired driving in cases where there is no injury or death to two (2) years on summary conviction (up from eighteen  months), and to fourteen (14) years on indictment (up from five  years). Offences that cause bodily harm will become hybrid offenses under the Criminal Code, allowing the Crown to elect to proceed summarily where injuries are less severe.
The maximum penalty for dangerous driving causing death will be increased to life imprisonment (up from fourteen  years). This would bring motoring related offences in line with maximums for other transportation offences involving fatalities.
Part 2 will also significantly amend the laws that relate to the application of “ignition interlock” programs. Currently, if a driver is charged with impaired driving, they are permitted to drive during the “period of prohibition” if they are admitted into a provincial ignition interlock program. An ignition interlock device prevents the operator’s car from starting if the driver has been drinking. Currently, the driver must wait for a specified period of time before a Province may consider an application.
Part 2 of Bill C-46 will reduce the amount of time before an individual can be enrolled in an ignition interlock program and drive. The waiting periods are as follows:
- (Potentially) no wait period for first offence, if approved by the Court;
- Three (3) months for a second offence;
- Six (6) months for a subsequent offence.
Employers: So Recreational Cannabis is Legal(ish) – Now What?
Many employers are wondering what workplace changes might be required as they brace for the impending legalization of cannabis. The answer to that question is, as usual, somewhat complex.
(i) Recreational Users
Many employers have in place policies and procedures to address (or prohibit) the use of legal, but restricted substances in the workplace. The law clearly supports an employer’s right to restrict the impairment from, possession, sale, distribution and use of cannabis in the workplace.
However, matters may become potentially complicated when an employer permits the use of certain restricted substances (such as alcohol) but seeks to prohibit others. It may be difficult for an employer to justify prohibiting employees from consuming cannabis at work-related events, particularly if the employer adopts a permissive approach to alcohol consumption.
At present, there is nothing technically or legally preventing an employer from permitting alcohol consumption while forbidding the recreational consumption of cannabis at work-related social events.
(ii) Medical Users
The accommodation process for an employee who is using medical cannabis is substantially similar to the accommodation process for an employee who is taking any form of prescription medication. However, a prescription for cannabis does not give an employee a right to use it in the workplace. Both the employee and employer are subject to certain obligations with regard to the use of medical cannabis in the workplace.
Generally, a prescription for medical cannabis does not entitle an employee to:
- Compromise their health and safety;
- Compromise the health and safety of others;
- Smoke within enclosed workplaces or designated public spaces (in violation of the Smoke Free Ontario Act, 2017);
- Abuse sick leave or emergency leave;
- Be impaired at work.
(iii) Safety Sensitive Work
Employers in safety sensitive industries should also have in place policies and programs to address the use of restricted substances, even if they are prescribed by medical practitioners. Health Canada has warned that employees may not be able to safely operate equipment and/or drive safely for up to twenty-four (24) hours after consuming cannabis. Moreover, there is very little clarity regarding the potential impairment caused by edible forms of cannabis (oils, foods, butters, etc.), and the duration of the impairment that consuming those variants of the drug may cause.
(iv) Drug Screening
There is no readily available screening device (government sanctioned, or otherwise) that can accurately establish the degree of an employee’s impairment due to cannabis use. Further, while devices are being tested by the Federal government and law enforcement agencies across the nation, it is clear that at present no method can determine with any degree of precision when cannabis was last used by an employee.
There have already been a number of recent decisions issued by Arbitrators in unionized workplaces, and social justice tribunals such as the Human Rights Tribunal of Ontario, which have contemplated the foregoing limitations. At present, the state of the law appears to be that employers are not required by human rights legislation to “tolerate” the risks posed by an employee’s “potential” impairment in a safety-sensitive context. In a safety sensitive environment, the health and safety concerns associated with accommodating an employee’s “potential” impairment as a result of cannabis use can constitute “undue hardship” pursuant to human rights legislation.
Key Takeaways for Employers
Unlike other recent legislative changes, the lead up to the legalization of cannabis has been long and well publicized. Accordingly, many employers may feel that they are prepared for the potential increase in recreational cannabis-use related issues at their workplaces.
That said, all employers should ensure that they have, at the very least, a policy in place that strictly addresses potential issues related to recreational cannabis consumption, possession and/or distribution in the workplace. In our view, an employer’s drug and alcohol policy should, at a minimum, include:
- A clear, strongly worded prohibition against the consumption, possession, distribution and being under the influence of alcohol and recreational cannabis at the workplace;
- A clear reference to the Code, and a statement that the employer will make provisions for those suffering from substance dependence, or addictions;
- Encouragement to employees that they should seek professional, medical assistance in the event of alcohol or drug dependency;
- A clear warning that law enforcement officials may be contacted if there is any unlawful drug or alcohol use at the workplace;
- Mechanisms for employees to report their use of any authorized drug that may adversely alter their behaviour, physical or mental capacity;
- Mechanisms for staff members to report the abuse of cannabis and other restricted substances by third parties at the workplace, without fear of repercussions (i.e. on an anonymous basis);
- A section addressing medical cannabis consumption, putting employees on notice that they have a binding obligation to report the use, and authorization for use (i.e. medical justification), dosage, THC concentration and timing of use to management before consuming cannabis before, during or after performing work.
As always, employers are responsible for communicating to employees that, while recreational use of cannabis may soon be legally permitted in Canada, the law does not authorize employees to be impaired at work nor will it give them the right to smoke cannabis in or near the workplace.
We will continue to report on this subject as the full implementation of the Cannabis Act and Bill C-46 continues over the coming months.
Co-authored by Tushar Anandasagar and Lucas Hendsbee.
Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.
Lucas Hendsbee is a Research Assistant at LeClair and Associates P.C. He provides research and analysis regarding all areas of the law, with a focus on regulatory compliance, policy analysis and emerging legal issues. For further information or discussion, please contact Lucas by email at Lucas@leclairandassociates.ca.
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