Medicinal & Recreational Marijuana: Hashing out the Legal Issues

Transcription

1 Medicinal & Recreational Marijuana: Hashing out the Legal Issues Brenda Stokes Verworn Retired Lawyer Oct. 20, 2017

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3 Session Outline: Political debate and legislative journey regarding cannabis Two different scenarios medical and recreational use of marijuana Medical Uses for Marijuana Effect of Marijuana on Youth Accommodation of Medicinal Marijuana in Schools & Workplaces Are schools safety sensitive workplaces? What policies and procedures should school boards have in place? Recreational Use of Marijuana Issues Student Discipline for Drugs Guidance from courts and tribunals

4 The Great Drug Debate: Legalization and Regulation of Cannabis from a World s Perspective Current: Young people possess & use it but costly to give criminal records Violent & greedy black market & organized crime No guarantee of quality or health standards in illegal grow ops Can legally brew own beer and grow own tobacco, so why not cannabis? Has been regulated in other countries & states

5 Future: Gov t regulated system from producer to consumer Maintains quality & health standards of product Pressure to increase availability to meet demand Opportunity for revenue and takeover by tobacco firms More cannabis laced food products & prime-time advertising Multi-billion dollar business so large tax base Marketing with Celebrities Law firm specialization and increased work for lawyers

6 What is the role of the government in the legalization of cannabis? Federal legislation will de-criminalize it Provincial legislation will regulate sale & distribution (age) Municipalities will deal with issues like zoning & set back requirements

7 Criminalization of Cannabis in Canada 1923 Cannabis added to schedule of former Opium & Narcotic Control Act (ONCA) 1961 ONCA replaced by Narcotic Control Act (NCA) 1996 NCA replaced by Controlled Drugs & Substances Act (CDSA) 2001 Use of Medicinal Marijuana legal in Canada and controlled by Marijuana Medical Access Regulations (MMAR) until Oct Mandatory minimum penalties added under CDSA 2014 No more licences under Marijuana Medical Purposes Regulation (MMPR) 2016 Following Allard decision MMPR struck down as unconstitutional and Access to Cannabis for Medical Purposes Regulation (ACMPR) enacted

8 Recreational Marijuana Dec. 13, 2016 Federal Task Force on Cannabis Legalization & Regulation published its Report with 80 recommendations for the Federal Gov t to consider in the legalization of recreational marijuana April 13, 2017 Bill C-45- The Cannabis Act April 13, Bill C-46 Act to Amend the Criminal Code

9 Under the Controlled Drugs & Substances Act (CDSA) the current state of the law is: possession of marijuana is still unlawful (unless you have a prescription under the Regulations) trafficking in marijuana is still unlawful Note: trafficking is very broadly defined to include to sell, give or distribute etc

10 Marijuana or Cannabis Cannabis is the flower of the hemp plant Products from the flower: marijuana, hash oil, hash resin Cheap to grow High maintenance since vulnerable to pests, moulds & mildew Can be ingested (capsule or oil form), dried or smoked or incorporated into various edible or topical cannabis products THC v. CBD Lots of strains Pungent odour

11 What is the allure of drugs to young people? natural curiosity risk taking behaviour peer pressure connection with celebrity figures coping mechanism may impact on travel ban to USA

12 What is the health effect of marijuana use? psychomotor & cognitive deficits associated with marijuana use include decreased ability to respond quickly, decreased motor control, visual disturbances, hallucinations, inability to concentrate and inability to drive safely ; linked to bronchitis, chronic cough & wheezing higher risk of adolescents/young adults developing psychotic symptoms or disorders in adulthood (ie schizophrenia) cannabinoid hyperemesis syndrome (cyclical vomiting, cold sweats, dizziness & nausea) that is only cured by avoiding marijuana doctors agree that marijuana use has a permanent impact on brain development for persons under age 25

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14 Effect of Cannabis on Driving Health Canada Guidelines say no driving for 4 hours if smoked marijuana; no driving for 6 hours if swallowed marijuana and no driving for 8 hours if had feelings of euphoria. Overall impairment may last as long as 24 hours. 1 in 3 drivers that are fatally injured tested positive for drugs Ontario plans to introduce new penalties and longer suspensions for drug-impaired drivers

15 What is medical marijuana prescribed to treat? treatment of various medical conditions (disabilities) like epilepsy, chronic pain, ADD, Crohn s Disease, MS, fibromyalgia, migraines, arthritis, back & neck problems, nausea linked to chemo, sleep disorders and terminal illnesses. over 30 strains of cannabis are used to treat different conditions; some strains have a lower THC and a higher CBD

16 Medical Use of Marijuana Obtain medical prescription from doctor As of Aug. 24, 2016 medical use of marijuana is controlled through the new Access to Cannabis for Medical Purposes Regulation (which replaces the old Marijuana for Medical Purposes Regulation dating back to 2001) It provides a framework for people to purchase from a licensed provider or produce small amounts of cannabis for their personal medicinal use if they have a prescription authorizing the use of marijuana. Production Area not to be adjacent to schools, daycares, playgrounds

17 Do employers need to accommodate staff with MM prescriptions? Yes employers have a legal duty to accommodate employees with disabilities under the Human Rights Code to the point of undue hardship may need to accommodate by modifying job duties or work schedule or providing a temporary LOA reasonable accommodation not employee s preferred accommodation safety sensitivity is a factor but depending on THC level and nature of job duties there may be no need for accommodation at all.

18 School Board/Employer Policies focus on impairment and safety, not zero tolerance require employee disclosure of any medications which might impact their ability to perform their work duties safely policy should include consequences for non-compliance Policy can be based on Canadian Model for Providing a Safe Workplace Drug & Alcohol Standard.

19 What should an employer do if an employee discloses MM use? discuss confidentially obtain information: - proof of their prescription - prescription should identify the daily gram intake & period of use - when will they need to take the product - how much of the product will they need to take - will they be taking it at work - where will they take it - how will they take it - how long do they anticipate needing to take it tailor the accommodation to your workplace and the employee s needs

20 What about safety-sensitive job positions? the term safety-sensitive is not defined is teaching a safety-sensitive occupation? range of different job titles/ employee duties within a School Board that may not involve direct interaction with students challenge the OSSTF Functional Abilities Form oil and gas industries are seen as sensitive worksites because of the highly flammable materials they are transporting

21 Key Issue for both MM users and recreational users is impairment not usage is the person capable of performing their duties or not? if yes capable, then if MM user may have to be accommodated, but if recreational user could terminate without cause by providing reasonable notice or pay in lieu. unlike MM users, recreational users do not currently benefit from statutory or common law protections relating to accommodation if not capable due to impairment, then employer will likely need to use progressive discipline before termination

22 How to determine impairment: unlike alcohol, no breathalyzer test for marijuana no test to show level of marijuana impairment THC can stay in body for 30 days, so any test would just show usage but not if prior or current impairment. Canadian gov t has issued a 12 point evaluation for determining drug impairment of motorists to be administered by specially trained & certified police officers called DRE (Drug Recognition Experts) who based on their observations of impairment can require a person to provide a blood or saliva sample. DREs have been deemed to be expert witnesses (R. v Bingley SCC Feb 23, 2017) Fatal Vision Goggles are a tool School boards can use to demonstrate simulated drug impairment levels to students.

23 Insurance Benefit Coverage for Medicinal Marijuana rare in Canada to get coverage marijuana is a controlled substance so can t be covered under regular supplementary benefit coverage because Health Canada have not yet given it a Drug Identification Number (DIN) check wording of collective agreements and benefit plans SunLife approval for Jonathan Zaid cannabis is cheaper than other insured drugs like opiods (OxyContin) insurance company premiums for smokers

24 Ontario 2006 Smoke-Free Ontario Act Bill 178 Smoke-Free Ontario Amendment Act passed June 9,2016 Bill 45 Making Healthier Choices Act passed May 26,2015 regulates the sale of e-cigs (like tobacco) and bans their sale to anyone under age 19 and prohibits their use in public places and restaurants.

25 Student Discipline in Ontario Schools: s.265 Education Act Duty of Principal to maintain order & discipline Reg. 298 s. 11(1) (a) & (n) instruction & discipline in school and report pupil infractions to parents/guardians s.301 Education Act Minister may establish a code of conduct regarding behaviour of all persons in schools s.302(1) Education Act Every School Board shall establish policies and procedures/guidelines re:conduct of persons in schools s.301(6) Education Act Minister may establish policies and guidelines with respect to discipline of pupils, which must contain certain things ( See PPM 128,141,142,144,145 at s.302(2) Education Act Every School Board shall establish policies and guidelines re: discipline of students

26 Student Discipline for Drug Possession: Suspensions under the Ontario Education Act s.306(1)- A principal shall consider whether to suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate. 2. possessing alcohol or illegal drugs OR 7. any other activity for which a principal may suspend a pupil under a policy of the board. A suspension can be between 1 20 days, but if more than 5 days in length then the school must assign the student to a program for suspended students, which is optional to attend.

27 Student Discipline for Drug Trafficking: Expulsion under the Ontario Education Act s.310(1) 5 Education Act Trafficking in weapons or in illegal drugs is an expellable offence s.310(1) 8 Education Act any other activity under Board policy A principal may suspend a student for certain activities while at school, or a school-related activity or if it impacts on the school climate and then recommend an expulsion to the Student Discipline Committee (Panel of 3 Trustees) for the student to be expelled from one school or all schools of the board. If expelled, the student must complete the alternative education program provided for suspended and expelled program. Note: definition of trafficking is very broad

28 Student Discipline for Drug Possession or Trafficking: under the Ontario Education Act What will happen after July 1, 2018 if marijuana is no longer an illegal drug for those persons age 12 and over to possess? Can the school board still have an enforceable discipline policy prohibiting possession or trafficking on school property?

29 Will the new legislation really keep marijuana out of the hands of children and profits out of the hands of organized crime?

30 Case Law to Review and Consider: R. Smith (SCC) Allard v. Canada (Federal Court) Hitzig v. Canada (2003) Ont. CA Wilson v. Transparent Glazing Systems Ltd.( B.C) Entrop v. Imperial Oil Limited (2000) (Ont.) Suncor Energy Inc v. Unifer Local 707A (Alberta Q.B) Walker v. Imperial Oil Limited (Alberta) Ron Francis v.rcmp (New Brunswick) Mielke v. Entrec Corp. City of Calgary v. CUPE 37 (2015) Alberta Arbitration

31 Case Law Continued: De Pelham v. Rain for Rent Canada ULC (2014) Old v. Ridge Country Contracting Ltd (2015) B.C. Tribunal Gibson v. Ridgeview Restaurant Limited (2012) Ivancicevic v. Ontario Consumer Services (2011) Ont. H.R.Tribunal French v. Selkin Logging (2015) B.C. H.R.Tribunal Ontario Nurses Association & London Health Science Centre (Grievance of BS) IBEW Local 1620 v. The Lower Churchill Lower Transmission Employee Association Inc. (2016) Nfld & Labrador Sup.Crt (Trial Division) Corp. of City of Hamilton & Hamilton Professional Firefighters Association (2016) Ont.

32 Ontario s Plan for Legalized Marijuana in 2018 LCBO Model min. age to purchase recreational marijuana is age 19 police will confiscate small amounts of cannabis from persons under age 19 but the focus will be on education/prevention/harm reduction and not on criminal prosecution. use of recreational marijuana prohibited in workplaces & public places LCBO will oversee the legal retail of cannabis in Ontario through new stand-alone cannabis stores (150 by 2020) and an online order service (available July 2018) through a site run by the LCBO LCBO stores selling cannabis won t be selling alcohol

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