Cannabis, the law, and housing

Transcription

1 Cannabis, the law, and housing Lauren Blumas, Iler Campbell LLP December 6, 2017

2 Overview The medical marijuana framework right now Recreational cannabis - impending legalization Recreational and medical cannabis in housing Vaporizing and e-cigarettes Personal cultivation

3 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

4 The Cannabis Act April 13, 2017 introduction of Bill-C-45 (the Cannabis Act ) passed by the Housig of Commons on November 27, 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

5 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

6 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

7 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

8 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

9 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?

10 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

11 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

12 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.

13 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

14 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

15 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

16 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

17 Questions???

18 My time is up! Thank you!