Cannabis And Cars – Highs And Lows Of Defending A Driver That Consumed Cannabis In Tort Litigation Like alcohol-impaired driving, drug-impaired driving is a criminal offence. Cannabis-impaired driving can result in injury or death for the driver, passengers or others on the road including pedestrians and other drivers. Cannabis: impairs judgment impairs the ability to react increases the chances of being in a crash[i]. The combination of alcohol and cannabis can further exacerbate the impairment. In 2018, the Criminal Code of Canada was changed to allow possession of marijuana for recreational use but Bill C-46 created new criminal offences for driving while impaired by tetrahydrocannabinol (THC), the active ingredient in marijuana. These new offences are based on the level of THC in a person’s blood within two hours of driving. Alcohol The prohibited blood-alcohol concentration (BAC) is 80 milligrams (mg) or more of alcohol per 100 millilitres (ml) of blood. Cannabis (THC) There are two prohibited levels for THC, the primary psychoactive component of cannabis: it is a less serious offence to have between 2 nanograms (ng) and 5 ng of THC per ml of blood. It is a more serious offence to have 5 ng of THC or more per ml of blood. Combination of alcohol and cannabis The prohibited levels of alcohol and cannabis, when found in combination, is 50mg or more of alcohol per 100ml of blood and 2.5 ng or more of THC per ml of blood. Other drugs Having any detectable amount of LSD, psilocybin, psilocin (“magic mushrooms”), ketamine, PCP, cocaine, methamphetamine or 6-mam (a metabolite of heroin) in your system within two hours of driving is also prohibited. The prohibited level for GHB is 5mg or more per litre of blood since the body can naturally produce low levels of this drug. A challenge however, is that THC can sometimes be detected in a person’s blood even 30 days after they consumed cannabis. Impaired Driving Has Tort Implications While charges are not admissible evidence in tort litigation, criminal convictions are admissible evidence of wrongdoing. Accordingly, any criminal conviction is problematic to the defendant driver. Where there were no convictions, then the usual rules of negligence will dictate exposure. An area to consider when mounting a defence is to determine in what format was the cannabis consumed? For example, was it inhaled? Was it in the form of a baked good? A gummy? Was any alcohol consumed? What prescription medication was the driver taking? Different formats have different effects on different timeframes. When was it was consumed? During the car ride? 2 hours before the car ride? The night before? THC, the psychoactive ingredient, takes time to leave the system and its metabolized carboxyTHC takes even longer – some say it can even take up to a month. Accordingly, any test that is positive for carboxyTHC is arguably only evidence that cannabis had been consumed and not that the driver was impaired by cannabis. Assessing the impact of cannabis is far more complicated than assessing the impact of alcohol. While, alcohol levels are correlated to impairment, the same is not true of cannabis. Another area to consider once cannabis consumption has been raised is to determine the level of the driver’s impairment. What was the driver’s condition? Were the driver’s eyes bloodshot? Glassy? Pupils dilated? Did the driver have balance issues? Slurred speech? Confusion? Inappropriate responses? Delayed responses? Was the driver tired, sleepy? A final area to consider is whether the accident was caused by marijuana impairment or by some other factor. For example, was there poor lighting, was there black ice, did another driver do something that triggered the accident, did an animal jump out of the road unexpectedly etcetera. It may be there were other causes to the accident that had nothing to do with impairment. In order to defend a driver about the effect of the cannabis consumed, witness statements from everyone that had contact with the driver at the scene will be useful to determine whether or not the driver exhibited any evidence of impairment. A toxicologist expert will also be necessary to determine the levels of cannabis and the anticipated effects or lack thereof in the particular circumstances. An accident reconstruction may be considered as well. This area is developing. There have been criminal trials dealing with impairment, there have been labour decisions, human rights decisions and union arbitrations that are starting to consider and challenge the consumption versus impairment issues. I expect court decisions in the tort context will follow but the litigation process is longer and has been slowed down due to COVID. [i] Cannabis impairment – Canada.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, COVID-19, Insurance DefenceDecember 17, 2020March 13, 2024
MOVING CANNABIS: The Canadian Perspective This blog is co-written by our former articling student, Janet Son. On October 17, 2018 Cannabis became legal in Canada. The federal Cannabis Act[1] sets out the terms and conditions, which are uniform across Canada. It deals with the production, sale, distribution and possession of cannabis. Provinces have power to deal with how it is distributed, sold and can add restrictions; hence there are variances in each province. In Canada there is a need for a federal license to grow and sell cannabis for medical and recreational purposes. Those with licenses are called Licensed Producers[2]. Those who wish to sell cannabis are required to be licensed as well. The provinces provide retail licenses. As with alcohol, in Ontario the Alcohol and Gaming Commission in Ontario is in charge of the retail licensing process and the sale of recreational marijuana in private stores. In the spring of 2019, 25 retail stores were opened in Ontario.[3] With the legalization of the cannabis industry and the establishment of stores comes the need to transport cannabis. The Cannabis Act set out a comprehensive scheme for the transportation and delivery of cannabis. There are many distribution prohibitions that are accompanied with heavy penalties; however there are exceptions. Is it Cannabis? The first question the transportation company needs to ask is what is it planning to move? Is it cannabis? The Cannabis Act, defines cannabis as a plant and those items listed in Schedule 1 of the Cannabis Act, but not those parts of the plant listed in Schedule 2 of the Act. Schedule 1 includes: Any part of a cannabis plant, including the phytocannabinoids produced by, or found in, such a plant, regardless of whether that part has been processed or not, other than a part of the plant referred to in Schedule 2 Any substance or mixture of substances that contains or has on it any part of such a plant Any substance that is identical to any phytocannabinoid produced by, or found in, such a plant, regardless of how the substance was obtained[4] Schedule 2 indicates that the following are NOT included in the definition of cannabis: A non-viable seed of a cannabis plant A mature stalk, without any leaf, flower, seed or branch, of such a plant Fibre derived from a stalk referred to in item 2 The root or any part of the root of such a plant[5] Is the Cannabis Legal? The Cannabis Act defines illicit cannabis as cannabis that is or was sold, produced or distributed by a person prohibited from doing so under Cannabis Act or any provincial act or that was imported by a person prohibited from doing so under this Act.[6] Legal advice will be needed as there are many nuances under the Cannabis Act and its regulations that will need to be considered. Below are some initial areas to consider. Restrictions on Possession and Distribution Sections 8 and 9 of the Cannabis Act sets out the restrictions on possession and distribution of cannabis. Among other things, unless authorized, it is illegal for a person or organization to possess or move more than 30g of dried cannabis[7] (as defined by Schedule 3 of the Act) in a public place, to distribute to an organization, or to distribute cannabis it knows is illicit.[8] We expect that there will be extensive litigation in this regard and particularly around what a court will deem a defence to distribute cannabis it “knows” is illicit. This will be an expensive proposition for those who need to defend such cases. It should also be pointed out that the Act’s definition of a public place includes a motor vehicle.[9] Punishments can include lengthy imprisonment and hefty fines. The Cannabis Act defines distribution as administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute.[10] The Cannabis Act allows for the distribution of Cannabis in certain circumstances. It needs to be produced by a Licensed Producer. Everyone in the transportation industry must make sure that the cannabis they are transporting is legal. The Cannabis producer must be specifically licensed. Where two conditions are met, the Cannabis Act allows for transportation of cannabis. The requirements are that (1) parties are acting as agents or contractors on behalf of Licensed Producers[11] and (2) the activity is authorized by provincial legislation.[12] This allows for the transportation of cannabis on behalf of Licensed Producers in compliance with the Licensed Producers regulatory conditions. Legal advice is recommended to anyone planning to transport cannabis to make sure it is legal. Is the Producer a Licensed Producer In order to legally cultivate, process or sell cannabis for medical or recreational purposes, a company must have a federal license. Those players with licenses are referred to as Licensed Producers.[13] Retail Licenses It should be noted that the provincial governments regulate the process for making recreational cannabis available forCannabis Act sale.[14] Agent or Contractor on behalf of Licensed Producer The regime allows agents or contractors to transport cannabis on behalf of Licensed Producers so long as the distribution is in compliance with the Cannabis Act and its Regulations. This is an important exception to the limitations on possession and distribution. This allows the movement of legal cannabis products at its various stages across Canada. The transportation companies will need to make sure they are in compliance with the conditions that the Licensed Producers are required to adhere to. Compliance In agreeing to transport, a company should request a copy of the license and a warranty that the Licensed Producer is in compliance with its own obligations. The transport company should also make sure it is complying with the regime and therefore legal advice should be sought in this regard. Cannabis Tracking System An aspect of the regime that a transporter needs to consider is compliance with the Cannabis Tracking System.[15] This is required by the Cannabis Act. This system is intended to monitor the flow of cannabis and to ensure that only the designated amount of legal cannabis is flowing. The Cannabis Tracking System requires monthly reporting by Licensed Producers, inventory reporting and reporting from health care practitioners. The obligations of the transporters needs to be determined and needs to comply with this regime. Cannabis Transportation Issues Cannabis and its products can be very delicate. There can be light issues, heat issues and moisture issues that can damage the product. More importantly, it is a high value to weight product that has significant demand on the black market and therefore is a target for theft. Consideration therefore needs to be made to transporting the products with the necessary type of vehicle that can supply the necessary conditions and security needed to keep the product safe and viable. Damage to the product and theft will lead to significant expenses for companies and/or its insurers. From a theft perspective, transport companies should weigh the pros and cons of unmarked trucks, versus armoured trucks, versus security guard escorts, versus police escorts. They should also consider the number of drivers per truck, predetermined or blind routes and geo-tracking shipments. While there is little regulation in this regard, the costs associated with theft for companies and the risks prevention measures an insurer may impose will likely create a standard that exceeds any regulations. Importing and Exporting Cannabis Under the Controlled Drugs and Substances Act[16] importation and exportation are considered to be illegal unless otherwise authorized by regulation or an exemption. Cannabis is a controlled substance. In general, controlled substances or precursors may only be imported or exported into Canada by a licensed dealer, licensed producer or registered dealer and each shipment must be accompanied by a valid import or export permit.[17] All permits carry an issuance and expiry date and are only valid for a onetime specific shipment of a controlled substance, cannabis or a precursor. It may only be imported into or exported out of Canada at the port and to the place specified on the permit.[18] The import and export of cannabis may only be authorized for medical and scientific purposes and within the parameters set by the international drug conventions. The import and export provisions for cannabis implement Canada’s international drug treaty obligations. Canada is a Party to the Single Convention on Narcotic Drugs, 1961 as amended by the 1972 Protocol[19], the Convention on Psychotropic Substances, 1971[20], and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988[21]. Health Canada has an obligation to maintain control over the movement of cannabis in a manner consistent with these international drug control conventions.[22] Accordingly, cannabis can only be imported or exported for medical and scientific purposes but not for recreational purposes. These rules apply whether Cannabidiol (“CBD”) or Tetrahydrocannabinol (“THC”) is being imported or exported. Some hemp products that meet certain criteria, may have different restrictions. Legal advice and consultation with Health Canada as well as other appropriate regulatory bodies is necessary to avoid the risk of penalties in the event the products do require permit.[23] The import or export of industrial hemp grain or seed also require an import or export permit issued under the Industrial Hemp Regulations.[24] Importing and Exporting Cannabis Only Licensed Producers with a valid Health Canada permit can import Cannabis products into Canada and only for commercial use.[25] The Cannabis Act bans cannabis imports for recreational use. A Licensed Producer requires a permit from the federal Ministry of Health to export Cannabis. It can only be transported to the designated source. At this time, only cannabis for medical and scientific purposes can be exported into countries that allow cannabis to be imported.[26] Transportation of Imported and Exported Cannabis The import and export is a large growth area and it requires transportation. Shipments of dried cannabis tripled to 1,460 kilograms (3,219 pounds) in 2018, compared with 500 kilograms in 2017 and only 44 kilograms in 2016.[27] Organizations are discussing declassifying cannabis but to date that has not taken place.[28] With less restrictions, there can be an increase in import and export. Canada is one of the first countries to legalize recreational marijuana. Other countries are starting to allow for the use of cannabis for medical purposes, so demand for transporting product will increase. As countries legalize recreational marijuana then the demand for transporting product will be even higher. There are significant issues about importing and exporting to the United States. At the federal level, cannabis remains a controlled substance, but more states are voting to legalize marijuana in one form or another.[29] The United States does not even allow for interstate transportation of hemp, hemp derived products and CBD.[30] This is unfortunate, given the United States is Canada’s closest neighbor and natural trading partner. That being said, some progress is being made. Two Canadian companies made some headway, legally shipping marijuana from Canada to the United States. Tilray received approval from the U.S. government to export a cannabinoid product to California for a clinical trial in September 2018. The DEA approved a shipment of legal medical cannabis from Canada’s Canopy Growth to a research partner in the U.S.[31] This is an industry with heavy regulation, but will hopefully get easier to navigate with time. In the interim, advice from insurance brokers, insurers and lawyers are strongly recommended to navigate the regime without any unpleasant expensive surprises. [1] The Cannabis Act, S.C. 2018, c. 16 [the “Cannabis Act”]. [2] Ibid at s 160.1(1). [3] “First allocation of stores – Expression of Interest Lottery” Alcohol and Gaming Commission of Ontario, online: <https://www.agco.ca/cannabis/cannabis-retail-lottery> [4] The Cannabis Act, supra note 1 at Schedule 1. [5] Ibid at Schedule 2. [6] Ibid at s 2(1). [7] Ibid at Schedule 3. [8] Ibid at s 9(1). [9] Ibid at s 2(1). [10] Ibid at s 2(1). [11] Ibid at s 71(2). [12] Ibid at s 72(2). [13] Ibid at s 160.1(1) [14] Cannabis Licence Act, 2018, SO 2018, c 12, Sched 2. [15] The Cannabis Act, supra note 1 at ss 81-83. [16] Controlled Drugs and Substances Act, SC 1996, c 19. [17] CBSA Memo D19-9-2, supra note 16. [18] Ibid. [19] Single Convention on Narcotic Drugs, 1961 as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961 (entered into force 8 Aug 1975). [20] 1971 Convention on Psychotropic Substances, 21 February 1971 (entered into force 16 Aug 1976). [21] United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988 (entered into force 11 Nov 1990). [22] “Import and export of cannabis by licence holders under the Cannabis Regulations”, Health Canada (last modified 12 August 2019), online: <https://www.canada.ca/en/health-canada/services/cannabis-regulations-licensed-producers/import-export.html> [Health Canada] [23] “Can CBD Oil Be Imported Into Canada?” BorderBee (21 May 2019), online: <https://borderbee.com/2019/05/21/cbd-oil/> [BorderBee] [24] Health Canada, supra note 23. [25] “What does the future hold for cannabis importing into Canada?” BorderBee (19 October 2018), online: <https://borderbee.com/2018/10/19/future-hold-cannabis-importing-canada/> [26] The Cannabis Act, supra note 1 at s 62(2). [27] Matt Lamers, “Canadian medical cannabis exports tripled last year, as race for European market position intensifies” (21 March 2019), online: <https://mjbizdaily.com/canadian-medical-cannabis-exports-tripled-in-2018/> [28] Subramaniam, supra note 24. [29] Nathan Reiff, “Marijuana Companies That Legally Export Cannabis to the U.S.” (15 Jan 2020), online: <https://www.investopedia.com/insights/marijuana-companies-legally-export-cannabis-us/> [Reiff]. [30] Ian Stewart “Federal Courts Are Split on the Legality of Transporting Hemp and CBD in Interstate Commerce” (19 Feb 2019), online: <https://www.cannabisbusinessexecutive.com/2019/02/federal-courts-are-split-on-the-legality-of-transporting-hemp-and-cbd-in-interstate-commerce/> [31] Reiff, supra note 31. By Fauzan SiddiquiBlog, Cannabis LawApril 8, 2020September 30, 2020
Medical Marijuana: Limits to Consumption in Unionized Workplaces A recent labour arbitration decision from Saskatchewan has framed what might be the boundaries around workplace consumption of medical marijuana. In Kindersley (Town) v Canadian Union of Public Employees, Local 2740, 2018 CanLII 35597 (SK LA), an employee was dismissed for vaping medical marijuana while operating the employer’s vehicle. The employee had previously disclosed to his employer that he had had a prescription for medical marijuana and was allowed to vape marijuana in the workplace. The employee was not allowed to operate his employer’s vehicle for approximately 30 minutes following vaporization of marijuana. He was also not permitted to operate heavy machinery for 1 hour after vaping. The employee was later discovered to have been vaping while driving and immediately before driving. As a result, the employer summarily dismissed the employee. The employee’s union filed a grievance challenging the summarily dismissal. The arbitration board held that, despite the lack of proof of the employee’s impairment on a balance of probabilities, the vaping of marijuana immediately prior to and while operating the vehicle entitled his employer to summarily dismiss him. The board also emphasized the fact that the employee appeared to lack respect for the limits of his employer’s medical accommodation of him, and cared little for the safety of his coworkers by vaping while other employees were in the vehicle with him. The arbitration board found the decision to summarily dismiss was not excessive discipline. The board noted that while the employee should not be deprived of using marijuana for the medical purpose intended, ultimately “there is no reason he could not have done this more discreetly rather than in the presence of his co-workers and while driving.” What does this case tell us? While it is a Saskatchewan decision, the same principles apply in Ontario: having a prescription for medical marijuana is not a free licence to consume it whenever and wherever you like, particularly while working for an employer. Moreover, even if your employer has expressly accommodated you by allowing you to consume marijuana in the workplace, not adhering to the terms of that accommodation could result in dismissal without notice. It is also important to note this case applies to unionized employees, who have greater protections from dismissal than non-unionized employees. This suggests that, in a non-unionized workplace, the threshold for misconduct meriting dismissal based on the consumption of medical marijuana could be lower. According to Ontario’s human rights laws, all employers must accommodate employees with a disability to the point of undue hardship. This accommodation could include allowing employees to use medical marijuana while at work. However, employees must comply with the limits of their employer’s accommodation, so as to avoid undesirable disciplinary measures. If you would like more information about these amendments, or would like legal advice to ensure your place of work is compliant, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis LawJune 14, 2019July 5, 2023
Medical Marijuana: Limits to Consumption in Unionized Workplaces A recent labour arbitration decision from Saskatchewan has framed what might be the boundaries around workplace consumption of medical marijuana. In Kindersley (Town) v Canadian Union of Public Employees, Local 2740, 2018 CanLII 35597 (SK LA), an employee was dismissed for vaping medical marijuana while operating the employer’s vehicle. The employee had previously disclosed to his employer that he had had a prescription for medical marijuana and was allowed to vape marijuana in the workplace. The employee was not allowed to operate his employer’s vehicle for approximately 30 minutes following the vaporization of marijuana. He was also not permitted to operate heavy machinery for 1 hour after vaping. The employee was later discovered to have been vaping while driving and immediately before driving. As a result, the employer summarily dismissed the employee. The employee’s union filed a grievance challenging the summarily dismissal. The arbitration board held that, despite the lack of proof of the employee’s impairment on a balance of probabilities, the vaping of marijuana immediately prior to and while operating the vehicle entitled his employer to summarily dismiss him. The board also emphasized the fact that the employee appeared to lack respect for the limits of his employer’s medical accommodation of him, and cared little for the safety of his coworkers by vaping while other employees were in the vehicle with him. The arbitration board found the decision to summarily dismiss was not excessive discipline. The board noted that while the employee should not be deprived of using marijuana for the medical purpose intended, ultimately “there is no reason he could not have done this more discreetly rather than in the presence of his co-workers and while driving.” What does this case tell us? While it is a Saskatchewan decision, the same principles apply in Ontario: having a prescription for medical marijuana is not a free licence to consume it whenever and wherever you like, particularly while working for an employer. Moreover, even if your employer has expressly accommodated you by allowing you to consume marijuana in the workplace, not adhering to the terms of that accommodation could result in dismissal without notice. It is also important to note this case applies to unionized employees, who have greater protections from dismissal than non-unionized employees. This suggests that, in a non-unionized workplace, the threshold for misconduct meriting dismissal based on the consumption of medical marijuana could be lower. According to Ontario’s human rights laws, all employers must accommodate employees with a disability to the point of undue hardship. This accommodation could include allowing employees to use medical marijuana while at work. However, employees must comply with the limits of their employer’s accommodation, so as to avoid undesirable disciplinary measures. If you would like more information about these amendments, or would like legal advice to ensure your place of work is compliant, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Employment LawJune 5, 2019July 5, 2023
Update: “Taking the High Road” – Crossing the Canada/US Border following the Legalization of Cannabis In our previous blog post, we discussed the serious implications of cannabis affiliation at the U.S. Border. With the very recent legalization of cannabis, this topic has also made headlines. Many Canadians are concerned that they will be banned for life from the U.S. if they admit to smoking cannabis, presently, or in years past. Canadians are also worried about admitting their ties to cannabis producers or retailers, whether these ties are in the form of one’s employment or one’s investments (or maybe even both). Cannabis use is not federally legal in the U.S., which means Canadians are right to be concerned. Canadians should never take cannabis across the border, as this could result in very serious consequences. Border officers have full discretion, and they allow entry into the U.S. based on the circumstances of each traveller. Should you be in possession of cannabis at the U.S. Border – even unintentionally – or should you admit to any association with the drug, officers may choose to ban you for 5 years, or indefinitely, depending on the severity of the situation and the amount of cannabis at issue. Importantly, a determination of inadmissibility is not easy to overcome. Canadians who do find themselves banned can apply for a temporary waiver to allow entry, but the process can take up to a year, and the waiver must be renewed every so often. On October 10, 2018, the U.S. Government released a statement, clarifying that Canadians who are employed in a legal cannabis industry are generally allowed to enter the US for non-work purposes (i.e. reasons unrelated to the cannabis industry). If you are granted entry into the U.S., you must know that you cannot bring any cannabis back into Canada from the U.S., just as you cannot bring any Canadian cannabis into the states. This is a steadfast rule: it even applies when you purchased the cannabis in a state which the drug has been legalized. If you “accidentally” have cannabis in your car upon entering Canada, declare it to Border authorities. It will be seized but that is preferred to being charged for attempting to smuggle. It is important that Canadians consider and evaluate the risks in even attempting to cross the U.S. Border, as a result of their connections to the cannabis industry. Transportation within Canada can be done a lot more freely, due to the recent legalization, though there are still some restrictions (transportation of cannabis within Canada is limited to 30g). For more information about how the recent legalization of cannabis could affect your chances of crossing the U.S. Border and how Devry Smith Frank LLP’s Immigration lawyers can assist with your immigration law matter, please contact one of our immigration lawyers. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, ImmigrationOctober 23, 2018June 16, 2020
Cannabis: Legislation passed For Legalization – But What Happens Next? On October 17, 2018, the historic formation of a new industry was birthed and the decriminalization of cannabis and its recreational use was finally introduced. A day whereby some thought would most certainly never be the case, however, the general perception of liberalism in Ontario may, in actual fact, not be as unrestricted as one may think. So, what does it mean exactly? – Inevitably, despite months of deliberation, the concept of what constitutes full legalization is still lacking clarity and for that reason alone, it should be acknowledged that there are some considerations that one ought to possibly observe when possessing and partaking in recreational use of cannabis legally. Nonetheless, three main issues still seem to be at the forefront of peoples minds: Selling Cannabis Unless you are a licensed retailer, you are prohibited from selling Cannabis to other individuals. As tempting as it may seem to sell a gram or two to a friend, it is strongly advised you obtain the proper licensing beforehand, or you run the risk of a possible custodial sentence and/or a hefty fine. You can, however, give the cannabis away, to an adult friend, without the expectation of remuneration, on the basis that it is less than 30 grams worth. Travelling with Cannabis As a Canadian, you may be able to travel with the stipulated amount of up to 30 grams of cannabis on domestic flights only. Yet, if you intend to cross over into international territory, it is still a criminal offence to have it on your person. – Even if you are intending to end your journey in a legalized US state. Driving It is illegal, under the Criminal Code of Canada , to operate a vehicle while impaired by alcohol or drugs or where you have exceeded a certain level of alcohol or drug concentration in your blood. The legislation, Bill C-45, amended the Criminal Code such that police can now conduct roadside saliva tests on drivers they suspect to be under the influence of drugs and how you are reprimanded depends on the amount of THC detected. – Which can leave a trace for several hours after smoking cannabis? It is recommended that you avoid driving and consuming cannabis altogether to avoid these penalties. That said, indeed you can still be charged if you are found to be in violation of the Cannabis Act However, judging by the vagueness of this legislature, it would be fair to anticipate what might be deemed a few teething problems. Devry Smith Frank LLP will be monitoring the province’s efforts to adhere to and enforce the Cannabis Act in Ontario. If you have questions about cannabis laws or need advice understanding how the recent legislation will impact you both professionally and personally, please contact our office online or directly on (416) 449-1400 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Criminal LawOctober 20, 2018June 16, 2020
Taking the High Road: Canadians Crossing the US Border Many of our readers may be pleased about the soon-to-be legalization of marijuana. These same readers may find themselves feeling slightly relieved, as gone are the days where smoking pot also meant breaking the law. Right? Wrong. Although cannabis is about to become legal in Canada, there are still many important legalities that must be borne in mind, or else you could find yourself in some hot water. One of the biggest concerns immigration lawyers have, with regards to the legalization of marijuana, are the implications at the United States border. If a person admits to smoking marijuana, presently or in years past, or if a person admits to having ties to U.S.-based cannabis companies, they could be in serious trouble at the border and could find themselves banned from entering the U.S. – indefinitely. This is because the recreational use of marijuana is not yet legal federally across the United States. Unlike in Canada, criminal law in the U.S. is regulated state by state. In plain terms, what this means is that the consequences for committing a crime in the U.S. vary state by state, whereas in Canada, we are all subject to the same Criminal Code. When marijuana becomes legal in Canada, it’s legal everywhere in Canada, but in the U.S., only nine American states have legalized cannabis for recreational purposes. It is currently illegal under U.S. Federal Law. So while us Canadians may be free to use cannabis as we please, there’s a line to be drawn, and that line is at the U.S. border (which operates under U.S. Federal Law). According to the Canadian Border Services Agency, both the U.S. Customs and Border Patrol and the Canadian agency allow access to their respective countries based on the “circumstances” of each traveller. Unfortunately, some circumstances matter more than others to U.S. border agents. One such circumstance they aren’t a fan of includes those that link travellers to marijuana, whether through consumption or their employment. According to U.S. Customs and Border Patrol, if an individual works in the Canadian cannabis industry, he or she may be turned away from the border or banned from entering. As a case in point, a businessman from Vancouver was recently banned for life from the U.S. as a result of his investments in U.S. marijuana companies. Immigration lawyers across Canada have spoken out about the dozens of cases they have recently encountered where Canadians have been denied entry to the U.S. as a result of their connections to the cannabis industry. Some of these attorneys have gone so far as to advise their clients, who work with American marijuana companies, to not cross the border. If they do, they may be “aiding and abetting the U.S. marijuana industry,” which still is illegal. However, it is not just those who work or invest in the cannabis industry who may have difficulties in crossing the border. The federal prohibition of marijuana in the U.S. will continue to be a serious cause for concern for a lot of Canadians. For example, anyone who does so much as admit they have used cannabis may similarly be banned from the U.S. for life. The most famous example of this happening is with Ross Rebagliati, a Canadian Olympic snowboarder. Rebagliati was banned from the U.S. for simply admitting that he had used marijuana in the past. Not surprisingly, a denial of entry could have serious ramifications for those who are travelling to the U.S. for business or to be reunited with their families. In one case in particular, three individuals from Vancouver who were looking to sell agricultural equipment to a cannabis business in Washington State (where cannabis happens to be legal) were banned from the U.S. for life, and of course, they didn’t make the sale. Once the recreational use of marijuana becomes legal, it should come as no surprise that more and more Canadians will likely begin to consume the once illegal substance. And with more consumers comes more concern. The more people using marijuana in Canada means there is a greater possibility that more people would be barred from entering the U.S., either temporarily or permanently. In an effort to avoid such consequences, many Canadians may be tempted to lie to U.S. Border Officers, or refuse to answer their questions. Refusing to answer could result in you being barred from entering that one time, but it likely would not lead to a permanent ban, as can be the case with admitting to smoking marijuana previously. As for lying to Border Officers, this can result in a 5-year ban for misrepresentation, or worse, a forever ban. Given that officers can search the internet or a person’s electronic devices to ascertain that individual’s activities—including where that person works or what organization they are associated with—many will be caught if they are not forthcoming. As immigration lawyers advise, a determination of inadmissibility will not be easy to overcome. Canadians who do find themselves banned can apply for a temporary waiver to allow entry, but the process can take up to a year, and the waiver must be renewed every so often. Due to the jurisdictional issues, there is unfortunately very little the Canadian government can do in order to prevent U.S. Customs and Border Patrol from asking travelling Canadians about their marijuana use. At the end of the day, whether your ties to marijuana are work-related, investment related, or recreationally related, you should be wary about crossing the border. For more information on the legalities of cannabis use and investments and how Devry Smith Frank LLP’s Immigration lawyers can assist with your immigration law matter, please contact the Immigration Practice Group. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”</h6 By Fauzan SiddiquiBlog, Cannabis Law, ImmigrationAugust 21, 2018June 16, 2020
Cannabis and the Workplace Canada’s proposed Bill C-45, The Cannabis Act, is expected to come into force on July 1, 2018, as will Ontario’s Cannabis Act, 2017. At that point, in Ontario, it will be legal for individuals aged 19 years and older to purchase and consume cannabis for non-medical purposes, to grow up to 4 plants per household, and to carry up to 30 grams on their person. This may result in an increase in the number of recreational users and, because more people are likely to be using or carrying cannabis, it is possible the drug will be found in the workplace. Although the legislation would prohibit the consumption of recreational cannabis in public places and in workplaces, employers must consider that employees who smoke or ingest cannabis (even during their off-hours) may be impaired while on the job, thereby jeopardizing the safety of others in the workplace. All business owners have a responsibility to make employee safety a priority and to properly handle incidents of impairment. It is worth noting that medical cannabis will remain subject to different laws. Unless otherwise restricted under the Smoke-Free Ontario Act, 2017, medical cannabis can be smoked or vaped in places where recreational use would be prohibited. The consumption of other forms of medical cannabis are not similarly restricted. Employers should prepare for the legalization of recreational cannabis and should ensure that they can properly navigate the workplace issues to which it will likely give rise. To this end, employers can: Update Manuals and Policies: Amend workplace policies to include provisions regarding the possession and being under the influence of cannabis while at work, accommodation requirements, disciplinary actions, and the like. Implement Training and Education: Introduce mandatory training and education for employees on topics such as the effects of cannabis, how to recognize impairment, the importance of work safety, and the steps to take if someone is impaired on the job. Introduce Drug Testing (if permitted): Industries or occupations with specific safety requirements are permitted to ask employees to undergo proper drug testing. Implementing a testing policy enables the employer and the employees to clearly understand their respective rights and obligations. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Employment LawJune 11, 2018July 5, 2023
Introduction of Cannabis Lounges: Good for Users? Cannabis Consumption in Ontario Under the current proposed regulations, the Ontario Government intends to control and operate the sale of marijuana. The Liquor Control Board of Ontario will operate approximately 150 stores and sell the product to people aged 19 and older. But what will the rules be for consumption of cannibas? At present, we know that there will be a ban on consumption in public spaces or workplaces. The rules proposed by the Ontario government restrict recreational consumption to private residences, while medical users will be subject to the same use rules as those governing tobacco and electronic cigarettes. Cannabis Lounges Now, Ontario is considering the possibility of allowing cannabis lounges and has requested the public’s opinion on the matter. It is unclear whether these lounges would be owned privately or whether they would also be owned and run by the Province. Many activists and politicians are in favour of these lounges, believing the current approach to consumption to be too restrictive. These lounges already exist in Toronto and other cities across Ontario. One such café in Toronto’s Kensington neighbourhood provides a communal space for customers to consume marijuana with equipment provided by the café. Though the lounge permits the recreational consumption marijuana, they do not sell the drug. Marijuana and Leases Landlords have also spoken up and they are seeking to be allowed to modify existing lease agreements once marijuana is legalized. For more information on this matter please refer to our previous blog by clicking here. With recreational consumption forbiden in rental units, recreational users may have no location to consume marijuana legally. To address this concern, a proposal for the creation of outdoor common smoking space on a building’s grounds has been presented, benefitting those with restrictions in their lease agreements. The advantages of doing this include: Limiting disruption to other tenants (no permeating smell if consumed indoors) Providing a social setting for tenants with restrictions in their lease Helping change the general perception of legal marijuana use Devry Smith Frank LLP‘s Cannabis Law Group is well versed in Cannabis law and is capable of providing advice on a host of matters relating to cannabis law. For more information, please contact a lawyer from our Cannabis Group or contact our office directly at (416) 449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis LawMarch 8, 2018June 16, 2020
Landlords Want to Ban Pot in Rentals Some residential landlords want to be able to ban the use of marijuana smoking in rental units when recreational use is legalized. Currently, the Residential Tenancies Act does not include explicit rules about smoking substances of any kind in a rental property. The new marijuana laws do not contain rules for renters engaging in recreational use either. As it stands, Landlords have the right to include stipulations in a new lease banning tobacco smoke. However, they cannot change an existing lease to restrict smoking of tobacco. This will likely apply to smoking marijuana when it is legalized. Amongst the concerns expressed by Landlords in permitting pot to be smoked in rental units are the following: Apartment units are not hermetically sealed allowing the smell of the smoke to travel to other apartments to the discomfort of other tenants; Costs are around $5,000 – $6,000 to rid each smoker’s unit of the smell; Increased complaints of tenants having to deal with marijuana smoke permeating their homes Efforts will have to be made to reach a compromise between Landlords and recreational pot using tenants, as they will otherwise be limited on the places they can smoke. Perhaps such a compromise will be creating a dedicated space outdoors for recreational users to smoke. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Real EstateFebruary 7, 2018June 16, 2020
