On November 1, 2017, the Ontario government introduced legislation that would, for the first time, introduce provincial laws that regulate the use and distribution of medical and recreational cannabis in Ontario. At present, the recreational use of cannabis remains illegal under the federal Controlled Drugs and Substances Act, but is scheduled to be legalized by July 2018. The federal Cannabis Act, proposed by the Trudeau government, is currently in its second reading.
Ontario’s proposed legislation, entitled Bill 174: Cannabis Act, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 (the “Cannabis Act, 2017”), has been described by the Ministry of the Attorney General as legislation that will “support the province’s safe and sensible transition to the federal legalization of cannabis”. A few key points from Ontario’s newly proposed Cannabis Act, 2017 are set out below:
a) By contrast to the proposed federal statute, which purports to limit distribution of cannabis and related products to persons over the age of 18, the Ontario legislation makes it illegal for people under age 19 to buy, sell, have or share recreational cannabis. This brings the legislation in line with rules pertaining to the sale of alcohol in Ontario;
b) The provincial legislature has proposed that Ontario’s LCBO oversee the sale and distribution of recreational cannabis (likely through a subsidiary corporation), by way of physical stores, and via a secure online order and delivery service. The proposed Cannabis Act, 2017 explicitly confirms that marijuana will not be sold in the same stores as alcohol;
c) Ontario’s “drug-impaired driving” laws, and their associated penalties, have been made even tougher;
d) Ontario has committed to developing a more robust diversion program to prevent harm to youth who are found to be in contravention of the Cannabis Act, 2017 and/or other supporting legislation.
Focus Areas for Employers
Prior to the public release of the proposed Cannabis Act, 2017, there was no clear direction from the province of Ontario regarding where individuals would be able to legally consume cannabis, including recreational cannabis. At present, both the Smoke-Free Ontario Act and Electronic Cigarettes Act, 2015 regulate the use of controlled substances such as cigarettes, and e-cigarettes, including their use in public spaces and workplaces.
If the Cannabis Act, 2017 is enacted in its present form, both the Smoke Free Ontario Act and the Electronic Cigarettes Act, 2015 will be repealed and replaced with the Cannabis Act, 2017 and the Smoke-Free Ontario Act, 2017 (the “SFOA 2017”). There are notable differences between both proposed statutes.
Newly Proposed Cannabis Act, 2017
Subsection 11(1) of the proposed Cannabis Act, 2017 states:
Restrictions on places of consumption
(1) No person shall consume cannabis in,
(a) a public place;
(b) a workplace within the meaning of the Occupational Health and Safety Act;
(c) a vehicle or boat; or
(d) any prescribed place.
Cannabis for medical purposes
(2) A medical cannabis user may consume cannabis for medical purposes in a place referred to in subsection (1), subject to any prohibitions or restrictions set out in the regulations or under the Smoke-Free Ontario Act, 2017.
(3) In this section,
“medical cannabis user” means a person who is authorized to possess cannabis for the person’s own medical purposes in accordance with applicable federal law;
“public place” includes any 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.
If enacted, the Cannabis Act, 2017 would prohibit the recreational consumption of cannabis in any “public place”. As indicated, this general prohibition would only apply to recreational cannabis users.
Newly proposed SFOA 2017
By way of the newly proposed SFOA 2017, the provincial legislature is also seeking to substantially limit the public use of medical cannabis throughout the province. This would bring the laws relating to medical marijuana consumption in line with Ontario’s existing laws for alcohol and tobacco use. Subsection 12(1) of the proposed SFOA 2017 states:
(1) Subject to any exceptions that may be provided for in the regulations, no person shall do any of the following in a place mentioned in subsection (2):
1. Smoke or hold lighted tobacco.
2. Smoke or hold lighted medical cannabis.
3. Use an electronic cigarette.
4. Consume a prescribed product or substance, in a prescribed manner.
Pursuant to subsection 12(2) of the proposed SFOA 2017, authorized individuals would not be allowed to smoke or vaporize recreational or medical cannabis, cigarettes, e-cigarettes, or any related products in:
- Any “enclosed public place”;
- Any “enclosed workplace”;
- Motorized vehicles;
- Indoor “common areas” in condominiums, apartment buildings, universities, college residences, including but not limited to elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas;
- Any place where home childcare is provided;
- The building or the grounds surrounding a school;
- Reserved seating areas of sports arenas or entertainment venues;
- “Prescribed places or areas” that belong to a “prescribed class”.
As a result, employees who are authorized to have and consume medical cannabis would be subject to the same rules that apply to tobacco smoking and e-cigarette use.
As with the currently effective legislation, section 13 the SFOA 2017 defines certain narrow exceptions to the above prohibitions:
- Subsection 13(1) lists exceptions that pertain to “indoor rooms” in “a residence that also serves as an enclosed workplace”, such as a long-term care facility.
- Subsection 13(2) lists narrow exceptions to the above pro in both the present statutes and the SFOA 2017 which may be relevant to employers and workplaces that provide temporary or overnight accommodations (g. hotels, motels, inns).
- Subsection 13(3) lists narrow exceptions which would apply to scientific, research and testing facilities.
- Subsection 13(4) lists narrow exceptions which would apply to hospices and other designated facilities.
The above exceptions all refer to “prescribed requirements” and conditions which must be met. Based on the current legislation, these “prescribed requirements” under the SFOA 2017 will likely pertain to the construction of the respective “designated” or “smoking” rooms (i.e. ensuring that they do not pose a health and safety risk to employees, have adequate ventilation, etc.).
Section 14 of the SFOA 2017 goes on to list “employer obligations”, which all Ontario employers are required to meet (which are carried over from the current legislation). Employers will be required to ensure that:
- Employees at all times comply with the SFOA 2017;
- They provide “notice” to employees regarding the prohibitions under the SFOA 2017;
- They post “appropriate” signage in areas over which an employer has control (including washrooms);
- Ensure that there are no ashtrays, or similar equipment, in enclosed areas of the workplace (except in vehicles which have an ashtray installed by the vehicle manufacturer);
- Ensure that a person who refuses to comply with the statute does not remain in an enclosed workplace or area; and
- Comply with any other “prescribed obligations” defined by the province.
As with the Occupational Health and Safety Act and the Human Rights Code, subsection 14(2) of the SFOA features language which prohibits reprisal against any person seeking to enforce the relevant provisions of the SFOA 2017 (i.e. prohibition against “reprisal”).
Comments and Key Takeaways for Employers
If the proposed Cannabis Act, 2017 is enacted, the most meaningful change to the existing regulatory regime will be the planned prohibition against public consumption of recreational cannabis anywhere outside of a private dwelling. It remains to be seen how cannabis industry lobbyists and other interested parties will respond to this restrictive rule, given that cigarettes, e-cigarettes and other controlled substances such as alcohol, can be legally consumed outside private dwellings.
With respect to the balance of Bill 174, and specifically the proposed SFOA 2017, much of the statutory language pertaining to employer obligations remains unchanged from the current statutory regime. Aside from the proposed addition of language pertaining to medical cannabis and “prescribed drugs and substances”, all other elements of the current Smoke-Free Ontario Act and E-Cigarettes Act, 2015, will be carried over into the SFOA 2017. However, it is very helpful to employers that the provincial government intends to clarify that medical marijuana consumers must take their smoking or vaporizing outside. It will be interesting to observe how these proposed amendments interact with the duty to accommodate under the Human Rights Code.
At present, employers are best advised to maintain the status quo until the Cannabis Act, 2017 is finalized and receives royal assent.
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 email@example.com.
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 firstname.lastname@example.org.
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