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Update concerning the legalization of marijuana

marijuanaI recently wrote about the proposal to legalize marijuana in Canada and the potential implications for employers. It is important to note that some developments have occurred federally and provincially.

Firstly, Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, which was introduced in the House of Commons on April 13, 2017, has now moved from the first reading stage through to third reading on November 22, 2017. Subsequently, it received first reading in the Senate on November 28, 2017, and proceeded to second reading debates on November 30, 2017. However, the debate was adjourned due to expiration of the debating period.

As mentioned previously, the provisions, except sections 161, 188 to 194, 199 to 202, 206 and 225, would come into force on a day or days to be fixed by order of the Governor in Council. The target date for the legalization of cannabis across Canada continues to be July 2018.

Secondly, in response to the developments taking place at the federal level, provinces and territories have become active in creating provisions for their particular jurisdictions. The goal is to implement a regulatory framework in particular provinces or territories in anticipation of the legalization of non-medical cannabis in July 2018. This may involve regulating things such as the cultivation, sale, distribution and consumption of cannabis in that jurisdiction, adding smoking prohibitions and requirements, creating strict penalties in traffic legislation to deal with individuals who drive while impaired by cannabis; modifying human rights and education provisions, and stipulating the powers and duties of the particular entity that has the exclusive right to sell cannabis in that jurisdiction.

For instance, while some are still in the consultation process, some provinces and territories have started to enact legislation in anticipation of the legalization of marijuana, including Manitoba (Bill 11, The Safe And Responsible Retailing Of Cannabis Act), Alberta (Bill 26, An Act to Control and Regulate Cannabis and Bill 29, An Act to Reduce Cannabis and Alcohol Impaired Driving), Québec (Bill 157, An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions), New Brunswick (Bill 16, Cannabis Control Act and Bill 17, Cannabis Management Corporation Act), Ontario (Bill 174, Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017).

It would not be practical to review every single piece of provincial legislation; however, it may be useful to review one as an example, namely Ontario’s Bill 174.

More specifically, Bill 174 would enact the Cannabis Act, 2017 (Schedule 1) and the Ontario Cannabis Retail Corporation Act, 2017 (Schedule 2). It would also repeal the Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015 and replace them with the Smoke-Free Ontario Act, 2017 (Schedule 3), and make amendments to the Highway Traffic Act regarding driving with alcohol or drugs present in the body and other matters (Schedule 4).

Practically speaking, the changes would: regulate the cultivation, sale, distribution and consumption of cannabis in the province; add new requirements and prohibitions in the Smoke-Free Ontario Act, 2017; create strict penalties for those who drive while impaired by cannabis; modify the Human Rights Code to ensure equal treatment with respect to goods because of age in relation to the upcoming Smoke-Free Ontario Act, 2017; amend the Education Act to include the requirement to discourage the use of alcohol, illegal drugs and, except by a medical cannabis user, cannabis as one of the purposes of a code of conduct established by the Minister; and set out the powers and duties of the Ontario Cannabis Retail Corporation which will have the exclusive right to sell cannabis in Ontario.

These provisions would come into force in Ontario on various dates after receiving Royal Assent. Some further provisions may be enacted by regulation after passage of the legislation, following consultation with municipalities, Indigenous communities and other stakeholders. It is also anticipated that there will be a consultation period with respect to the establishment of cannabis retail stores in Ontario, and there would also be online distribution of cannabis available in all regions of the province.

Furthermore, it is also important to note that the federal Minister of Finance has released a legislative proposal for an excise duty framework for cannabis products.

What does this mean for employers?

As mentioned in my earlier post, employees would not suddenly be allowed to use marijuana before arriving or at the workplace and recklessly do their work, endangering co-workers and performing poorly. Although marijuana use is likely to become legal in Canada, employers would still be entitled to restrict the use and possession of cannabis in the workplace in order to ensure a safe and productive workplace.

That said, it is important to remember that employers would still have to respect to the accommodation requirements under human rights legislation for those employees who are suffering from particular medical conditions where they engage in medical use of marijuana. Employers are recommended to continue their use of policies and procedures for medical use of marijuana in the workplace in order to comply with human rights requirements.

With that qualification in mind, employers would still be entitled to discipline employees where the recreational non-medical use of marijuana has an adverse impact on their job performance or endangers their co-workers or customers. Employers are recommended to create policies and procedures for that address marijuana use in the workplace and also to ensure that they set out their expectations regarding workers who drive company vehicles so they remain in compliance with impaired driving provisions. Employers are recommended to train employees regarding their policies and consistently enforce them. If employers are unsure of how to approach this issue, they are recommended to seek legal advice.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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