With the legalization of certain uses of cannabis in Canada in 2018, there has been a great deal of interest in how the new rules around cannabis might impact the film production industry in this country. This blog post will briefly set out the legal framework around the use of recreational cannabis.
This post deals primarily with the rules related to the recreational use of cannabis in Canada. There is a separate regime of rules with the use of medical cannabis that involves obtaining a prescription for use and accessing the product through licensed suppliers rather than retail stores. For additional information on medicinal cannabis, please see: https://www.canada.ca/en/health-canada/topics/cannabis-for-medical-purposes.html
On October 17, 2018, the recreational use of cannabis became legal across Canada, and in doing so Canada became the second country in the world to legalize cannabis, after Uruguay. It is important to note that Canada has not fully de-criminalized cannabis or its use, rather a framework has been put in place to allow for its use in certain circumstances.
With the introduction of Bill C-45, an act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (“Bill C-45”), the use of Cannabis in the form of dried or fresh flowers and oil for recreational use became legal in Canada. The recreational use of cannabis edibles, extracts and topicals became legal on October 17, 2019.
In Canada, the federal government set some baseline rules pursuant to Bill C-45 for recreational cannabis, but allowed the provinces to set rules on sales, distribution and use. In addition to the foregoing, Bill C-45 also set out restrictions related to promotion and branding of cannabis products and sponsorship related to cannabis products or producers.
The key points under Bill C-45 are:
- Minimum age of 18 (subject to provincial adjustment)
- Possession is permitted up to 30 grams in public
- No possession is permitted of budding/flowering plants in public
- Sharing is permitted up to 30 grams
- Growing is permitted up to four plants at home
The division of authority allowed for by the federal law means there may be some variation between provinces. For example, the minimum age for possession ranges from 18 in Alberta to 21 in Quebec, with most other provinces being at 19. Consequently, it is important to look at the laws in the applicable province in order to determine the specific rule that applies.
Below is a reference guide on the key points/rules related to recreational cannabis use:
|Who:||Anyone over 19 years old in most provinces is permitted to use/possess cannabis, though the legal age in Alberta is 18 and the legal age in Quebec is 21.|
|What:||The following are currently permitted forms of cannabis products: dried or fresh flowersoilsaccessories (i.e. items used in the consumption of cannabis)ediblestopicalsmaximum of 30 grams (or the equivalent) of cannabis for possession in public|
|How:||Depending on the province, cannabis may be distributed in the following ways, subject to further provincial and municipal restrictions: private sale (Alberta, Manitoba and Saskatchewan)government entity only (New Brunswick, Northwest Territories, Nova Scotia, Nunavut and Yukon)hybrid of the foregoing (British Columbia, Newfoundland and Ontario)retail outlets|
|Where:||Subject to provincial and municipal rules, cannabis may be used/possessed in private dwellings, although some provinces allow landlords and condo boards, among others, to put further restrictions on smoking and vaping. Places where cannabis use and possession are restricted include: vehicles, including boatspublic places (i.e. any place to which the public has access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view) workplacesairportsairplanesvape lounges (unless specifically licensed for cannabis)|
Travelling with Cannabis
In the film and television industry, there is a constant flow of people coming into, and leaving Canada to work. Under the new framework of recreational cannabis rules, the basic rule on travel and cannabis is that travel inside of Canada with cannabis is permitted (within the rules prescribed by applicable laws). However, it is illegal to take any cannabis across the Canadian border, that prohibition applies equally to inbound and outbound travel and to both recreational and medicinal cannabis.
Cannabis use in the workplace and the extent to which employers may be required to permit such use will depend upon what general category of use is at issue: recreational use or medicinal use.
Rules related to the recreational use of cannabis could be analogous to the use of alcohol or tobacco, that is, very restrictive with employers having very broad rights to restrict and/or prohibit the use of cannabis in the workplace. This is because recreational cannabis use is not protected by human rights legislation and therefore there is no requirement for employers to accommodate its usage.
Medicinal use of cannabis in the workplace requires a different approach by employers since, under Canadian law, employers have a “duty to accommodate” employee disabilities to the point of undue hardship. This duty to accommodate means that employers must make reasonable efforts to accommodate an employee’s disability. In the event that an employee’s disability requires that the employee consume cannabis (e.g. for relief of chronic pain), an employer may be required to permit that employee to use cannabis in the workplace provided that such usage does not cause the employer undue hardship.
What constitutes “undue hardship” will depend upon the particular facts of the situation and there is not yet a significant amount of case law on this point. However, based on what is available, determination of undue hardship could include issues such as the nature of the work being done by the employee and whether the cannabis usage could render the employee unable to do their job. As more cases are arbitrated or adjudicated on this topic, clearer guidelines for employers will emerge.
In the meantime, it is advisable that employers who are faced with an accommodation request involving medicinal cannabis, follow the following steps:
- Explore the request for accommodation in good faith
- Request evidence from the employee regarding the medical need for cannabis use
- Assess the safety implications of cannabis use for your workplace
- Assess the implications of cannabis use on the employee’s duties
- Work with the employee on compromises
- Monitor the accommodation arrangement on an ongoing basis
In addition, it would be useful for employers to develop and publish a cannabis policy in the event that they do not already have a policy that covers cannabis use. A useful cannabis policy would cover the following general points:
- Medical use
- Addiction disclosure
- Recreational use
- Location of use
- Form of consumption
- Disciplinary consequences for impairment at work
With apologies to Dr. Seuss….our ode to the current state of recreational cannabis laws in Canada:
I will not use it in a car,
I will not choose it at a bar.
I will not spark it at the park, even if it’s after dark.
I will not toke in public places.
Or blow smoke in people’s faces.
I will not use it at my work, even though I need a perk.
I will partake it where I dwell, unless my landlord/condo board/parent bans the smell.