Cannabis Legalization Report

On November 30, 2016, the Task Force on Cannabis Legalization and Regulation released their final report which contains more than 80 recommendations to governments on how to better promote and protect public health and safety, especially among young Canadians. Particularly, the Task Force recommends: establishing a minimum age of access and restrictions on advertising and promotion; well-regulated production, manufacturing and distribution that can displace the illegal market; and that governments educate Canadians about the new system to improve the public’s understanding of cannabis, including risks such as impaired driving, for example.

Note that the Task Force prefers to use the term cannabis rather than “marijuana”, as it is a slang term that is not scientifically precise. The word “marijuana” is a common term used most often in reference to the dried flowers and leaves of the cannabis plant. Cannabis sativa is the botanical name for this ubiquitous herbaceous plant, which includes the drug type “marijuana” as well as industrial hemp.

The Task Force was given a mandate to consult and provide advice to the Government of Canada on the design of a new legislative and regulatory framework for legal access to cannabis, consistent with the Government’s commitment to “legalize, regulate, and restrict access”. In carrying out the mandate, the Task Force was asked to engage with provincial, territorial and municipal governments, Indigenous governments and representative organizations, youth, patients and experts in relevant fields.

The release of the report marked the end of the Task Force’s mandate. As stated by The Honourable Anne McLellan, Task Force Chair,

“It is our hope that the recommendations contained in our report, taken together, will provide a foundation for a new system of regulatory safeguards for legal access to cannabis that aim to better protect health and to enhance public safety. Collaboration amongst governments, experts, front-line service providers and the public will be critical to the success of a new system.”

Risks of harms associated with cannabis use

According to the report:

• Earlier cannabis use begins, and the more frequently and longer it is used, the greater the risk of potential developmental harms, some of which may be long-lasting or permanent.
• Certain factors are associated with an increased risk of harms, including frequent use and use of higher potency products. Driving while impaired by cannabis is associated with an increased risk of accidents and fatalities. Co-use with alcohol may pose an incremental risk for impaired driving and co-use with tobacco may increase smoking-related lung disease.

Stakeholders noted that, alongside the risks of use, there are also benefits (i.e. relaxation purposes, sleep aid or for pleasure). “Notably, there is emerging evidence with regard to the use of cannabis as an alternative to more harmful substances, suggesting a potential for harm reduction (see also Chapter 5 of the report, Medical Access). The Task Force agrees that further research should be a priority.” See page 16 of the report.

What issues does the report address?

The following are some of the issues that have been addressed by the Task Force:

1. Implementation

According to the Task Force, the “successful implementation of a regulatory framework for cannabis will take time and require that governments meet a number of challenges with respect to capacity and infrastructure, oversight, co-ordination and communications” (page 6 of the report). “Governments should communicate early, clearly, consistently and often to Canadians about the new system” (page 54 of the report). Employers, educators, law enforcement, industry and others will require information tailored to their specific roles.

The Task Force has recommended the following:

• Provide Canadians with the information they need to understand the regulated system.
• Provide Canadians with the facts about cannabis and its effects.
• Provide specific information and guidance to the different groups involved in the regulated cannabis market.
• Engage with Indigenous communities and Elders to develop targeted and culturally appropriate communications.
• Ensure that Canada shares its lessons and experience with the international community.

2. Workplace safety

Cannabis impairment in the workplace is not a new issue. However, questions were raised about whether the legalization of cannabis might increase use and how that would affect workplace policies. As affirmed by the Task Force, drug and alcohol use or impairment in the workplace can pose a danger to everyone in the workplace, including the person who is impaired.

Currently, there is no Canadian law permitting or regulating mandatory drug testing of employees. Rather, court decisions provide some guidance and suggest that random drug and alcohol testing is not permitted, except in certain circumstances. Federal and provincial human rights commissions have policies explaining how drug and alcohol testing must not discriminate. They suggest that drug testing in workplaces can only be used if it is to satisfy bona fide occupational requirements. For instance, see the Ontario Human Rights Commissions’ Policy on drug and alcohol testing 2016.

The Task Force heard concerns from experts and stakeholders about the impact of cannabis use in the workplace; particularly for people working in safety-sensitive positions. It also heard about challenges associated with providing reasonable accommodation of employees who use cannabis for medical purposes or who may be dealing with dependence or other problematic use.

What has the Task Force recommended?

• Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies.
• Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment.
• Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies.

3. Minimum age

The age at which to set the limit was the subject of much discussion and analysis throughout deliberations, according to the Task Force. “[A] minimum age is intended to support the Government’s objective to protect children and youth from the potential adverse health effects of cannabis by putting in place safeguards that better control access” (page 16 of the report). In Canada, the minimum age for alcohol and tobacco sales have been set by the federal government (for tobacco) as well as by the provinces and territories (for both substances). However, as expressed by the Task Force, it knows that age restrictions on their own will not dissuade youth use; other complementary actions such as prevention, education, and treatment are required to achieve this objective.

According the report, current science is not definitive on a safe age for cannabis use, so science alone cannot be relied upon to determine the age of lawful purchase.

What has the Task Force recommended? The federal government set a national minimum age of purchase of 18, acknowledging the right of provinces and territories to harmonize it with their minimum age of purchase of alcohol. In order to mitigate harm between the ages of 18 and 25, the task force recommends that governments should do all that they can to discourage and delay cannabis use. According to the Task Force, robust preventive measures are seen as key to discouraging use by this age group. These measures include advertising restrictions and public education.

4. Place of use

The Task Force heard concern about public use of cannabis and the general nuisance of second-hand smoke. It also heard on numerous occasions that rules on place of use should align with current restrictions on smoking tobacco. According to the report, there was discussion about allowing cannabis use in designated public spaces, such as cannabis lounges, tasting rooms or social clubs.

What does the Task Force think? It agrees that current restrictions on public smoking be extended to include the public smoking of cannabis. That is, jurisdictions extend the current restrictions on public smoking of tobacco products to the smoking of cannabis products and to cannabis vaping products. The Task Force is also of the opinion that jurisdictions, if they wish to do so, permit dedicated places to consume cannabis, such as cannabis lounges and tasting rooms, with no federal prohibition. Also, safeguards to prevent the co-consumption with alcohol, prevent underage use, and protect health and safety should be implemented.

5. Impaired driving

The report reiterates that cannabis-impaired driving is not a new challenge. “It is a criminal offence that exists today and is a challenge that must be addressed, irrespective of how or when the Government legalizes cannabis” (page 41 of the report).

The Task Force’s recommendations include:

• Invest immediately and work with the provinces and territories to develop a national, comprehensive public education strategy to send a clear message to Canadians that cannabis causes impairment and the best way to avoid driving impaired is to not consume.
• Determine whether to establish a per se limit as part of a comprehensive approach to cannabis-impaired driving, acting on findings of the Drugs and Driving Committee.
• Support the development of an appropriate roadside drug screening device for detecting THC levels and invest in these tools.
• All governments in Canada consider the use of graduated sanctions ranging from administrative sanctions to criminal prosecution depending on the severity of the infraction, including the possible use of administrative sanctions or graduated licensing with zero tolerance for new and young drivers.

6. Personal possession

According to the report, the Task Force heard various view points on whether there should be a limit on the amount of cannabis an individual could have in their possession or on their person at any given time. For instance, a number of respondents believed that a personal possession limit is unnecessary; they argued that there is no possession limit for legally purchased alcohol and tobacco, and that a personal possession limit would be impractical to enforce.

What does the Task Force think? The amount of non-medical cannabis that individuals are permitted to carry on their person in a public place should be limited to 30 grams, and the same limit should be imposed on the amount that can be sold to an individual at one time. The Task Force is of the opinion that offences with respect to exceeding the limit should be dealt with through graduated administrative penalties (i.e. tickets, seizures, fines) except where there is evidence of intent to traffic.

7. Promotion, advertising and marketing restrictions

In the Task Force’s consultations, a majority of health-care professionals, and public health, municipal, law enforcement and youth experts, believed that there should be strict controls on advertising and marketing of cannabis. The Task Force agrees with the public health perspective that, to reduce youth access to cannabis, strict limits should be placed on its promotion. “In our view, comprehensive restrictions similar to those created by tobacco regulation offer the best approach” (page 19 of the report).

What has the Task Force recommended?

• Apply comprehensive restrictions to the advertising and promotion of cannabis and related merchandise by any means, including sponsorship, endorsements and branding, similar to the restrictions on promotion of tobacco products.
• Allow limited promotion in areas accessible by adults, similar to those restrictions under the Tobacco Act.
• Impose strict sanctions on false or misleading promotion as well as promotion that encourages excessive consumption, where it is allowed.

8. Tax and price

According to the Task Force, governments have a number of means to influence price, and therefore consumption, of a product. Although, as noted by the Task Force, missteps on price can lead to unintended consequences: too low of a price can inadvertently boost demand, while too high a price could shift consumers to seek lower-cost product in the illicit market.

Per the Task Force, taxes should be high enough to limit the growth of consumption, but low enough to compete effectively with the illicit market. “The federal government, in co-ordination with its provincial and territorial counterparts, should conduct the necessary economic analyses to determine a tax level that achieves the balance between public health objectives and reducing the illicit market” (page 26 of the report).

9. Retail

According to the Task Force, consumers should be able to access cannabis in a safe manner that minimizes potential risks to consumers and communities and reduces the involvement of the illicit market, under a regulated system.

The Task Force heard mixed views on the type of retail outlets that should be permitted. According to the report, some advocated for a centralized government monopoly, like how most provinces and territories manage alcohol sales, while others expressed a preference for a private-enterprise model with cannabis-specific storefronts (i.e. dispensaries) or with those for whom profit is not their principal motive (i.e. compassion clubs).

Task Force sees the value of both a government-run model and a private-enterprise model. “Either model could achieve the goals of protecting public health and safety, reducing the illicit market and controlling youth access” (page 34 of the report).

The Task Force recommends that retail sales of cannabis be regulated by provinces and territories, in close collaboration with municipalities. It was also recommended by the Task Force that the retail environment include:

• No co-location of alcohol or tobacco and cannabis sales, wherever possible. When co-location cannot be avoided, appropriate safeguards must be put in place
• Limits on the density and location of storefronts, including appropriate distance from schools, community centres, public parks, etc.
• Dedicated storefronts with well-trained, knowledgeable staff.
• Access via a direct-to-consumer mail-order system.

Takeaways for employers

As of now, the above are solely recommendations and not considered law. However, shortly after writing this article, the federal government announced that it is introducing legislation in the spring of 2017 to legalize cannabis (marijuana). The future Bill is expected to legalize, regulate, and restrict access to marijuana. This means marijuana consumption and incidental possession will no longer be crimes under Canada’s Criminal Code. Also, the Bill will ensure marijuana is kept out of the hands of children and its profits are kept out of the hands of criminals. However, the report does not deal with how employers will control the use of cannabis in the workplace and how it will impact their drug and alcohol policies.

Employers should carefully read the Task Force’s report and recommendations, and start thinking about how possible changes may impact their workplace. This can include reviewing your workplace’s drug and alcohol policy, code of conduct policy and accommodation of a disability policy.

This said, the legalization and regulation of marijuana could further tilt the scales against restrictive drug and alcohol policies in the workplace. The cases of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd and R. v. Smith, among others, confirmed that Canadians have a constitutional right to use medical marijuana and that employers must balance their interest in mandatory drug and alcohol testing to produce a safe workplace with employee privacy interests. Only when workplace requirements outweigh privacy interests can an employer impose drug and alcohol rules with disciplinary consequences. As a result, mandatory workplace drug testing is not allowed unless an employer can establish a substance abuse problem, even if the workplace is one with heightened safety concerns.

Many legal experts expect that a myriad of employment issues in regards to marijuana use will arise in the future because of the legalization of cannabis. They also anticipate that balancing lawful marijuana use with the need for a safe workplace will be subject to further legal challenges. Challenges regarding an employer’s duty to accommodate employees with disabilities involving medical marijuana use are also anticipated.​​​

Employers need to prepare by understanding that the legalization and regulation of marijuana do not make marijuana use in the workplace any different.

• Marijuana should be treated just like any other drug that could impair an employee’s performance or endanger others in the workplace. Workplace policies dealing with recreational marijuana and medical marijuana should largely reflect policies created to address any other use of prescription medication, drug and alcohol use in the workplace. However, it is important for employers to efficiently and precisely communicate the employee’s entitlements and obligations with regards to using, or being under the influence of, marijuana.
• Addiction is considered a disability under Human Rights legislation across Canada. Therefore the duty to accommodate applies, and this principle also extends to marijuana use (recreational or prescription). Accommodation of recreational marijuana addiction and medical marijuana should be approached no differently than any other form of accommodation. However, remember, generally speaking, an employer is not obliged to accommodate an employee beyond the point of undue hardship. Neither would an employer be forced to do something that threatens the safety of others.
• Random alcohol and drug testing are only appropriate in certain circumstances. Therefore, to implement testing, the employer must show that it is a safety sensitive workplace; there is evidence of a pervasive substance abuse problem which can be tied to the safety of the workplace; other less intrusive measures to deter substance abuse have failed, and testing must assess current impairment. This does not change because marijuana is legal.

Remember, employees have never had a right to work while they are knowingly impaired or unable to function because they have been taking substances (legal or not). What’s new is, with marijuana becoming legal, an employer and HR person might see the issue rise in the workplace and have to be more vigilant in establishing policies to control such use in the workplace. Employers and HR must ensure that their policies do not infringe on the constitutional right to use recreational (when legalized) and medical marijuana and privacy rights of employees.