Status of Federal, Provincial and Territorial Cannabis Act

When legalization of cannabis comes into effect in Canada, which is scheduled for October 17, 2018, marijuana will no longer be listed as a controlled substance under the Controlled Drug and Substances Act and the consumption and incidental possession will no longer be a crime under Canada’s Criminal Code.

Marijuana or Cannabis?
Cannabis is the common name for a hemp plant belonging to the genus Cannabis. “Cannabis” is the term preferred by Canada’s federal government and the scientific sector.

“Cannabis” refers to the plant Cannabis sativa and contains chemical substances such as “cannabinoids”. “Cannaboids” are made and stored in the plant’s trichomes (tiny, clear hairs that stick out from the flowers and leaves of the plant) and affect cell receptors in the human brain and body, which can change how those cells behave and communicate with each other. The leaves and cannabinoids of cannabis plants contain almost 500 distinct compounds, the principal ones being delta-9-tetrahydrocannabinol (∆ 9-THC or THC), cannabidiol and cannabinol. Of these compounds, THC is responsible for many, if not most, of the euphoric and addictive effects of cannabis.

“Marijuana” is a common term used by the public, and most often used in reference to the dried flowers and leaves of the cannabis plant. Marijuana is a slang term and thus not scientifically precise.

However, because marijuana is the commonly used term, we will use the terms cannabis and marijuana interchangeably.

Cannabis is most often inhaled as smoke as a dried herbal product, but it can also be vaporized and made into a variety of products, including:

  • Dried herbal material (i.e., “marijuana”)
  • Oil (e.g., “hash oil”)
  • Hash (i.e., compressed resin)
  • Concentrates (e.g., “shatter”)
  • Foods and beverages containing extracts of cannabis (i.e., “edibles”)

Cannabis can also be ingested in pill form or absorbed through the skin via creams, salves or skin patches.

Impact and Concerns

Many expect the recreational use of marijuana to rise as a result and be a health, safety and workplace concern.

To illustrate, according to the World Health Organization, marijuana use can have both short-and long-term effects. In the short term, cannabis use can impair cognitive functioning and motor coordination, which can interfere with driving and increase the risk for injuries more generally. A minority of first-time users may experience anxiety and psychotic symptoms. Acute exposure may also lead to heart attack and stroke in some at-risk individuals. Long-term use can result in cannabis abuse or dependence in regular users. Long-term cannabis use may also play a role in the development of a broad range of other health conditions, such as mental illness, respiratory diseases, cancer and cardiovascular disease; however, there is limited or inconclusive evidence in these areas (Source: World Health Organization, The health and social effects of non-medical cannabis use, 2016).

According to the Conference Board of Canada report Blazing the Trail: What the Legalization of Cannabis Means for Canadian Employers, 52 percent of employers are concerned about how legalization of recreational cannabis will impact the workplace.

The biggest concerns are:

  • Workplace safety-especially in safety sensitive roles
  • Impairment or intoxication
  • Increased use of cannabis-both inside and outside the workplace
  • Workplace drug testing for impairment
  • Increased accommodation needs and costs for addiction and prescribed use, and
  • Productivity, motivation, absenteeism, presenteeism and employee performance

The report states that the concerns are justified given the uncertainties and lack of evidence when it comes to evaluating impairment from cannabis use. Compared to alcohol, the effects of THC on the human body are different and less predictable, and impairment due to cannabis use is more difficult to establish.
For example, a frequent cannabis user might have recently ingested the drug, and have more than 5 nG/mL of THC in his or her bloodstream, but not be impaired (Phillips and others; Hartman and Huestis; Marijuana in the Workplace, The Conference Board of Canada, ibid.)

While the intoxicating effects of alcohol have been studied for decades, relatively little research has been done on measuring the effects of cannabis in proportion to dosage and a user’s tolerance.

One recent study by the National Academies of Sciences, Engineering, and Medicine in Washington, D.C., The Health Effects of Cannabis and Cannabinoids, examines the association between marijuana and injury or death. The researchers conclude that cannabis impairment increases the chances of a motor-vehicle accident, but they are less certain about whether it has a significant effect on overall workplace safety, saying:

“There is insufficient evidence to support or refute a statistical association between general, non-medical cannabis use and occupational accidents.”

According to OHS Canada Magazine:

“this lack of certainty could become troubling when one considers marijuana use by a worker in a safety-sensitive position…including construction, operating motor vehicles, healthcare, operation of heavy equipment, law enforcement and any task requiring a high level of cognitive function.”

Canada has general duty provisions under Occupational Health and Safety legislation. The general duty provisions require every employer to ensure the health and safety of workers as well as require every worker to protect his health and safety and that of other workers. These provisions impact all provincially regulated workplaces.

  • Three Canadian jurisdictions – British Columbia, Newfoundland and Labrador and the Yukon – have specific provisions respecting impairment that apply to all workplaces covered by the occupational health and safety legislation. These provisions include responsibilities for employers to not knowingly permit a person to work while impaired, and responsibilities for workers to not enter or remain at a workplace while impaired and to disclose impairment.
  • Six jurisdictions – Saskatchewan, Manitoba, Ontario, Quebec, Northwest Territories and Nunavut – have specific provisions respecting impairment that apply to specific industries such as mining and oil and gas.
  • Four jurisdictions – New Brunswick, Prince Edward Island, Alberta and Nova Scotia – have no provisions referring specifically to impairment in the workplace.

In any case, the legalization of recreational marijuana might not have a significant immediate impact on the current work health and safety situation. Like it or not, there is already a lot of use of illegal marijuana in many industries.

What the legalization of marijuana will do is normalize the use of cannabis and encourage people to be more open about it, because law enforcement will not penalize users anymore. But as with alcohol, it is simply not safe to perform certain work-related tasks or drive under the influence of marijuana.

Again the problem with the enactment of federal law that applies across Canada, is that with it comes a mismatch of provincial and territorial handling of the law. Below is summary of the federal, provincial and territorial framework as of July 12, 2018 that will regulate the production, distribution, sale, possession and use of recreational marijuana in Canada. For more details, consult the specific pieces of legislation for each jurisdiction.

The Federal Framework for the Production, Distribution, Sale, Possession and Use of Recreational Marijuana

1. Cannabis Act (Bill C-45)

The federal Cannabis Act (Bill C-45) legalizes access to recreational cannabis in Canada when it comes into force on October 17, 2018 and will also control and regulate how cannabis is grown, distributed and sold.

Key highlights of the federal cannabis framework in the Cannabis Act (Bill C-45) include the following. Effective October 17, 2018:

  • Adults 18 and older will be able to legally buy and cultivate small amounts of marijuana for personal use (maximum of 4 plants, with a maximum height of 100 cm.)
  • Adults 18 and older will be able to possess up to 30 grams of dried cannabis or its equivalent in public, share up to 30 grams of dried marijuana with other adults and buy cannabis or cannabis oil from a provincially regulated retailer. They will also be permitted to make legal cannabis-containing products (food or drinks) at home.
  • Prohibit some cannabis-related activities (e.g., sale of cannabis or cannabis accessories to a young person; using or involving a young person to commit certain cannabis-related offences);
  • Provide a framework in relation to permitted and prohibited promotion and sponsorship of cannabis and cannabis accessories;
  • Establish a statutory basis on which the designated minister can issue licences and permits for authorized cannabis-related activities; and,
  • Travellers entering Canada will still be subject to inspections for prohibited goods, including cannabis.

The Act also amends the Non-smokers’ Health Act to prohibit the smoking and vaping of cannabis in federally regulated places and conveyances.

Until the Cannabis Act (Bill C-45) comes into effect on October 17, 2018, existing laws remain in effect and cannabis possession, sale and use is still illegal.

Also, the regulations for medical cannabis will not change when cannabis is legalized.

2. An Act to amend the Criminal Code (offences relating to conveyances) (Bill C-46)

An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (Bill C-46), which comes into force October 17, 2018, seeks to address drug-impaired driving by:

  • Enacting new criminal offences for driving with a blood drug concentration that is equal to or higher than the permitted concentration
  • Authorizing the Governor-in-Council to establish blood drug concentrations
  • Authorizing peace officers who suspect a driver has a drug in their body to demand that the driver provide a sample of a bodily substance for analysis by drug screening equipment that is approved by the Attorney General of Canada
  • Modernizing offences and procedures relating to conveyances
  • Increasing certain maximum penalties and minimum fines

Specifically, the new offences vary with the level of drugs (or a combination of drugs and alcohol) in the blood. These levels will be established by regulation. However, the government has proposed the following levels for cannabis:

  • 2 nanograms (ng) but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving: an offence punishable on summary conviction with a maximum fine of $1, 000
  • 5 ng or more of THC: Having 5 ng or more of THC per ml of blood within two hours of driving would be a hybrid offence which could be prosecuted either by indictment in more serious cases or by summary conviction in less serious cases
  • Combined THC and alcohol: Having a blood alcohol concentration of 50 milligrams (mg) of alcohol per 100 ml of blood, combined with a THC level greater than 2.5 ng per ml of blood within two hours of driving would also be a hybrid offence

3. Regulations supporting Bill C-45

The Cannabis Act Regulations to support the Cannabis Act (Bill C-45) coming into force October 17, 2018, have been filed in the Canada Gazette, Part II, on July 11, 2018.

  • The Cannabis Regulations will establish the rules and standards that will apply to the production, distribution, sale, importation and exportation of cannabis by federal licence holders.
  • The Industrial Hemp Regulations sets out the requirements for cultivators of industrial hemp. As is currently the case, cultivators of industrial hemp must grow from the hemp varieties approved for commercial cultivation.

Information on the above regulations can be found here. These regulations will come into force at the same time as the Cannabis Act, on October 17, 2018.

Federal officials said that recreational marijuana license holders and other people with key positions within a cannabis company, like the master grower, will need to have a security clearance in order to operate.

When the Cannabis Act and its regulations come into force on October 17, 2018, cannabis will cease to be regulated under the Controlled Drugs and Substances Act (CDSA) and will instead be regulated under the Cannabis Act.

Provincial/territorial Frameworks for Recreational Marijuana

While the decision to legalize cannabis was made by the federal government, provinces and territories have been given the task of developing regulations in certain areas such as impaired driving, age limit (provinces and territories can choose to go higher than 18 years of age), public health, education, taxation, home cultivation (growing plants at home), distribution and wholesaling, retail model, retail locations and rules, regulatory compliance, public consumption, and land use and/or zoning.

The provincial legal frameworks with respect to recreational cannabis are evolving.

The following chart summarizes the status and content of provincial and territorial cannabis framework.

Jurisdiction

Law

Highlights

Alberta

Bill 26: An Act to Control and Regulate Cannabis, received Royal Assent on December 15, 2017 
Bill 29: An Act to Reduce Cannabis and Alcohol Impaired Driving, received Royal Assent on December 15, 2017 
Bill 6: Gaming and Liquor Statutes Amendment Act, 2018, received Royal Assent on June 11, 2018.

  • Must be 18 to purchase or possess cannabis
  • Private retailers to operate physical stores under the supervision of the province’s liquor commission; the provincial government to operate online retail
  • Cannabis sales will not be permitted where alcohol, pharmaceuticals and tobacco are available for sale
  • Zero tolerance for drug-impaired driving for drivers in the province’s graduated licensing program
  • Maximum of four cannabis plants per household; landlords and condominium boards can make rules restricting cultivation

British Columbia

Bill 30: Cannabis Control and Licensing Act, received Royal Assent on May 31, 2018 
Bill 31: Cannabis Distribution Act, received Royal Assent on May 31, 2018

  • Must be 19 to purchase or possess cannabis
  • The province will use a government-run wholesale distribution model through its liquor distribution branch
  • Public and private retail operations will be permitted
  • Cannabis use will generally be permitted where tobacco consumption is permitted, but non-medical consumption will be banned in areas frequented by children including beaches, parks and playgrounds
  • Maximum of four cannabis plants per household

Manitoba

Bill 25: The Cannabis Harm Prevention Act (various acts amended), received Royal Assent on June 2, 2017 
Bill 11: The Safe and Responsible Retailing of Cannabis Act (Liquor and Gaming Control Act and Manitoba Liquor and Lotteries Corporation Act Amended), received Royal Assent on June 4, 2018 
Bill 25: The Non-Smokers Health Protection and Vapour Products Amendment Act (Prohibiting Cannabis Consumption in Outdoor Public Places), received Royal Assent on June 4, 2018

  • Must be 19 years old to purchase or possess cannabis
  • The province’s Liquor and Gaming Authority will regulate the purchase, storage distribution and retail of cannabis; the Manitoba Liquor and Lotteries Corporation will secure and track the provincial cannabis supply
  • Private retailers will be used to sell cannabis to consumers
  • Communities within Manitoba will be allowed to hold a plebiscite to prohibit cannabis sales
  • Individual cultivation of cannabis in private homes is prohibited

New Brunswick

Bill 16: Cannabis Control Act, received Royal Assent on March 16, 2018 
Bill 17: Cannabis Management Corporation Act, received Royal Assent on March 16, 2018 
Bill 18: Cannabis Education and Awareness Fund Act, received Royal Assent on March 16, 2018 
Bill 20: An Act to Amend the New Brunswick Liquor Corporation Act, received Royal Assent on March 16, 2018

  • Must be 19 years old to purchase or possess cannabis
  • Cannabis stored or grown in a private home must be kept in a locked container or room
  • The province’s liquor corporation will operate cannabis retail operations through a subsidiary

Newfoundland and Labrador

Bill 20: Cannabis Control Act received Royal Assent on May 31, 2018 
Bill 23: Liquor Corporation Act, received Royal Assent on May 31, 2018 
Bill 22: An Act to Amend the Smoke-Free Environment Act, 2005, received Royal Assent on May 31, 2018.

  • Must be 19 years old to purchase or possess cannabis
  • Use restricted to private residences
  • Maximum of four cannabis plants per household
  • The province’s liquor corporation is responsible for, among other things, buying importing and controlling the sale of cannabis
  • Private retailers to be used to sell cannabis

Northwest Territories

Bill 6: Cannabis Legalization and Regulation Implementation Act, received Royal Assent on June 1, 2018.

  • Must be 19 to purchase or possess cannabis
  • The territory’s liquor commission will be responsible for the importation and sale of cannabis
  • Communities within the Northwest Territories will be allowed to hold a plebiscite to prohibit cannabis
  • Public smoking of cannabis will be restricted
  • Maximum of four cannabis plants per household

Nova Scotia

Bill 108: Cannabis Control Act, received Royal Assent on April 18, 2018.

  • Must be 19 years old to purchase or possess cannabis
  • The distribution and sale of cannabis will take place through the province’s liquor corporation
  • Limited public use will be permitted; use will be restricted by the province’s Smoke-free Places Act
  • Maximum of four cannabis plants per household
  • Cannabis use in vehicles will be prohibited

Nunavut

Bill 3: Cannabis Statutes Amendment Act, received royal assent on June 13, 2018 
Bill 7: Cannabis Act, received royal assent on June 13, 2018

  • Consumption and possession of recreational cannabis would be banned in private vehicles
  • Police officers would be granted warrantless search and seizure powers in some cases where officers have reasonable and probable grounds to believe that cannabis is present in a private vehicle or in the possession of someone travelling in a private vehicle
  • Distribution and sales to be managed by the territory through its liquor control board
  • Public consultations would be required prior to opening a cannabis store or lounge

Ontario

Bill 174: Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017, received Royal Assent on December 12, 2017

  • Must be 19 years old to purchase, possess or cultivate cannabis
  • Bans the use of cannabis in public, workplaces and motor vehicles
  • Distribution and sales to be managed by the province through its liquor control board
  • Maximum of four cannabis plants per household

Prince Edward Island

Bill 29: An Act to Respond to the Legalization of Cannabis, received royal assent on June 12, 2018 
Bill 31: Cannabis Taxation Agreement Act, received royal assent on June 12, 2018

  • Would have to be 19 years old to purchase or possess cannabis
  • The province’s liquor corporation would operate cannabis retail operations through a subsidiary
  • Use of cannabis would be restricted to private residences, with some exceptions
  • Individual cultivation of cannabis would have to occur within the person’s home and plants would have to be inaccessible to any person under the age of 19 who lives there

Quebec

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, received Royal Assent on June 12, 2018

  • Must be 18 years old to purchase or possess cannabis
  • Distribution and sales will be managed by the province via the new Société québécoise du cannabis
  • Zero-tolerance policy for driving while under the influence of cannabis
  • Individual cultivation of cannabis in private homes will be prohibited

Saskatchewan

Bill 112: The Miscellaneous Vehicle and Driving Statutes (Cannabis Legislation) Amendment Act, 2017, received Royal Assent on May 30, 2018 
Bill 115: The Residential Tenancies Amendment Act, 2017 received Royal Assent on May 30, 2018 
Bill 121: The Cannabis Control (Saskatchewan) Act received Royal Assent on May 30, 2018 
Bill 122: The Cannabis Control (Saskatchewan) Consequential Amendments Act, 2018 received Royal Assent on May 30, 2018.

  • Must be 19 years old to consume non-medicinal cannabis
  • Zero tolerance for drug-impaired driving
  • Consumption in public spaces (including schools and daycares) will be prohibited
  • Province plans to ban possession of any amount by a minor; violations to be punished by fine and seizure; possession of more than five grams will be a criminal offence under the Youth Criminal Justice Act
  • Maximum of four cannabis plants per household; landlords can make rules restricting cultivation
  • Saskatchewan Liquor and Gaming (SLGA) will select 51 stores in 32 communities to sell cannabis

Yukon

Bill 15: Cannabis Control and Regulation Act, received Royal Assent on April 24, 2018

  • Must be 19 to purchase, possess or cultivate cannabis
  • The territorial government will own and operate at least one retail store and provide an option for online purchases
  • Private retail will be permitted through a controlled licensing regime
  • Use of cannabis will initially be restricted to privately owned residences and adjoining property
  • Maximum of four cannabis plants per household

Mark your calendars and get up to date with the rules in your jurisdiction, Canada’s prohibition on recreational cannabis will come to an end on Wednesday, October 17, 2018. However, how many storefront retailers will actually open for business that day and how prepared law enforcement will be to deal with impairment issues while driving or in public places as well as employers is not yet known.

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