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.

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.