Recreational Cannabis Update


Recreational Cannabis Update

Date: September 28, 2018

On September 27, 2018, the Ontario government introduced Bill 36, the Cannabis Statute Law Amendment Act, 2018. If passed, Bill 36 will make significant amendments to the Cannabis Act, 2017, create the new Cannabis Licence Act, 2018 and will amend various provincial legislation to adjust for the upcoming legalization of recreational cannabis on October 17, 2018.

Bill 36 Amendments

Amendments to the Cannabis Act, 2017 and Smoke-Free Ontario Act, 2017 (SFOA) include:

  • Re-naming the Cannabis Act, 2017 the Cannabis Control Act, 2017.
  • Significantly broadening the scope of places where recreational cannabis can be consumed. Previously under the Cannabis Act, 2017, consumption was generally limited to private residences. Consumption in the workplace, as defined by the Ontario Occupational Health and Safety Act, was specifically prohibited. If passed, Bill 36 will permit the consumption of medical and recreational cannabis in locations where smoking tobacco is permitted under the SFOA, including many public outdoor spaces, like sidewalks and parks.
  • The language of the SFOA is similarly amended to include both recreational and medical cannabis – now simply referred to as cannabis. In its original form, the SFOA included reference to only medical cannabis as public consumption of recreational cannabis was prohibited.
  • Under Bill 36, smoking or vaping of cannabis would not be permitted in enclosed public spaces or enclosed workplaces, the indoor areas in condos, apartment buildings and university/college residences, or non-designated rooms in hotels, motels or inns. Cannabis consumption would also be prohibited in schools, hospitals, publicly-owned spaces and other areas as prescribed within the SFOA.

If Bill 36 passes, the Cannabis Control Act will come into force on October 17, 2018 or the date Bill 36 receives Royal Assent, whichever is later.

The Cannabis Licence Act, 2018 created by Bill 36 is intended to outline a licensing scheme for private retail cannabis stores in Ontario. The government has indicated that there will be no identified cap on the number of licences available pursuant to the legislation. Licences will be granted by the Alcohol and Gaming Commission (AGCO), which will also be responsible for enforcing the licensing requirements and operating parameters, such as store formats, training obligations and security protocols. Failure to comply with those requirements may result in revocation of a retail store’s licence.

When considering whether a retail operator licence should be granted, the Cannabis Licence Act, 2018 indicates that the AGCO’s Registrar will consider among other things:

  • whether the applicant has been convicted or charged with any cannabis-related offences
  • the public interest, having regard to the needs and wishes of the residents of the municipality, and
  • written submissions that are provided by the municipality and its residents regarding the needs and wishes of the community.

Municipalities will have until January 22, 2019 to decide whether or not to ban cannabis retailers within their community.

Regulatory Proposals – Government Inviting Comment by October 7, 2018

On September 27, 2018, the Ontario government also tabled two proposed regulations (below) for comment by October 7, 2018.

Smoke-Free Ontario Act, 2017 Proposed Regulations

If Bill 36 passes, the government is considering changes to O. Reg. 268/18 made under the SFOA which would, among other things:

  • replace the term “medical cannabis” with cannabis
  • establish an evidentiary rule that will allow a court to infer that a substance in question is cannabis
  • exempt certain vehicles and boats from the proposed prohibition on consuming cannabis (e.g. where a motor vehicle is equipped with permanent sleeping and cooking accommodation, is parked and is being used as a residence; where a boat has permanent sleeping, cooking and sanitary facilities, is anchored and is being used as a residence).

Long-Term Care Homes Act, 2007 (LTCHA) Proposed Regulation Relating to Cannabis Use in Long-Term Care (LTC) Homes

If Bill 36 passes, the government is considering amending O. Reg. 79/10 made under the LTCHA with respect to the use of medical and recreational cannabis in LTC homes. Among other things, the proposals include:

  • adding definitions of “cannabis”, “recreational cannabis” and “medical cannabis”
  • requiring LTC home licensees “to have written policies and procedures to govern the cultivation, acquisition, use, administration, possession, storage and disposal of medical cannabis that comply with all applicable laws, including but not limited to, the Cannabis Act (Canada)” as well as policies and procedures with respect to the same issues as they relate to recreational cannabis
  • providing for a 60-day transition period after the amendments come into force to allow for the development of policies and procedures relating to recreational and medical cannabis.

Implications for Employers

Employers seeking to implement non-smoking cannabis obligations beyond the SFOA statutory requirements (for example, in non-enclosed workspaces or outdoor areas surrounding the workplace) will now need to implement their own written policies clearly defining these obligations. These policies will be critically important to outline expectations regarding recreational cannabis use at or near the workplace to ensure that employees are not impaired at work, causing a risk to their own health and safety or the health and safety of others.

Any such policies will need to be prepared and distributed to employees quickly as the October 17, 2018 legalization date is fast approaching

Hicks Morley will be closely monitoring the progress of Bill 36 as it moves through the legislative process. Stay tuned as further updates regarding the legislation and its status will follow.

Should you have any questions with respect to these proposed amendments, or wish assistance in commenting on the proposed regulations, please contact Jacqueline L. Luksha at 416.864.7531 or your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©