Six con­tentious parts of Canada’s cannabis rules

Pot may be le­gal, but many de­tails still un­clear

Calgary Herald - - CANADA - Maura For­rest

• Though it’s now le­gal to smoke cannabis for fun in Canada, that doesn’t mean it’s all a hazy high from here on out for the fed­eral govern­ment. Since the Lib­er­als in­tro­duced their land­mark pot le­gal­iza­tion bill in April 2017, lawyers and con­sti­tu­tional ex­perts have pointed to sev­eral parts of the new mar­i­juana rules that could still cause le­gal headaches.

From home cul­ti­va­tion to road­side test­ing to ad­ver­tis­ing, bat­tles are al­ready brew­ing over le­gal weed. Here are six pot law pit­falls that are most likely to end up in court.

1. Im­paired driv­ing

Canada’s new im­paired­driv­ing law has been a favourite punch­ing bag for lawyers since it was tabled last year. The new rules, which set out a le­gal limit for the level of THC in a driver’s blood, al­low po­lice of­fi­cers to test saliva us­ing road­side screen­ing de­vices and to col­lect blood sam­ples.

How­ever, there’s not a clear link be­tween the level of THC in the blood and the de­gree of im­pair­ment, as there is with al­co­hol, and lawyers have warned the new rules will likely face a con­sti­tu­tional chal­lenge.

In fact, CBC News re­ported last week that Chuck Ri­fici, the Lib­eral party’s for­mer trea­surer and cur­rent CEO of a pri­vate eq­uity firm that in­vests in the cannabis in­dus­try, is putting up $25,000 of his own money to fund a le­gal chal­lenge of the new im­paired-driv­ing law. “I’m all for draw­ing a line if there is a line to be found, of where the blood level equals im­pair­ment. And I don’t think it’s there,” Ri­fici, the co-founder of cannabis gi­ant Canopy Growth, told the CBC.

2. Home cul­ti­va­tion bans

Que­bec and Man­i­toba have banned the home cul­ti­va­tion of mar­i­juana, de­spite the fact that the fed­eral law al­lows house­holds to grow up to four plants. For­mer Que­bec premier Philippe Couil­lard had promised to de­fend the prov­ince’s ban in court, ar­gu­ing the rules fall un­der pro­vin­cial ju­ris­dic­tion.

His suc­ces­sor, pre­mierdes­ig­nate François Legault, has also promised to raise the le­gal age to 21, while all other ju­ris­dic­tions have cho­sen a le­gal age of 18 or 19. Some lawyers have sug­gested a pos­si­ble chal­lenge on the ba­sis of age dis­crim­i­na­tion.

But cannabis lawyer Trina Fraser said there’s an im­por­tant dif­fer­ence be­tween a prov­ince ban­ning home cul­ti­va­tion and in­creas­ing the min­i­mum age. When it comes to age, she said, “the fed­eral govern­ment has ba­si­cally said we don’t have a prob­lem with you tak­ing a more re­stric­tive ap­proach.” In con­trast, Ot­tawa has es­sen­tially said the prov­inces can­not ban home grow, Fraser said, so that ques­tion is more likely to end up in court.

3. Pro­mo­tion

Ba­si­cally, cannabis pro­mo­tion can­not in­clude any im­ages of peo­ple, and can­not con­nect weed to glam­orous or ex­cit­ing life­styles, or ap­peal to chil­dren.

This week, New Brunswick’s pot sales web­site made waves for pro­vid­ing cheer­ful, step-by-step in­struc­tions for how to roll a joint. But Ma­clean’s pointed out that the web­site might vi­o­late Ot­tawa’s rules by us­ing im­ages of smil­ing young peo­ple and de­scrib­ing pot as a good ac­ces­sory for so­cial oc­ca­sions in­clud­ing “girls’ night out.”

Health Canada has said it’s look­ing into the is­sue, while Cannabis NB told the Post it will “mod­ify the con­tent ac­cord­ingly if re­quired.”

But lawyer Sara Zborovski said she ex­pects cannabis com­pa­nies will push back. As it stands, she said, it’s un­clear what it means to pro­mote a cer­tain life­style. “What if (a cannabis logo) goes on a yoga mat?” she said.


Work­place rules

Em­ploy­ers are de­vel­op­ing poli­cies to gov­ern cannabis use in the work­place, but some have made head­lines for be­ing quite re­stric­tive. The RCMP, for in­stance, has an­nounced that of­fi­cers are not al­lowed to con­sume mar­i­juana in the 28 days be­fore start­ing a shift, while the Cal­gary po­lice force has banned it en­tirely. “The 28 days is still mind-bog­gling to me,” Fraser said. “I be­lieve that will be chal­lenged.”



First Na­tions ju­ris­dic­tion Some First Na­tions say they plan to set up re­tail stores on re­serves de­spite not hav­ing pro­vin­cial per­mits to do so, claim­ing their right to self-govern­ment. Ross Rebagliati, a for­mer Olympic snow­boarder, has teamed up with the Sipekne’katik First Na­tion in Nova Sco­tia to sell cannabis, de­spite the fact the prov­ince con­trols sales. He ar­gues that First Na­tion lands fall un­der fed­eral ju­ris­dic­tion.

CBC News also re­ported this week that the owner of a dis­pen­sary in the Mo­hawk com­mu­nity of Tyen­d­i­naga, Ont., is plan­ning a con­sti­tu­tional chal­lenge after he was charged with traf­fick­ing last year. Seth LeFort ar­gues his peo­ple have an “in­her­ent right… to make medicine.”

6. Land­lord and condo board re­stric­tions

Fraser said she’s also ex­pect­ing chal­lenges of land­lords and condo boards that ban weed cul­ti­va­tion and con­sump­tion, es­pe­cially from med­i­cal users. “Some are just im­pos­ing blan­ket pro­hi­bi­tions,” she said, which could be a form of dis­crim­i­na­tion on the ba­sis of dis­abil­ity.


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