Six contentious parts of Canada’s cannabis rules
Pot may be legal, but many details still unclear
• 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.
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.
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 HAVE) AN INHERENT RIGHT... TO MAKE MEDICINE.
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.