not sure when, but it’s coming… - nrh · 2018-03-12 · not sure when, but it’s coming…...

Not sure when,

but it’s coming… Legalised cannabis in housing Niagara Regional Housing

February 22, 2018

Celia Chandler, Iler Campbell LLP

cchandler@ilercampbell.com

August 12, 1957

December 30, 1989

June 1, 2002

May 31, 2006

January 21, 2009

January 1, 2018

January 1, 2020?

June 30, 2025?

Jul. 1, 2018

FRASER INSERT PHOTO OF SOMEONE SMOKING A

JOINT OUTSIDE WITH AN X THROUGH IT

FRASER INSERT PHOTO OF SOMEONE SMOKING A

JOINT INSIDE THEIR HOME WITH A CHECKMARK

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1. The Law – federal and provincial

2. Human rights obligations: Medical marijuana

3. Tenant obligations: Smokers and non-smokers

4. Building obligations: Growin’ their own

5. Other jurisdictions’ experience

6. Resources

Overview

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Legal information?

24

Legal advice?

25

Best guesses?

26

Certainty?

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The Federal Law

The Cannabis Act – Federal

• Illegal in Canada since 1923 / Most used of the illegal drugs

WHY LEGALISE?

• “to protect public health and public safety” especially youth

• Restrict access

• Deter illicit activities

• Reduce burden on criminal system

• Increase public awareness about health risks

WHEN?

• summer, 2018 – we think

The Cannabis Act – continued

WHAT DOES IT ALLOW?

• Allows adults (19 + in Ontario):

• to possess 30 grams of dried or fresh cannabis (not yet edibles)

• to share (not sell!) 30 grams with other adults

• to buy dried or fresh cannabis/cannabis oil from provincially-licensed retailer

• to grow up to 4 cannabis plants for personal use

• to make cannabis products, at home, for personal consumption

WHERE CAN IT BE CONSUMED?

• the provinces decide

The Cannabis Act - penalties

PENALTIES?

• Sale to minors or by unlicensed entity

• Possession >30 grams

• Growing >4 plants

• etc

• Fines jail time

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The Provincial Law

Ontario – Bill 174

• Cannabis, Smoke-Free Ontario and Road Safety

Statute Law Amendment Act, 2017

• Replaces Smoke-Free Ontario Act - addresses pot

and e-cigarettes

• Retail, packaging and where pot can be consumed

Ontario – Bill 174

11 (1) No person shall consume cannabis in,

(a) a public place* - place to which the public has access as of right or by

invitation, whether express or implied, and whether or not a fee is

charged.

(b) a workplace within the meaning of the Occupational Health and

Safety Act;

(c) a vehicle or boat; or

(d) any prescribed place.

• Smoking cannabis in common areas, including medical cannabis, will be

restricted in the same way as tobacco

Ontario – obligations on landlords

6 (1) No person shall sell cannabis, other than the Ontario cannabis retailer.

13 (1) No person shall knowingly permit a premises of which he or she is a landlord to be used in relation to an activity prohibited by section 6.

• “landlord” means, in respect of a premises, a person who is a lessor, owner or person permitting the occupation of the premises, and includes an owner of a premises that has not been vacated by the tenant despite the expiry of the tenant’s lease or right of occupation.

(2) It is a defence to a charge under subsection (1) that the defendant took reasonable measures to prevent the activity.

Similar standard as required under Fire Code/Building Code??

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Human Rights Obligations:

Medical Marijuana

NOW: medical marijuana law

• Access to Medical Cannabis for Medical Purposes Regulations (ACMPR)

• Government’s response to successful challenges to the former medical marijuana regime

• Individuals authorized by health care practitioners using a “Medical Document” (like a prescription)

• Patients may apply to Health Canada to grow their medical cannabis

• Health Canada says 1 gram/day = 2 outdoor or 5 indoor plants

• Maybe some under previous Medical Marijuana Access Regulations to grow and possess medical cannabis

• Quantities prescribed generally larger

• Probably all expired

The Cannabis Act – medical marijuana

• Psb further regs to grow/use medical pot

• Grandfathering of existing users

• Medical users may purchaser through recreational

retailers

BUT medical use protected -- Human

Rights Code

• right to use medicine as prescribed – accommodating disability

• not necessarily a “right” to smoke in unit

• case-by-case – accommodation to undue hardship

• prescribed non-smoking forms – eating or tinctures

Remember - Smoke-free Housing Act, 2017 prohibits smoking medical cannabis in common areas future Charter challenge???

Medicinal use of cannabis

Non-smoking clause – can include banning medical marijuana

BUT consider requests for accommodation for medical use

STEP 1: medicinal vs. recreational use? Dr’s note

STEP 2: smoking medical cannabis in unit?

• Dr’s note with limitations and disability-related needs

• Smoking is necessary for treatment

• Symptoms that require use in unit

STEP 3: appropriate accommodation short of undue hardship

Eviction for Smoking Medical Cannabis

• Potential grounds for eviction under RTA -

• Substantial interference with reasonable enjoyment

or lawful right, privilege or interest of landlord or

another tenant

• Serious impairment of safety (unlikely)

• Illegal act (s. 61 RTA)

• Willfully causing undue damage (unlikely)

• Consider - human rights complaint

• Case example - CEL 59398-16 – eviction denied

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Tenant/Member obligations

- the smokers

- the non-smokers

Obligations to smokers

• like any other legal activity

• smokers have rights to smoke providing it doesn’t

lead to SIRE, damage, or otherwise something you

can evict for

• e.g. people drink in their units and become

impaired – only a problem if noise/violence results

Obligation to non-smokers

• not “illegal” activity

• substantial interference with reasonable enjoyment like

tobacco

• building-wide restrictions -- Smoke-Free Ontario Act, 2017

and leases

• to grandfather or not to grandfather

• revisit leases and policies re smoking (if any) - does “smoking”

include cannabis in the policy?

Eviction for recreational pot smoking

• Potential grounds for eviction under RTA -

• Substantial interference with reasonable enjoyment or lawful right, privilege or interest of landlord or another tenant

• Serious impairment of safety (unlikely)

• Illegal act (s. 61 RTA)

• Willfully causing undue damage (unlikely)

• In absence of “no smoking” clause, threshold of substantial interference higher

• TNL 63280-14 – eviction granted

Vapourizing

• Smoke-Free Ontario Act, 2017 – restricts e-cigarettes

• Medical and recreational -- use vaporizers to consume

• No clear medical evidence of harm for e-cigs

• Law restricts in common areas

• Consider policies/leases that restrict use in units

• recreational vaporizing - difficult to enforce at LTB

• vaporizing medical marijuana - remember Human

Rights Code

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Building obligations

- growin’ their own

Personal Cultivation • Medical

• now requires Health Canada’s OK

• application requires consent of “site owner”

• likely no human rights issue -- no case law (yet)

• Recreational

• up to 4 plants per residence – not transferable

• age 19

• possible further regulation

• SWL 87748-16 – eviction denied

Is it that hard to grow? (it’s “weed”)

• 4-6 weeks – prevent flowers - 16+ hrs light/day

• lamp - $25 - $200 at Home Depot + electrical

modifications -

• a window & supplement with fluorescents

• then trigger flowering – move to dark, control light,

12 hrs

• right soil; breathable pot; pH; nutrients; …

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Elsewhere?

We are not alone…

Impact of legalization on housing? One Oregon housing lawyer:

“I have seen a significant increase in the number of files I’m

handling, in which tenants are smoking marijuana and

disturbing other tenants.

Although recreational marijuana is legal in Oregon, tenants

are not allowed to disturb other tenants. Further, there is

a majority consensus that landlords are allowed to

prohibit marijuana usage in their rental agreements,

since marijuana is still illegal under federal law.”

Other interesting things reported

• No rise in use by youth – but binge drinking

college students are also bingeing on pot

• More driving under the influence of weed

• More previous pot convictions being set aside

• Legal weed = increased real estate prices (approx

6%) (home ads show photos of pot plants growing

in the yard!)

Resources

• Smoke Free Housing

http://www.smokefreehousing.ca/about_us.html

• Provincial Bill 174

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=5276&deta

ilPage=bills_detail_the_bill

• Federal Bill C-45 The Cannabis Act

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=5276&deta

ilPage=bills_detail_the_bill

• Ontario Human Rights Commission : ohrc.on.ca

• Our blog: ilercampbell.com

Key points

1. People already smoke marijuana – will more smoke

now?

2. Societal trend away from smokers’ rights – this will

surely not change

3. Prescribed marijuana right to smoke in unit

4. Prescribed marijuana duty to accommodate

5. Smoke of any kind can be substantial interference

with reasonable enjoyment

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