Not sure when,
but it’s coming… Legalised cannabis in housing Niagara Regional Housing
February 22, 2018
Celia Chandler, Iler Campbell LLP
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?
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Legal advice?
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Best guesses?
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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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