Emerging Issues Bulletin: Issue # 5

Bruce A. MacFarlane, Robert J. Frater, Croft Michaelson

The Emerging Issues Bulletin in Drug Offences in Canada, 4th edition is intended to provide updates on notable drug policy, legislative and enforcement issues. These are issues that may have started to be addressed in case law in trial courts, or reflected in legislation just passed or being contemplated, or concerning new enforcement techniques by the police. By focusing on percolating issues, it is hoped that the section may alert practitioners to emerging legal challenges.

A sample from the most recent Bulletin is excerpted here. To continue reading from Drug Offences in Canada, 4th edition, sign up at the bottom of the screen for a free 14-day trial of CriminalSource on westlaw Canada.

Cannabis in the Workplace

The proposed Cannabis Act, Bill C-45, addresses important federal aspects of the new regulatory regime for cannabis, like the extent to which distribution will continue to be a crime. However, the regulatory landscape will change considerably, given that the scheme contemplates a significant role for the provinces and territories in regulating sales.

The interaction between federal and provincial law generates issues beyond those involving sales and distribution. One of the areas likely to generate considerable litigation is the field of employment law, which is largely an area of provincial jurisdiction. Cannabis use in the workplace has already generated case law in Canada in relation to workers who have prescriptions for medical cannabis. In Chapter 36, Medical Marihuana, we have been describing the emerging case law, such as Paradis v. Canada (Attorney General), 2016 FC 1282, 2017 C.L.L.C. 240-001, 273 A.C.W.S. (3d) 322, 2016 CarswellNat 6185, a case concerning cannabis use and an employer’s drug testing policies.

The issues for employers are likely to multiply once legalization becomes a reality. Workplace drug testing, accommodation of disabilities, unjust dismissal, workplace safety and employment insurance benefits are all areas where legalization may have an impact. In the United States, where the situation is even more complex because cannabis possession may be legal under state law but illegal under federal law, there is already a significant body of cannabis-related employment law jurisprudence.[1] The outgoing judge advocate general for Canada, Major-General Blaise Cathcart, has suggested the problem is going to be a difficult one for the Canadian Forces to resolve.[2]

Cannabis Legalization and the Internet

The movement towards cannabis legalization has stimulated a wide debate about what the post-prohibition regime should look like, and what legal issues arise for those hoping to stake their claims in the “green rush”, the new cannabis economy. Similar debates are raging in the United States. Not surprisingly, websites are now available to service those interests.

In Canada, the Government of Canada has created a website concerning legalization, which provides question and answers to frequently asked questions and links to relevant information, like the report of the Task Force on Legalization and Regulation. Non-government sources of information on drug policy include the websites of reform groups like the Canadian Drug Policy Coalition and NORML Canada. In the United States, NORML is a good source for identifying recent legislative developments in the various states, and SAM (smart approaches to marijuana) is an alliance of health groups that tends to be skeptical of certain aspects of cannabis law reform. For those seeking to participate in the new cannabis economy, the website Leafly bills itself as the “the world’s cannabis information resource”. This well-designed website covers a wide range of issues such as health, technology, food and tourism. A somewhat similar website , Merry Jane, focuses on cannabis culture. The Marijuana Business Daily provides a free email service for cannabis news. The Cannabis Business Times also provides a newsletter for people interested the industry.

Cannabis-related Torts

Will the legalization of cannabis lead to new frontiers of litigation? American experience thus far has certainly suggested that it might, though in the United States the matter is complicated by the fact that jurisdiction over drugs is shared between the federal and state levels.

One type of litigation that could have some impact in Canada concerns the rights of property owners who find themselves living next to cannabis production facilities. In Safe Streets Alliance v. Alternative Holistic Healing LLC, Doc. 16-1266 (10th Cir., U.S. C.A., June 7, 2017), a Colorado public interest organization and two owners of a ranch sued a cannabis growers’ collective that had set up their cultivation facility next to the ranch. Although the suit was brought under federal racketeering legislation based on the fact that cannabis cultivation remained illegal under federal law even though it was legal under Colorado law, the case may have some relevance in Canada. The underlying claim of the ranch owners was one that sounded in nuisance, based on the allegation that the noxious odors emitted by cannabis growing diminished the ranch owners’ enjoyment of property, and diminished the value of the property. The litigation was the Canadian equivalent of a motion to strike a claim as disclosing no reasonable cause of action. The 10th Circuit Court of Appeals reinstated the nuisance-related parts of the ranch owners’ claim, overruling the judge at first instance. The court did caution that its judgment should not be interpreted as “suggesting that every private citizen purportedly aggrieved by another person, a group, or an enterprise that is manufacturing, distributing, selling, or using marijuana may pursue a claim”.

[1] For a review of the case law, see, F. Liquori, “The Effects of Marijuana Legalization on Employment Law”, NAGTRI Journal, Vol. 1, No. 2 (February 2016) (http://www.naag.org/publications/nagtri-journal/volume-1-number-2/the-effects-of-marijuana-legalization-on-employment-law.php). (The journal is a publication of the U.S. National Association of Attorneys General.)

[2] See C. Schmitz, “JAG says Marijuana Legalization Poses ‘Challenges’ for Military”, The Lawyers’ Daily, May 8, 2017 (https://www.thelawyersdaily.ca/articles/3116/jag-says-marijuana-legalization-presents-challenges-for-military).