How the Legalization of Marijuana Affects Paralegals

Written by Lachelle Arevalo.

The countdown to legal cannabis has begun.

In exactly 58 days recreational marijuana becomes legal across Canada.

While the federal Cannabis Act sets out the regulations on legal recreational marijuana, it is the local governments of the 10 provinces and three territories that will enforce these rules, along with relevant ancillary statutes.

What does this mean for paralegals in Ontario?

Paralegal scope of practice

Landlord and tenant matters

In Ontario, the accompanying legislation to the federal Cannabis Act is Bill 174 and its four Schedules. As discussed in part 1 of this 3-part series, Schedule 1 of Bill 174 is similarly called Cannabis Act, 2017.

The provincial Cannabis Act includes provisions on how landlords should manage tenants come October 17. Section 13 subsection 1 of the Act provides that “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.” Section 6 deals with prohibitions respecting cannabis. Subsections 1 and 2 state, respectively:

“No person shall sell cannabis, other than the Ontario cannabis retailer.”

“No person shall distribute cannabis that is sold, or that is intended to be sold, other than by the Ontario cannabis retailer.”

On the face of it, these provisions aim to hold landlords responsible should illegal dealers of recreational marijuana sell or distribute from their own homes or apartment units. This scenario is not far-fetched as homeowners and renters alike are allowed within the parameters of the Act to grow up to four cannabis plants, regardless of the number of people living in the household or unit.

Some readers of aux • il • i • um also raised a good question: “Can recreational cannabis users smoke in their apartment units or in their balconies?”

The short answer is yes.

However, tenants who intend to smoke marijuana in their apartment units and/or balconies should keep these two things in mind: (1) other tenants and their landlord have rights, too, within the regulations of the Residential Tenancies Act, 2006; and (2) if they break these regulations, their contract can be terminated with cause.

To ensure that tenants don’t violate the rights of their neighbours or landlord, and as a result lose their homes or apartments, tenants who intend to consume recreational marijuana should be careful not to impair their own and other people’s safety, cause damage, or substantially interfere with the reasonable enjoyment of the residential complex.

Wen Liu, Licensed Paralegal @ WL Paralegal Services in Markham

Wen Liu, licensed paralegal at WL Paralegal Services, foresees this scenario as an area for “debate between landlords and tenants” and suggests that “now is a good time for the paralegal industry to get the Law Society’s attention to carry out CPDs regarding the Cannabis Act.”

Amendments to the Highway Traffic Act and the Criminal Code

Liu also mentions Schedule 4 of Bill 174, which provides the amendments to the Highway Traffic Act. She believes that the amendments presented in the statute “would help minimize potential DUI offences or at the very least, nuisance issues in the province.”

According to Statistics Canada, 1 in 7 Canadians drive within two hours after using cannabis; with men using twice as likely as women. After the publication of this recent survey, many have echoed Liu’s sentiments. However, many legal professionals are on the other side of the fence, as well, including cannabis lawyer, Harrison Jordan.

Road safety is one area of the law where the federal and provincial governments have similar and overlapping provisions. In the provincial Cannabis Act, police are given powers to search a vehicle, its driver and passengers, without a warrant, if they have reasonable and probable grounds to believe that the driver and/or any of the passengers in the vehicle are in violation of the Act. While this provincial provision itself raises questions of possible Charter rights infringement, there now exists a corresponding, stricter federal statute called Bill C-46.

C-46 is an Act that amends some provisions of the Criminal Code that deals with offences and procedures relating to drug-impaired driving. It is an accompanying federal statute to the Cannabis Act and received Royal Assent on June 21. Essentially, one of the provisions of the Act limits the Tetrahydrocannabinol (THC) levels of a person driving a vehicle to 2 nanograms per millilitre of blood (ng/ml). THC is the chemical compound in cannabis that makes a person “high”.

Jordan believes that “C-46 is probably unconstitutional because if an individual consumes cannabis regularly, they would probably have 2 ng/ml [of THC] in their system.” He further explained that studies have shown that even if a cannabis user stops consuming marijuana for seven days, “some individuals would still have 2 ng [of THC] in their bloodstream.” More importantly, these new provisions in the Criminal Code will apply to everyone, including those with medical authorization to use marijuana.

“Even if there are provincial rules that exempt medical marijuana users from laws such as these, they would still be criminally charged under C-46. A significant number of cannabis consumers will be affected for sure and I find it very concerning,” Jordan says.

Harrison Jordan practices Canadian cannabis law @ Harrison Jordan Law in Toronto. Click here to visit his website.

The punishment provision of C-46 details that drivers found to have 2 ng/ml of THC, but less than 5 ng/ml, could be charged with a summary conviction offence and a maximum fine of $1,000. If the driver’s THC levels are found to be higher than 5 ng/ml, he or she could face a mandatory fine of $1,000 for a first offence, 30 days of imprisonment for a second offence, and 120 days for a third offence.