Magdalena Fish

Cannabis & Drone Law

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In mere hours weed will be legal in Canada. What does that mean for pot smokers?

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You’ve heard the hype. Canada is about to become the second country in the world and first G20 nation to legalize recreational cannabis. The Cannabis Act takes effect tomorrow, October 17, 2018. What does that mean for you, the average pot smoker? 

It depends in large part on where you live, both jurisdictionally and in terms of the type of housing you live in. But first, let’s discuss the basics of the federal legislation.

As of October 17, 2018, it will be legal for any individual of legal age (at minimum 18 years, but it will vary by province) to possess up to 30 grams of dried cannabis, or an equivalent amount of other permitted “classes” of cannabis. The types of cannabis products that will be legal to be sold as of October 17th are:

  • dried cannabis (your classic bud for rolling joints or packing bowls, etc.);

  • cannabis oils (70 grams = 1 gram of dried cannabis);

  • fresh cannabis (5 grams = 1 gram of dried cannabis);

  • cannabis plants; and

  • cannabis plant seeds (1 seed = 1 gram of dried cannabis).

Notably absent from the list of permitted types of cannabis products are edibles and concentrates, which will not be legal to sell until completely separate regulations are introduced sometime in the next year. There is nothing prohibiting you from making your own edibles in the meantime, but no one can legally sell them to you. 

However, this does not mean that the bud you already have will become legal when the clock strikes midnight. Unless you are a medical patient, and obtained your medicine through legal channels under the Access to Cannabis for Medical Purposes Regulations (ACMPR), the weed you already have will still be illegal tomorrow. The Cannabis Act defines “illicit cannabis” as any cannabis sold, produced or distributed by any person prohibited from doing so under the Cannabis Act, and makes it a criminal offence for anyone to be in possession of illicit cannabis.

The Cannabis Act sets out a strict licensing regime for different types of activities related to cannabis. In order for cannabis to be legal (aka not illicit), it has to come from a licensed producer and sold by a legal retailer. None of the cannabis on the streets today meets those standards (even the cannabis you bought using your credit card at a storefront on a major Toronto street that you maybe thought was legal). Despite being awesome the dispensaries have all been 100% illegal, even though they have been quite openly selling weed. We live in interesting times.

So where can you buy some of this legal cannabis? There’s where we get into the jurisdictional issues. The federal government regulates the production of cannabis, but left it to the provincial and territorial governments to regulate its sale and distribution. As a result, we have a patchwork of different models in the 13 provinces and territories in Canada. In the majority of the country, the province or territory is the wholesaler, meaning that the province buys cannabis from the licensed producers, then either sells it to licensed retailers to sell to you, or sells it directly to you. Yes, the provinces are massive pot dealers now.

If you live in Canada’s most populous province, Ontario, the only place you’ll be able to purchase legal cannabis for the first several months of legalization is online through the Ontario Cannabis Store. And no, there is no indication that same day delivery will be available. Eventually, private businesses will be able to get licensed and open storefronts so that you can purchase your cannabis in person with the help of [ideally] knowledgeable budtenders, but that will not be until at least April 1, 2019 at the earliest. Further, municipalities have the option to opt out from having cannabis retail stores until the end of January. Many municipalities are waiting until after this year’s municipal elections to decide but some municipalities, such as Markham and Richmond Hill, have already indicated that they will be opting out. If you live in one of those places, your only option for obtaining legal weed without having to travel to a different city will be online through the Ontario Cannabis Store. 

The new Ontario government is still debating the legislation that will set out the framework for the licensing of cannabis retailers. The Third Reading of Bill 36 was expected to take place sometime today but it is already evening and that has not happened yet (even though legalization takes effect TOMORROW).

The irony is therefore that even though longtime Ontarian pot smokers will celebrate this historic day by blazing up (is 10/17 the new 4/20?), unless they have a medical authorization for cannabis (and they actually got their medicine through legal channels – not from the dispensaries serving medical patients only, which are also all technically illegal), they will still be breaking the law by being in possession of illicit cannabis. It’s a bummer, but really the only way to legally celebrate legalization day in Ontario if you’re not a medically authorized user is by making an online purchase on the OCS website (and hope it doesn’t crash from the traffic, and that it doesn’t sell out of weed) then wait patiently for several days until Canada Post delivers your order (while crossing your fingers that there is no postal strike). Wop wop.

Most of the cannabis enthusiasts in the rest of the country will be in the same boat. Even the provinces that are further ahead in the game than Ontario are seriously lacking in cannabis retail outlets that will be open and ready on day one of legalization. In British Columbia, for example, it is expected that only one licensed retailer will be opening tomorrow.

Who can buy this legal weed anyway? Adults, the definition of which varies from province to province. Most provinces have set whatever their minimum drinking age is as the minimum age to purchase cannabis. Quebec is a major outlier here, as its new, totally un-chill government has said that they will set the minimum age as 21 years old despite the fact that their drinking age is 18. Ontario’s minimum age will be 19, in line with its drinking age.

You may be asking yourself, how can they verify my age if I am buying online? There are three points at which your age will be verified: when you first land on the OCS website, when you make your purchase, and when your order is delivered by the postal service. The first two checks could easily be bypassed by any young person able to do basic math, but the last check will be a barrier for would-be underage purchasers of legal weed (meaning they’ll just keep buying it from the same black market connect they have always used).

So you finally got your legal weed, where can you smoke it? That is complicated. In Ontario, assuming there are no major changes to Bill 36 before royal assent, the general rule is that you can smoke cannabis anywhere that you can smoke cigarettes. The province-wide restrictions on smoking are set out in the Smoke Free Ontario Act, 2017, which will be amended by Bill 36 to also govern cannabis smoke. The restrictions in that Act are not surprising: no smoking in enclosed public places (including enclosed common areas at condominiums, apartment buildings, university residences, etc.), at schools or child care centres, or in the reserved seating area of sports arenas or entertainment venues. For cannabis specifically, you also will not be allowed to smoke in vehicles or boats, even if the vehicle or boat is not moving.

Municipalities can also set their own rules, and indeed most already have in respect of cigarette smoking. Some municipalities may enact separate by-laws in relation to cannabis smoking, but others may simply apply their cigarette by-laws. For example, the City of Toronto’s Municipal Code defines “smoke or smoking” as the carrying of a lighted cigar or cigarette, pipe or any other lighted material. There is no reason to believe that this would not apply to cannabis (unless you want to get technical about the science of smoking vs. vaping). In Toronto, Canada’s most populous city, in addition to the restrictions set out in the Smoke Free Ontario Act, you also cannot smoke:

  • within nine meters of an entrance or exit to any building that is used by the public (which includes condo and apartment buildings);

  • on or within nine meters of children’s playgrounds;

  • on or within nine meters of publicly owned sport fields and surfaces (such as public pools, tennis courts, etc.);

  • bar and restaurant patios;

  • on a swimming beach;

  • in public squares (such as Yonge-Dundas and Nathan Phillips Squares); etc.

Under the Toronto Municipal Code and the Smoke Free Ontario Act, you can still smoke in your private residence (including your balcony). However, if you are a renter or live in a condominium building (whether you own or rent the condo), the landlord or condo board can prohibit smoking even in your private unit.

The same goes for growing. Under the federal Cannabis Act, each household is allowed to grow up to four cannabis plants. Some provinces, like Quebec, have banned home growing altogether. However, even if you live in a province that allows it (such as Ontario), your landlord or condo board may prohibit it. It is seen as a risk to the integrity of the building (fires, mold, etc.). You should note, however, that a landlord cannot unilaterally implement this prohibition in existing tenancies without an amendment to the lease (which would require the agreement of the tenants), assuming the lease doesn’t already have a clause about growing cannabis. Condo boards, however, can change their rules whenever they want. Tenants who rent condos from landlords are still subject to the condo board’s rules.

In sum, Torontonians can celebrate legalization by blazing up in Trinity Bellwoods park if they want to, but should know that unless they have a medical authorization they will be outing themselves as a user of illicit cannabis and may subject themselves to potential criminal penalties if they do so in the first couple days (before the postal service can reasonably deliver those first OCS orders). Fingers crossed that the police won’t be such sticklers, but you never know. As time goes on, however, it will practically be very difficult for law enforcement to distinguish between illicit cannabis and legal cannabis, especially given that we are allowed to grow our own (though compliance with the law is always recommended).  

Cannabis aficionados in other cities and provinces should apprise themselves of their local cannabis rules before lighting up in public.

  

Magdalena Fish is a cannabis lawyer in Toronto. If you require any cannabis-related legal assistance, please contact her at maggie@mfishlegal.com.

Photo by Wesley Gibbs on Unsplash