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Do you Mind if I Smoke?

Cannabis will be decriminalized on October 17, 2018, and on the eve of legalization the rules about where cannabis may be consumed are poised to change.  The proposed changes highlight interesting policy choices made by the PC and Liberal governments of Ontario. 

 

As I write this, the applicable rules are those passed by the previous Liberal government as they appear in the Cannabis Act 2017 and Smoke Free Ontario Act, 2017.  Liberal policy as reflected in those Acts was to treat the public consumption of recreational cannabis like the consumption of alcohol, only with even more restrictions:  The consumption of recreational cannabis in any form is prohibited in any workplace, public place, or in any vehicle.

 

The PC government has introduced Bill 36 - Cannabis Statute Law Amendment Act, 2018 to amend the Cannabis Act 2017 and Smoke Free Ontario Act, 2017.  PC government policy as reflected in Bill 36 generally treats the consumption of recreational cannabis like tobacco:  The smoking of recreational cannabis is generally permitted anywhere you could smoke a cigarette, except in motor vehicles.    

 

Should Cannabis Be Regulated Like Alcohol or Tobacco? 

 

The consumption of alcohol in public is generally prohibited in Canada and the United States.  The traditional rationale for prohibiting drinking in public is that it is needed to help maintain public order.  The prohibition is thought to discourage the overconsumption of alcohol in the first place, and it tends to reduce the anti-social behavior that can accompany public intoxication.   

 

The modern restrictions on the smoking of tobacco are driven by the health concerns of non-smokers.  It is generally accepted that second-hand smoke is a carcinogen, and the objective of the Smoke Free Ontario Act is to prevent non-smokers from being exposed to tobacco smoke. 

 

To me, cannabis is unlike alcohol in the sense that it does not pose a particular threat to public order.  Smoking a joint does not put you on the pathway to public mayhem the same way as submerging yourself in a bathtub full of purple jesus, or so my acquaintances tell me.  From that perspective, the PC policy of treating cannabis like tobacco makes sense. 

 

An Employer's Perspective  

 

In the context of the workplace, however, cannabis is just like alcohol because they raise similar issues concerning impairment, safety, job performance, drug testing, and human rights.  These issues will come up regardless of rules regarding consumption.  But one virtue of the Liberal policy is that it would tend to minimize the consumption of recreational cannabis to the extent that was possible through restrictions on where you could smoke, vape, or eat cannabis.  If the overall levels of consumption of cannabis are reduced, then it is stands to reason that workplace issues concerning cannabis would be reduced somewhat too.  If the PC policy of liberalizing the rules concerning consumption of recreational cannabis tend to increase the consumption of cannabis overall, employers may find themselves feeling hungover. 

 

Frank Carere is a labour and employment lawyer at Madorin, Snyder LLP in Kitchener.  It was previously published in the Grand Valley Construction Association Journal and is republished with permission.  This article should not be relied on as legal advice

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