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THE LEGALIZATION OF Recreational Cannabis in Canada A PAN-CANADIAN PERSPECTIVE
Claudia Dubé and Marianne Bessette Therrien Couture L.L.P.
On June 21, 2018, the Canadian fed- of preventing access to cannabis by youth Generally, eligible individuals will be eral government passed Bill C-45 in order and of depriving criminals and organized legally able to possess up to 30 grams of to regulate and legalize recreational crime of the profits derived from its sale. dried cannabis in public; however, under cannabis in Canada beginning on October While some businesses, producers, dis- Schedule 3 of Bill C-45 there are equivalent 17, 2018. Prior to this date, recreational tributors, municipalities, investors and con- quantities for each class of cannabis, which cannabis remains illegal and subject to sumers are thrilled by the impending may complicate the understanding of this criminal prosecution. Medicinal cannabis legalization, this enthusiasm is not universal threshold, beyond which possession will re- will continue to be governed by a separate and there are other businesses, municipali- main a criminal offense: legislative framework. ties, employers, unions, organizations and in- Bill C-45 has legal and operational im- dividuals (parents, psychiatrists, teachers) CLASS QTY EQUIVALENT OF TO 1 G OF DRIED pacts for foreign businesses operating in that are worried about anticipated difficulties. CANNABIS CANNABIS Canada, especially in the areas of real estate, insurance, commerce, labor relations, rules LEGALIZATION OR PARTIAL Dried cannabis ...... 1 g of the road and criminal liability. Foreign DECRIMINALIZATION? Fresh cannabis ...... 5 g businesses will need to understand and to Beginning on October 17, 2018, dried Solids containing cannabis* ...... 15 g* adapt themselves not only to federal but and fresh cannabis, cannabis oil, and Non-solids containing cannabis* . . .70 g* also to provincial, territorial and municipal cannabis plants and seeds will be publicly Cannabis solid concentrates* . . . . .0.25 g* regulations, which may be quite different available in a legal market. Edibles contain- Cannabis non-solid concentrates* . .0. 25 g* throughout Canada. They also need to be ing cannabis and cannabis concentrates are Cannabis plant seed ...... 1 seed aware that their U.S., South American or likely to be legalized at a later date, possibly *Edibles containing cannabis and cannabis concentrates are European experience of cannabis legaliza- in 2019, unless the Canadian federal gov- not yet legalized. tion will not necessarily translate into the ernment legalizes them earlier; currently Canadian landscape. they remain illegal. When it comes to growing recreational Once legalization occurs, adult individ- cannabis, eligible individuals may grow up CONTEXT uals at or over the minimal age limit chosen to four plants per dwelling-house. However, The legalization of recreational by each province or territory (currently 18 at the time of the writing of this article, two cannabis was an electoral promise made in or 19 years of age, depending on the juris- Canadian provinces, Quebec and Manitoba, 2015 by the Liberal Party of current Prime diction), may legally purchase, grow and have indicated that they want to enact a Minister Justin Trudeau, with the twin goals possess a limited quantity of cannabis. more severe rule or totally prohibit home US LAW www.uslaw.org 3 3
growth, which is likely to bring them into tions will vary such that behavior that is per- • if there is reasonable cause to suspect the conflict with the Canadian government. fectly legal in one province may be prohib- employee of drug use in the workplace; When examined more closely, it be- ited in another. It will be critical for business • after direct involvement in a work-related comes clear that the “legalization” of recre- owners that operate in multiple Canadian accident or incident that is not explained ational cannabis in Canada is actually a jurisdictions to realize that there will be vari- otherwise after investigation; or partial decriminalization, since the posses- ations between jurisdictions and to be aware • as part of a monitoring program for any sion, sale, distribution, production (includ- of what these are and how they might im- employee returning to work following ing alteration and cultivation), importation pact their business. voluntary treatment for substance abuse. and exportation of cannabis outside or in excess of the restrictive legal framework cre- CANADA VERSUS THE U.S. RIGHT REFLEXES AND PREPARATION ated by Bill C-45, remain subject to criminal For businesses operating in Canada Foreign businesses and their lawyers prosecution. and the United States, there are important need to be aware of the changes being en- Business owners should be aware that, differences between the cannabis-related acted to legalize recreational cannabis and unless authorized under the rules enacted rules in the two countries. First of all, U.S. to start their preparation as soon as possible. in Bill C-45, organizations, such as corpora- federal law prohibits the production, distri- These steps may include, initially, gath- tions, municipalities and trade unions, to bution, sale and possession of cannabis in ering legal and medical information, taking name a few, are prohibited from possessing any form, since cannabis is listed as a con- and affirming a clear position, drafting a and distributing cannabis. Canadian crimi- trolled substance under Schedule I of the clear and complete policy, implementing nal law provides specific rules for the crim- Controlled Substances Act. The U.S. federal appropriate internal and external proce- inal liability of organizations through Government tolerates a different state ap- dures, training of managers, and meeting individuals. For instance, senior officers, proach regarding cannabis, where the state with employees to communicate the organi- which may include an intermediate man- has passed a law to this effect.1 Secondly, zation’s policy, as well as explaining the sit- ager who is responsible for managing an im- the business model used by these States is a uation and raising awareness. Some portant aspect of the organization’s model where the cannabis production and businesses will also have obligations vis-à-vis activities, may incur the organization’s crim- distribution system is based on private in- their customers or other people located on inal liability through possession or distribu- dustry looking for growth and profits.2 As their premises or nearby. tion of cannabis themselves or through discussed above, cannabis will no longer be In the end, it is always better to set ex- other agents of the organization, where completely illegal in Canada, however there pectations beforehand and to clarify what is their intent is to benefit the organization. will be a myriad of rules and prohibitions acceptable conduct before the occurrence The fines for organizations illegally possess- that will apply to limit the promotion of of a problem. Change is coming, and you ing or distributing cannabis can be up to recreational cannabis, so as to limit the need to lead from the front! $100 000 for an offense punishable on sum- profitability to some degree. Finally, the This article was submitted for publication on June 26, 2018. mary conviction, or a discretionary amount, guidelines for recreational cannabis use will and was current as of that date. which may be higher, if the company is also be different (for example, the legal 1 National institute of Public Health, Public health ex- found guilty of an indictable offense. minimum age and the possession limits). In pertise and reference centre, « Jurisdictions that have general terms, in U.S. states allowing recre- legalized cannabis », online: