In Advance of Legalization, Ottawa Offers A Crash Course in Cannabis Law

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When the University of Ottawa announced that it would be offering a two-week intensive course in cannabis law, co-teacher Megan D. Wallace didn’t expect it would be a newsworthy event.

“I didn’t think anyone would care,” says Wallace, who’s head of Perley-Robertson, Hill & McDougall’s Not-for-Profit and Charity Law Group. “But we’ve had 20 or 30 media inquiries, which I was really surprised by because it’s a class at a law school. I think this is just so new that people are intrigued by it.”

Today’s legal students will emerge as lawyers into a system in which cannabis is not an illicit substance but simply part of the practice of a variety of different areas of the law.

Along with her colleague Joël M. Dubois, partner at PRH&McD, Wallace will be teaching the course as a survey of the many different possible impacts that recreational cannabis legalization will have on the law—and the possibilities, she says, are widespread. Today’s legal students will emerge as lawyers into a system in which cannabis is not an illicit substance but simply part of the practice of a variety of different areas of the law.

“It is such a significant change from the legal point of view,” Wallace says. “I’m a corporate lawyer and I have a number of clients that are involved with the production of marijuana. It impacts my practice and it’ll impact employment law and property law, human-rights law, criminal law, and everything down the chain. It changes so many different aspects of the law—far more than any other major social change that’s been expressed through legislation, as long as I’ve been practicing.”

“Legalization changes so many different aspects of the law—far more than any other major social change that's been expressed through legislation, as long as I've been practicing.”
Megan D. Wallace

Over the two-week survey course, Wallace and Dubois (along with guest lecturers from their firm) will cover the background of the regulations in place as well as those that are about to be in place, as well as discussing the different implications legalization will have on different areas of the law.

Obviously criminal law will immediately be directly affected, she notes, but other areas of the law will follow very quickly behind it. Will employers retain a stigma against the use of cannabis because the substance has been illegal for so long, and if so, will courts support workers who allege they were unfairly fired for being legal cannabis users? This is only one of the vast field of questions Wallace says legalization is opening up.

Another quandary, she notes, is what will happen to someone who hopes to immigrate to Canada but has a criminal conviction for something that is no longer a crime in Canada.

“There is case law in terms of someone committing a crime somewhere else that’s not a crime here, and there are rules around that. But it’s always interesting, particularly given the taboo around marijuana. We just don’t know because it hasn’t been discussed, or debated, or reviewed by the court within the context of legal recreational marijuana in Canada.”

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The question of cannabis-impaired driving has been pressing enough that the Liberals have introduced a bill to handle it, but Wallace notes that, legally, the subject is surrounded with question marks. There’s no breathalyser to test for cannabis impairment, so it’s uncertain how police will determine whether a person is under the influence of cannabis.

Complicating the question is the lack of scientific research into cannabis impairment. A driver can get into a car after having two drinks and remain under the legal limit, but there is no scientific consensus on whether a driver who has has consumed only a small amount of cannabis should be considered safe to drive.

“A lot of people who practice criminal law are really wondering what’s going to happen,” Wallace says, stressing that she is not a criminal lawyer and has not fully reviewed impaired driving law as it pertains to medical cannabis. “I think a lot of this stuff is going to be figured out on the ground once the laws are enforced.”

The ‘High Driving’ Quandary

Consider the complexity of the process that police must go through to process a person for drunk driving. These legal protections, Wallace stresses, are the product of in-court cases brought about due to drunk-driving arrests that broke the law or violated drivers’ rights. Decisions in those cases defined the rules by which drunk-driving must be prosecuted.

“There's a huge set of case law that interprets and discusses what police can do. ‘What's probable cause, when can they do this, when can they do that?’ We don't have any of that case law in terms of marijuana.”

“There’s a huge set of case law that interprets and discusses the lines there, and what police can do. ‘What’s probable cause, when can they do this, when can they do that?’ We don’t have any of that case law in terms of marijuana. Theoretically, the same kind of arguments will apply, but we’re going to have a lot of traffic in terms of impaired driving under the influence of marijuana. There will probably be a lot of court cases on that right out of the gate, as soon as the police start enforcing because people are going to be looking for the legal standards.”

The nature of the common law system, Wallace says, is that as new conditions reveal themselves, lawyers rely on existing case law to make sense of them, referring to previous decisions of the courts to determine how the law should be interpreted.

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“The first few lawyers to argue [cannabis cases] will argue analogies to the existing body of law in the area that’s comparable,” she says. “I expect a lot of the similar law, so law relating to recreational use of alcohol in all of these contexts will probably be found to apply, just with slightly different emphasis. But we don’t know. Someone’s going to have to argue in front of a court before we actually do.”

Stigma & Smoking Concerns

Cannabis has been illegal in Canada for just under a century, and we’ve been closely enough associated with the United States for Canadians to have been exposed to the American government’s puritanically moralistic approach to the drug. That means the lingering stigma against cannabis will be a real and difficult issue.

The combination of social stigma and a lack of case law, Wallace says, means that the rollout of legalization is going to be a hectic process for the legal system.

Wallace says she was surprised to see the Task Force on Cannabis Legalization and Regulation recommend allowing Canadians to grow up to four plants, and even more surprised to see the Liberal government bring the recommendation into the legalization Bill C-45.

“There is so much taboo and resistance, and people really alarmed about marijuana, that I just didn’t anticipate that that was going to be out there,” she says. “My perception is such that it’s still something that people are very conservative about.”

Allowing Canadians to grow a stigmatized psychoactive plant at home opens a series of other questions that have not been resolved in the legislation.

“Are there going to be requirements for that? Like you would have when you were storing a gun?” she wonders. “Are they just going to let me have it on my back porch, in my garden? Or, do I have to have it in a separate room up high away from children? I think people still view it as something that needs to be very heavily guarded. I’m cautiously optimistic that it’s just going to be, ‘Sure, you can have four plants.’ There are lots of plants that we grow in our homes that can screw you up or that can be toxic, or what have you. But with marijuana, people tend to wave their arms and say, ‘Think of the children.’ It’s a moral panic.”

Allowing Canadians to grow a stigmatized psychoactive plant at home opens a series of other questions that have not been resolved in the legislation.

She notes that Canada is full of toxic and dangerous plants that Canadians are not prevented by law from growing at home. No law exists, she notes, compelling citizens to remove poison ivy from their property, even though in addition to harming skin, it can life threatening if eaten, or if it’s burned and passers-by inhale the smoke.

“I don’t think we have rules about the toxicity of plants in gardens,” she says. But while alcohol, she notes, is life-threatening at high doses, “No one is standing in the LCBO saying, ‘Two bottle limit, because if you have more than two bottles, that’s toxic.’ We ignore all the issues with alcohol as a society— yet with when we’re talking about the regulation of marijuana, we’re discussing some of the current concerns that maybe a wise society would have in terms of alcohol. I don’t know that the science supports the idea that cannabis is as harmful [as alcohol or tobacco]. But it’s certainly a perception we have because of the culture of prohibition.”

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The combination of social stigma and a lack of case law, Wallace says, means that the rollout of legalization is going to be a hectic process for the legal system—and she finds the process fascinating. Even the current debate about whether or not landlords should be allowed to ban cannabis smoking in their dwellings will depend on the way existing legislation allowing smoking rules are written, province to province. For example, laws that specify they regulate cigarette or tobacco smoking may be open to question when it’s cannabis being smoked.

“A smart drafter would’ve made [a smoking regulation] wide in all expanses, but that simply might not be the case,” she muses, “There’s lots of pieces like that that will be minor for most of us, but very, very important issues for a few people who may wind up taking it to court. It’s pretty neat.”

Wallace and Dubois won’t begin teaching until January, and in that time alone, Wallace cautions, a lot can happen—and a lot will continue to happen as they teach their class, and after.

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“We’ll probably have a couple months leading up to figure out what is changing, and other than that, we’ll be talking about here’s what’s changed so far: here’s what we see as being the next big issues, and here’s how these might be worked out,” she says. “But this will be a process of a number of years in terms of figuring out the implications. It will impact areas of practice across the board, which is very distinct in terms of changes that have happened since I’ve been practicing.”

Wallace laughs, considering the breadth of possible effects.

“For all of us that are really a bit nerdy, it’s just interesting to have this context where we’re coming out with this entirely new regulatory scheme over something that has been in existence in Canada, right?”