BC Cannabis laws: A breakdown

Now that cannabis has been cleared by our federal government for legal sale in October, many provinces are turning their minds to the tough questions that will need to be answered in order to make this pipe dream a reality.

In BC, the provincial government has already put a significant amount of thought into what legal marijuana will look like for British Columbians. In early February, the B.C. government made an announcement in relation to the use of recreational marijuana in our province. This provided us with more clarity around how the use, regulation and sale of the drug will look in BC will look once it becomes legal.

And while the announcement answered some big questions, it also left a lot hanging in the balance.

So let’s break it down…

Tenancy Issues

One of the most overlooked aspects of these new laws has to do with residential tenancy.

The Senate tried to give provinces the power to quash personal home growth of the plant, but the House refused to allow it. Our government seems strongly in favour of allowing citizens to legally grow cannabis in their homes. However, like all things, it will be subject to certain restrictions.

In BC, adults will be allowed to grow up to four cannabis plants per household.

But if you plan on using natural light to help cultivate your crop, you might need to think again. The provincial government has mandated that marijuana plants must not be visible from public spaces off the property.

Renters and homeowners in shared spaces, like condos, may also be subject to more restrictions than others.

The government has said that while they may not have the power to limit home growth, landlords and strata councils will. It is very likely that these governing bodies will be able to restrict and even prohibit home cultivation and smoking indoors and on shared property.

And while this may seem shocking at first, we have to remember that it all boils down to issues around the quiet use and enjoyment of property.

The cultivation of marijuana plants often involves the use of high wattage bulbs as well as humid growing conditions. This can cause insurance issues for landlords, strata councils, and even neighbours.

Moreover, it is an uncomfortable reality that the odour associated with smoking marijuana can bother some people. This is not unlike the odour associated with smoking cigarettes.

For these reasons, both of these activities may pose a problem for your neighbours’ quiet use and enjoyment of their property.

Under current laws, landlords cannot discriminate against potential renters on enunciated grounds. They can, however, be selective about whom they rent to. They can also prohibit tenants from engaging in certain activities inside their units, such as smoking and owning pets. The same can be said about strata councils, to a lesser extent.

But it is important to know that these types of restrictive clauses need to be signed at the time the tenancy agreement is made. This ensures that both parties know what they are getting into, and sets a standard of conduct for the future. A landlord cannot enter a “no smoking” clause six months into the tenancy, for example, without the express consent of the tenant.

The big question here will involve what happens to existing tenancy agreements once marijuana becomes legal. Will landlords be able to force tenants to sign new agreements, prohibiting the cultivation of marijuana in their property? Or will they be out of luck?

The government has yet to weigh in.

Drug-Impaired Driving

Perhaps the single biggest concern expressed by government, both provincial and federal, since these laws have been drafted has been around drug-impaired driving.

The government seems to believe that once marijuana becomes legally available, there will be an inordinate amount of drug-impaired drivers on our roads. Statistics from states like Colorado and Washington do not entirely support this position.

In any event, the presence of impaired drivers on our public roadways is undesirable to say the least.

No one is in favour of impaired driving. But the government’s answer to curbing this perceived danger is problematic – both at the federal level and the provincial.

The federal government has already passed Bill C-46, a sister bill to C-45, that alters the Criminal Code to create a variety of new offences related to drug-impaired driving and even new roadside drug testing measures.

Our provincial government is likely to follow suit.

Come October, the BC government plans on doing two things: first, creating a 90-day immediate roadside prohibition scheme in relation to drug-impaired drivers and second, creating a zero-tolerance policy for the presence of tetrahydrocannabinol (THC), in new drivers enrolled in the graduated licensing program.

These two proposals will mirror current driving laws in relation to alcohol consumption—and while this sounds like a great idea at first, it has one big problem…

…accurately testing for marijuana impairment on the roadside.

At this point, technology used for detecting marijuana impairment is shaky at best. While police officers can employ a saliva test to detect the presence of THC in a driver, that’s really all they can do. The information generated from these types of tests tell us very little—if anything—about whether or not that driver is actually affected by the drug.

A test for marijuana impaired simply does not exist in the same way that it does for alcohol impairment.

This is because THC is not processed by the human body in the same way as alcohol. While alcohol is water-soluble, THC is fat-soluble. This means that the chemical can remain in the human body for an extended period of time, and long after the user has stopped feeling its effects.

And while we have no idea how the 90-day IRP drug scheme will look, it’s safe to say that the implementation of any punitive scheme for drivers in this province, based on drug-impaired driving, poses serious concerns for our charter rights so long as there is no accurate and reliable means to determine impairment.

Public Use

The government wants to limit where you can smoke marijuana once it becomes legal. While it maintains that people will generally be allowed to smoke in public spaces, it believes that some places might be more appropriate than others.

Marijuana smokers will not be allowed to light up in places reasonably expected to be frequented by children, including beaches, parks and playgrounds. It will also be illegal to smoke marijuana in a motor vehicle, even if you are a passenger.

And while this may sound somewhat restrictive, we should count our blessings in this regard: a number of other provinces have already announced their intention to prohibit the public smoking of marijuana full stop.

So once marijuana becomes legal, make sure to keep it out of your car and only smoke in acceptable venues, like permissible public locations or your home…so long as your landlord is okay with it.