Law Times

Law Times • sepTember 9, 2013 Page 9 FOCUS Debate rages over using medical marijuana in public BY MARG. BRUINEMAN For Law Times H ow and where people can use marijuana for medical purposes have been the subjects of recent challenges and debates. This summer, a Hawkesbury, Ont., woman learned she couldn't smoke medical marijuana at a Montreal amusement park. She became upset and said there was no justification for the refusal. The Human Rights Tribunal of Ontario has had to deal with this issue on more than one occasion in recent years. It has held that those in public who haven't chosen to be in the company of marijuana smokers shouldn't have to breathe in their secondhand smoke. "Although the evidence regarding the effect of side stream or second-hand smoke on people in proximity to a marijuana smoker is not without its problems, it is reasonable to conclude that regardless of the research, many people have legitimate concerns about the effect of second-hand marijuana smoke on their health and employment," says Karen Jensen, a partner with Norton Rose Fulbright Canada LLP in Ottawa. "While it is unfortunate that those who use marijuana for medicinal purposes feel ostracized and excluded when not permitted to smoke in public places, it is a fundamental principle of human rights law that one's rights will sometimes necessarily be constrained by the legitimate rights of those around us." Earlier this year, the tribunal found there should be some reasonable limitations for those smoking medical marijuana. In Gibson v. Ridgeview Restaurant Ltd., adjudicator Brian Eyolfson heard a complaint from a man banned from Burlington, Ont., restaurant Gator Ted's Tap & Grill after he lit up. Steve Gibson's complaint of discrimination on the basis of disability in services dates back to 2005, a year after he received authorization to possess medical marijuana for a spinal cord injury that limits his neck movement. He said he never smoked on the premises. On May 18, 2005, he said he went to the parking lot to smoke after ordering a beer. There, he said, one of the owners confronted him and told him never to come to the restaurant again. The restaurant's owners contended Gibson's smoking in close proximity to the restaurant had resulted in many complaints and suggested they had asked him several times to move away from the entrance when using marijuana. Mediation in 2007 failed to resolve the issue and a hearing before the tribunal went on hold CCLA supports removing s. 13 Continued from page 8 and suggested it fosters equality, human dignity, and tolerance. Representatives made a presentation to the Commons standing committee on justice and human rights in 2010 and then issued statements warning that its repeal could result in the proliferation of hate speech on the Internet. The Canadian Civil Liberties Association supports the removal of the hate-speech provision of the Human Rights Act. Cara Zwibel, the association's director of the fundamental freedoms program, says the section didn't fit with the Human Rights Act. "Most of the act is about one thing and s. 13 is fairly different and that's why we believe it doesn't belong there," she says. The group feels the Human Rights Act isn't the place for those who have been subject to hate speech to seek redress. And it feels the best approach is to denounce hate speech and counter it. As an example of the concerns, Zwibel points to the case of Saskatchewan (Human Rights Commission) v. Whatcott in which a Saskatchewan man landed in hot water for distributing flyers with a hateful message. Zwibel suggests countering the message through, for example, flyers with another point of view and opinion pieces might have been more appropriate. But because the case made it to the Supreme Court, it garnered national attention that Zwibel says was almost a boost to the man's opinion. "This repealing the legislation is a positive step," she says of the move to repeal the section. "This wasn't a particularly effective tool." Ottawa-based human rights lawyer Richard Warman has plenty of first-hand experience using the section in his battles against neo-Nazis and white supremacists. He says almost all of his 16 successful cases under s. 13 involved calls for ethnic cleansing and genocide. None, he adds, resulted in successful criminal prosecutions. He describes it as a defence that exists in almost every other western democracy. "The Conservatives express sympathy when cyber bullying leads to tragedies like the death of Rehtaeh Parsons and then turn around and enable the same bevaviour by repealing the only real legal control in Canada on poisoning the Internet with religious and racist hate," he says. "The Conservatives say that's what the Criminal Code is for, but that's only because, to the best of my knowledge, none of them have ever tried to have charges laid or actually done any work to stop hate group activity." Warman often refers to Whatcott in his passionate pleas to retain hate-speech provisions in the Human Rights Act. February's decision upheld the constitutionality of civil controls on hate speech that Warman says represented a major change from Canada (Human Rights Commission) v. Taylor several years back. While Taylor set the standard of hatred and contempt so as to prohibit only "communication that involves extreme feelings and strong emotions of detestation, calumny, and vilification," the judges split 5-4 on the decision. In Whatcott, the decision was unanimous and included the support of Chief Justice Beverley McLachlin, who had previously been the lead judge on the dissent in arguing the section was unconstitutional. In Whatcott, Justice Marshall Rothstein acknowledged a tension in balancing freedom of expression with the prohibition of hatred. Hate speech "rises beyond causing emotional distress to individual group members," wrote Rothstein. "It can have a societal impact. If a group of people are considered inferior, subhuman or lawless, it is easier to justify denying the group and its members equal rights or status. Hate speech lays the groundwork for later, broad attacks on vulnerable groups. These attacks can range from discrimination to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide." LT while it heard a case with similar issues. In that case, Ivancicevic v. Ontario (Consumer Services), the tribunal decided there was a bona fide justification for prohibiting smoking medical marijuana in public. Based on the evidence, it found that passive inhalation of second-hand marijuana smoke could lead to positive urine tests for the drug. Despite that ruling, Gibson wanted to proceed with his hearing. Eyolfson, however, dismissed his complaint in July. "In my view, the complainant has not established that he has any disability-related need to smoke marijuana in close proximity to the restaurant's entrance or that the respondents' requirement that he not do so created any disadvantage for him in relation to disability," wrote Eyolfson. But Toronto lawyer Stacey Nichols sees many aspects related to the use of medical marijuana as a developing area. "I am 100 per cent for people being able to use their medicine where and when they need it," says Nichols of Neuberger Rose LLP. The problem is the current rules only allow for smoking Concerns about second-hand smoke from using medical marijuana in public are legitimate, says Karen Jensen. medicinal marijuana in its dried form. People can't extract it for use in brownies or cookies or develop it into a cream applied topically. "Baking dried marijuana into a cookie or brownie doesn't give the same pain relief," says Nichols in explaining the dilemma. "At the end of the day, smoking is really the only available option." As a result, Nichols suggests there's still plenty of room for society and the courts to weigh in on the issue. LT E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Suite 900 45 Sheppard Avenue East, Willowdale, Ontario M2N 5W9 Toronto, Ontario M2N 5W9 Telephone or Fax (416) 930-1370 (905) 731-5812 evlitigation@rogers.com Vlit_LT_Jan9_12.indd 1 12-01-03 11:38 PM Let us open the right door for you We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law firm situated in the heart of Toronto. We are comprised of ten lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 www.lawtimesnews.com Untitled-1 1 13-09-04 8:27 AM

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