Law Times - Newsmakers

Uncertainty in lead-up to 'green rush' Possession will become a ticketable offence BY JENNIFER BROWN, FOR LAW TIMES LEGALIZATION OF recreational cannabis is coming and the regulation of it has had many scratching their heads for the last year wondering how it will all roll out in time for July 1, 2018. In April of this year, the federal government ta- bled bill C-45, the Cannabis Act, in Parliament. The law will govern the sale and use of marijuana for rec- reational purposes, setting a July 1, 2018 target date for implementation. Health Canada will determine who can produce cannabis and it will be the provincial level that will determine how distribution and retail sales is han- dled. "This legislation is a long time coming and it rep- resents years of study and a shift in culture," said Hafeez Amarshi, Crown counsel with the Public Prosecution Service of Canada, who spoke at a con- ference of the Federation of Asian Canadian Lawyers in November. "If you look at the stats for marijuana use in Canada, something like 30 per cent of Canadians recreationally uses marijuana. That translates into millions of Canadians, so from a public policy or Rule of Law point of view, we had millions of Canadians break- ing the law so it's about time this change came." Medical marijuana has been legal in Canada since 2001, but didn't start as a com- mercial industry until about 2013. In early September 2017 the Ontario government announced it is taking control of recreational marijuana sales through 150 Liquor Control Board of Ontario-run mari- juana stores run by the Ontario Cannabis Retail Corporation. At the federal level, possession of dried cannabis and oil, by adults, will be permit- ted effective July 1, in small amounts — 30 grams or less in public, while at home the amount seems to be subject to interpretation, said Amarshi. From 30 to 50 grams it will become a "ticketable offense" resulting in a $200 fine. "Above 50 grams is where things start to get complicated and the criminal law is engaged. It's still an offense that you can be charged under the criminal law, under the new Cannabis Act for holding more than 50 grams," said Amarshi. Right now, police issue about 20,000 to 25,000 simple possession charges every year but it has been dropping. The question remains about what will happen with those charges next. "The way we deal with it, in my office, [is that] we offer diversion outside the criminal justice system to community service or donation," Amarshi said. In Ontario, people will have to be 19 years old to legally consume marijuana, and across the country the minimum age has to be 18 years of age. But, just as you can't consume alcohol in a public park, you won't be able to consume marijuana in a public space. For the time being consumption will only be legal in one's home. Edibles will be legal within a year of cannabis itself being legal recreationally, accord- ing to Alice Tseng, a pharmacist, lawyer and patent agent at Blake Cassels & Graydon LLP, who specializes in the pharmaceutical industry. There will also be a lot of restrictions from an advertising perspective on anyone who is a seller or provider of services related to cannabis. Victor Liu, partner at Goodmans LLP, says it's likely the recreational market will be challenging because whatever the provinces decide to do regarding regulation on day one of legalization, it will be different a year down the line. "Being able to advise clients on such a crazy legal landscape — your client's success is going to be the ability to do things across the country and understand all the laws that apply to it," said Liu, who also spoke at the FACL conference in Toronto in November. Individuals will be able to grow up to four plants for recreational use for residents, and provinces and municipalities can make that stricter. There could also be questions about transportation of cannabis products between provincial borders. "All of these issues that could come up will be the job of legal counsel to understand and to realize there is going to be issues and to advise accordingly," said Liu. "For most clients, they are business people and they have this great idea and are not focused on the nitty gritty legal compliance aspect, especially for something as complex and new as this. It creates a lot of opportunities but a lot of potential landmines, but it's also an interesting time to be a lawyer in this space." Then there is the question of dealing with the consumption of cannabis and driving. When it comes to impaired driving, Amarshi said it will be "complicated." Under the proposed legislation a police officer can demand a test of saliva during a traffic stop, if they reasonably suspect you are impaired by a drug. A kit provided to police will allow them to conduct the test. top stories Victor Liu says there are many oppor- tunities for lawyers who advise clients involved in the production of recre- ational marijuana, but also potential landmines. APRIL 2017: The federal government tabled bill C-45, the Cannabis Act, in Parliament. The law will govern the sale and use of marijuana for recreational purposes, sponsored by federal Justice Minister Jody Wilson-Raybould. August 2017: The Canadian Bar Association joined other organizations in sending a letter to Finance Minister Bill Morneau to oppose proposed tax changes that would impact lawyers. Jed Chinneck was one of a number of lawyers who spoke out against the proposed changes, saying they would negatively affect lawyers and small firms. September 2017: Lawyers launch a petition supporting the tax proposals and criticizing the CBA's stance in September. Chris Rudnicki was one of a number of lawyers who planned to cancel their CBA membership over the organization's protest. Rudnicki said the CBA's membership was not adequately consulted before the organization took its stance. In October, Morneau announced the government would make changes to the proposals. September 2017: LSUC's strategic communications steering group put forward a motion to change the LSUC's name. Benchers agreed to drop "Upper Canada" from its name that day, with Julian Falconer arguing passionately for the change. September 2017: LSUC benchers approved a motion to allow non-profits and charities to provide legal services through practitioners. The changes will allow non-profits and charities to employ lawyers to provide legal services directly to clients rather than referring them out. Ontario Trial Lawyers Association president Claire Wilkinson said she did not anticipate this initiative would create a slippery slope that would eventually lead to non-lawyer owned legal practices for profit, which was a concern to some in the personal injury bar. November 2017: Law society benchers voted to choose the Law Society of Ontario as the regulator's new name. LSUC Treasurer Paul Schabas was supportive of the name change, saying the regulator needed to make the change to "reflect who we are today and not who we were 200 years ago." September 2017: The Law Society of Upper Canada started to implement its statement of principles requirement, sparking a debate over whether the new obligation was constitutional. The requirement was one part of 13 recommendations in a report passed by Convocation in 2016 to battle the barriers faced by racialized licensees. Janet Leiper was co-chair of the Challenges Faced by Racialized Licensees Working Group, which conducted four years of research and consultations to produce the report. 2017 YEAR IN REVIEW December 2017: LSUC benchers voted against giving lawyers an exemption as conscientious objectors to the statement of principles. Bencher Joe Groia put forward the motion for exemption, arguing the requirement was unconstitutional and compelled speech. Talking Points 14 December 2017 Continued on page 15

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