On September 8, 2017, the Ontario government announced that it would introduce legislation to govern the lawful use and retail sale of “recreational cannabis.” As reported in the Summer 2017 edition of the Education Law Newsletter, the federal government’s Cannabis Act, introduced on April 13, 2017, would provide Canadians with legal access to cannabis by July 1, 2018. However, provincial governments would have to make corresponding legislative and policy changes with respect to cannabis use and retail sales to fully actualize the CannabisAct.

Current Status of Recreational Cannabis Use and Sale

Currently, the Controlled Drugs and Substances Act makes it a criminal offence to produce, buy, sell, possess or traffic in cannabis, except where access to cannabis is permitted for medical purposes. Bill C-45, the Cannabis Act, would create new rules for the production, distribution, sale and possession of cannabis in Canada. Bill C-45, if passed, will come into force no later than July 1, 2018. The CannabisAct passed 2nd Reading in Parliament on June 8, 2017 and has been referred to the Standing Committee on Health.

Also introduced on April 13, 2017 was Bill C-46, an Act that would amend the Criminal Code to include new provisions that address drug-impaired driving. In turn, Bill C-46 passed 2nd Reading on May 31, 2017 and is presently being reviewed by the Standing Committee on Justice and Human Rights. Until Bill C-45 and Bill C-46 are passed and come into force, all existing laws respecting cannabis remain in effect.

Ontario’s Cannabis Framework 

The Ontario government intends to regulate cannabis use and sale by implementing a “safe and sensible framework”. Such framework will consist of the following:1

  1. In Ontario, the minimum age to use, purchase and possess “recreational cannabis” will be 19.
  2. Cannabis use will be prohibited in public places and workplaces, including schools. The Ontario government does not intend, at this time, to allow licensed “pot” establishments.
  3. Individuals under age 19 will be prohibited by provincial law from possessing or consuming recreational cannabis. Police will be authorized to confiscate cannabis from youth.
  4. The Liquor Control Board of Ontario will oversee the retail sales of cannabis in Ontario. There will be at least 150 stand-alone retail stores by 2020, and online retail outlets from July 2018 onward. All cannabis sold in Ontario will be obtained from the federally-licensed commercial cannabis producers who are authorized to sell cannabis to individuals with a legal prescription under the federal Access to Cannabis for Medical Purposes Regulations.
  5. The illegal cannabis “dispensaries” and “clubs” will not be considered legal retailers under Ontario’s framework.

Youth Possession 

The Cannabis Act specifically provides that youth under age 18 would not face criminal prosecution for possessing or distributing up to 5 grams of dried cannabis or its equivalent.2 However, while the federal government has effectively decriminalized minor possession by youth, it is left open to the provincial governments to regulate youth possession through ticketing and/or confiscation.

Indeed, the Ontario government has now indicated that it intends to regulate youth possession.3 Assuming the Ontario government passes new legislation, youth under age 19 in Ontario would be prohibited from possessing or using recreational cannabis and police would be permitted to confiscate small amounts.

What’s Next for Schools

The Ontario government has stated that it will be consulting with municipalities to determine appropriate locations for new retail cannabis outlets. There is no indication that they will be consulting specifically with school boards or independent schools.

We confirm that the changes resulting from the Cannabis Act, or new measures the Ontario government intends to implement, do not give students the right to bring cannabis to school, however small the amount. Both levels of government have signalled the intention not to charge youth with criminal offences, but rather to confiscate cannabis and spend money on public education campaigns about the harm caused by cannabis use.

Schools may continue to have policies that prohibit students from possessing, using, sharing or selling cannabis at school.

After the Cannabis Act is passed, and after the Ontario government introduces and passes the legislation required to implement its cannabis “framework”, school boards and independent schools will need to revise existing policies to ensure consistency.