It goes without saying that marijuana is an illegal drug, the use and/or possession of which attracts criminal sanctions under the Controlled Drugs and Substances Act,1 as well as the Criminal Code.2 In the education context, students who use and/or possess illegal drugs, such as marijuana, will be subject to disciplinary consequences under the Education Act, the Provincial Code of Conduct, and school policies.

Section 306 of the Education Act,3 lists possession of “illegal drugs” as one of the activities leading to possible suspension:

Activities leading to possible suspension

306. (1) A principal shall consider whether to suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate:

2.  Possessing alcohol or illegal drugs.

Further to the authority under section 301 of the Education Act, the Government established a Code of Conduct governing the behaviour of all persons in schools. Under subsection 301(2) of the EducationAct, one of the purposes of the Provincial Code of Conduct is “to discourage the use of … illegal drugs.”

In that regard, the Provincial Code of Conduct provides that members of the school community must not “be in possession of, or be under the influence of, or provide others with alcohol or illegal drugs.” Compliance with all applicable federal, provincial, and municipal laws is another requirement of the Provincial Code of Conduct.

A new issue may be increasingly arising in Canadian schools: how to deal with students who possess and use marijuana for medical purposes?

Medical Marijuana

In Canada, use and possession of marijuana for medical purposes has been permitted under regulations to theControlled Drugs and Substances Act. If a person has lawfully obtained a licence to use marijuana for medical purposes, they are no longer at risk for criminal sanctions. The question for schools is: whether a student, who would normally be subject to disciplinary consequences, is lawfully entitled to possess and use marijuana for medical purposes? If the answer is ‘yes’, the strict application of the Education Act, Provincial Code of Conduct and school policies may not be appropriate in every case.

The Government made a regulation under the Controlled Drugs and Substances Act dealing with “medical marijuana” called the Marihuana Medical Access Regulations (the “MMAR”).4  The MMAR will operate until March 31, 2014, when it will be repealed and replaced by a new regulation called the Marihuana for Medical Purposes Regulation (the “MMPR”)5.

The MMAR, and after March 31, 2014 the MMPR, allows patients to lawfully possess certain dried forms of medical marijuana. There is no age restriction on who may apply for a license under either regulation, and in that regard the regulations do not discriminate on the basis of age.

Currently, and until March 31, 2014, there are two lawful means of obtaining marijuana for medical  purposes:

  1. Under the MMAR, by application to Health Canada; or
  2. Under the MMPR, where a person submits a document signed by a doctor or licensed health care practitioner directly to a licensed marijuana producer.

The Application under the MMAR must contain:

  1. Applicant’s Declaration, the contents of  which are set out in section 5 of the MMAR and include detailed information about the applicant and the acceptance of medical risk;
  2. Medical Declaration from a medical practitioner, including detailed information about the reason marijuana has been prescribed as treatment; and
  3. Two copies of a current photograph of the applicant.

A person who has been authorized or licenced by application to Health Canada under the MMAR will receive, and mustproduce to a police officer on demand, an authorization containing the following information:

  1. The name, date of birth and gender of the holder of the authorization;
  2. The full address of the place where the holder ordinarily resides;
  3. The authorization number;
  4. The name of the medical practitioner who made the medical declaration under the MMAR;
  5. The maximum quantity of dried marijuana, in grams, that the holder may possess at any time;
  6. The date of issue; and
  7. The date of expiry.

A person who is authorized to use and possess marijuana for medical purposes must obtain the marijuana from a legal supplier, which at present includes Health Canada or a supplier who is licenced by Health Canada. Legal suppliers will provide dried marijuana in sealed packages.

If the patient has not obtained authorization to use medical marijuana by application to Health Canada, the only other lawful means of possessing and using marijuana for medical purposes is under the MPMR process. The patient would have to submit a medical document signed by a doctor and a registration form directly to a “licensed producer.”

A licenced producer must be licenced under section 25 of the MPMR. As of the date of publication, only three licenced producers are listed on Health Canada’s website: CanniMed Ltd., Mettrum Ltd. and The Peace Naturals Project Inc.6

Verification of a claim of lawful access to medical marijuana under the MPMR can be done by reviewing the packages of dried marijuana provided by a licenced provider to a patient.

Managing Medical Marijuana in Schools

A student’s claim to be authorized to use and possess marijuana for medical purposes should be thoroughly reviewed and verified by school authorities. Until a student proves otherwise, marijuana is an illegal drug that attracts criminal and disciplinary sanctions. A student who is lawfully entitled to use and possess marijuana should be able to confirm the following;

  • That the student has provided documentation confirming authorization from a physician and Health Canada to use marijuana for medical  purposes;
  • That the marijuana has been supplied to the student by a licenced provider, and is possessed only in a lawful form (i.e. dried marijuana);
  • That the marijuana is used only as directed by the physician and authorized by the licence. It should be noted that Health Canada does not endorse smoking marijuana as a form of ingesting the drug for medical purposes.

The school will then be in a position to evaluate the information provided by the student, and determine whether the student lawfully uses and possesses marijuana. If so, the school should then consider whether the circumstances give rise to a duty to accommodate the student’s medical disability. An example of accommodation may be to waive the strict application of disciplinary consequences for possession of an illegal drug and/or impairment while on school property.

The school will have to consider, in the context of the Human Rights Code, whether the student’s disability and request to use and possess marijuana is reasonable accommodation, or whether parameters on the use and possession of marijuana are required to protect the interest of the school community. Each case should be evaluated on an individual basis.

Alex Kitz