As of October 17, 2018, the recreational use of cannabis will be legal in Canada. In Québec, the legal framework established by the Federal Cannabis Act[1] must be understood in conjunction with the Québec Cannabis Act[2]. This framework for the regulation of cannabis use is called to be supplemented by municipal by-laws and other rules that employers, landlords or managers may put in place.

This article provides an overview of the key concepts to this new approach to governing cannabis use in Quebec. It also identifies some forthcoming challenges.

The Legal Framework concerning Cannabis in Québec

The Federal Cannabis Act allows any individual eighteen years of age or older to possess in public up to 30 grams of dried cannabis, or an equivalent quantity of a form that is not dried[3]. The equivalent quantities of forms other than dried cannabis are listed in Schedule 3 of the Federal Cannabis Act.

Although the Federal Cannabis Act permits cannabis cultivation of up to four plants per residence[4], in Québec, it will be forbidden to grow cannabis for personal use or possess a cannabis plant in a dwelling[5].

Furthermore, the Québec Cannabis Act does not permit the possession or smoking of cannabis in certain public places, in particular those mostly frequented by minors, such as primary or secondary educational institutions. The Québec Cannabis Act also restricts the smoking of cannabis in the same places where the use of tobacco is prohibited, such as restaurants, the common areas of residential buildings, workplaces, tourist accommodation establishments, bus shelters, the patios of restaurants, etc. [6]

Cannabis may only be purchased from a retailer that abides by provincial regulations. In Québec, only the Société québécoise du cannabis is authorized to sell cannabis to the public.[7] The Federal Cannabis Act prohibits the sale and the provision of cannabis to anyone under eighteen years of age.[8]

The marketing and advertising of cannabis are also strictly regulated, as is the case with tobacco products. On these topics, the sections of the Federal Cannabis Act[9] are complemented by those of the Québec Cannabis Act[10].

In terms of employment law, the Québec Cannabis Act confirms that an employer, because of its management rights, may limit and even prohibit any form of cannabis use by employees in the workplace.[11] The Act respecting Occupational Health and Safety was clarified to specify that a worker must not perform work while impaired by cannabis, and that the employer must ensure that this situation does not occur.[12]

It is worth noting that the current federal regime regarding cannabis use for medicinal purposes continues, and that access to cannabis is maintained for those who have already obtained approval from their health care provider. Nonetheless, restrictions on use such as bans on smoking in certain places still apply to cannabis for therapeutic use.[13]

Some Challenges that Lie Ahead

It is already possible to envisage certain issues that will be raised by both this new framework for cannabis regulation as well as the additional rules that will supplement recent legislation.

The points of divergence between the Federal Cannabis Act and the Québec Cannabis Act — in particular with regards to growing cannabis in one’s home or perhaps concerning the legal age to use cannabis should Québec derogate from the age of majority as determined by Ottawa — might be the source of certain challenges. Likewise, announcements by several municipalities of their intention to prohibit the smoking of cannabis in all public places, both interior and exterior, could lead to the exercise of legal recourse. How such actions will be decided remains uncertain.

In commercial or residential tenancy law, it is conceivable that there will be claims that smoking cannabis, while legal, constitutes in certain circumstances a nuisance that exceeds the limits of tolerance required by article 976 C.C.Q.

In the workplace, aside from the possibility for the employer to prohibit the use or consumption of cannabis by employees in the workplace, employers could equip themselves with internal policies on cannabis, some of which may pertain to work-related social events involving employees. These policies will have to be justified when examined by the courts.

Let us not forget that, as of October 17, 2018, the only types of cannabis authorized for sale will be dried cannabis, cannabis oil or resin, and fresh cannabis. No other product derived from cannabis, such as edible products, will be allowed to be sold in Québec unless the government permits it by way of regulation.[14] This second phase will also generate questions and lead to adjustments, notably regarding the restrictions on use that currently primarily target the smoking of cannabis.

The rules encompassing the marketing of cannabis also have the potential to present difficulties for authorized producers. The prohibition on “direct and indirect” advertising to promote cannabis[15] raise questions about the scope of the ban, and even its validity when weighed against freedom of expression. Similarly, the prohibition on using a drawing or a picture of a cannabis leaf[16] could be challenged before the courts.

In terms of transportation, it should be noted that, while it will be permitted to travel in Canada while possessing the legal quantity of cannabis, it remains illegal to cross the Canadian border with cannabis, be it to enter or to leave the country.

Comments by McCarthy Tétrault

The legal framework pertaining to the recreational use of cannabis in Canada and in Québec is evolving and will likely lead to challenges in its application.

This framework will be supplemented by municipal by-laws and other rules put in place by employers, landlords or managers, all of which could raise issues of interpretation, and even conflicts in implementation. Whether it is regarding employment law, leases, or an advertising issue, it will be crucial to carefully assess each situation in order to identify the applicable rules and their scope.