By Ryan McFarlane

On April 11, 2011, Ontario Superior Court Justice Donald Taliano ruled in the case of R. v. Mernagh that the Canadian medical marijuana legislation and Sections 4 and 7 of the Controlled Drugs and Substances Act are in breach of Section 7 of the Canadian Charter of Rights and Freedoms (the right to life, liberty and security of the person) because often people who genuinely need the drug to treat a seriously illness cannot obtain the needed declaration to do so. In doing so, the Court removed marijuana from Sections 4 and 7 of the federal legislation, the Controlled Drugs and Substances Act, thereby decriminalizing marijuana cultivation, possession and use (but not trafficking) for all Canadians. This should apply across Canada, as the legislation is Federal; however, opinion is divided. In BC the Attorney General’s position is that it will continue to prosecute.  Justice Taliano gave the federal government three months to respond to the decision before it will take effect. You can expect that this ruling will be appealed.

Over the course of the three-week trial this past January, the Court heard from many interested parties and patient witnesses from all over the country. All of the patients who testified were seriously ill and either could not get a doctor to authorize medical marijuana for their use or had to go to excessive efforts to obtain authorization by either travelling to another community or even to another province.

Past cases have held that Canadians who are seriously ill, and for whom medical marijuana provides relief, have the Charter right to use marijuana to treat their illness. It was for that reason that the medical marijuana legislation was created. In this most recent case however, the Court accepted that the legislation made it nearly impossible for patients who genuinely need the drug to obtain it and therefore, the current medical marijuana system was in breach of Canadian’s right to bodily integrity under Section 7 of the Charter.

The Court suspended its ruling for three months to give the federal government time to revisit the legislation and its effects. If the government does not put other legislation in place by July 11, 2011, pot will become legal to produce, use and possess in Canada (but not sell).

If marijuana becomes legal in Canada, what does this mean for employers? Well, first, don’t panic, because it’s unlikely that the Federal Government will roll-over to an Ontario lower Court decision. The decision’s implementation will likely be suspended while the appeal process works its way through to the Supreme Court of Canada. The most likely outcome is that the defects in the medical marijuana legislation will be corrected while the general criminalization of marijuana remains in place.

In the unlikely event possession and use of marijuana is decriminalized, employers will need to re-think their drug and alcohol policies and practices. It will be difficult to enforce a “zero tolerance” approach to marijuana use and employers may find that marijuana will become more popular than alcohol as the impairment drug of choice because it can be more difficult to detect than alcohol use or possession. Another significant concern is that unlike alcohol impairment, there is still no reliable science for detecting the extent of marijuana impairment. Employers may find more challenges with “duty to accommodate issues”, decreased employee productivity, and safety concerns (and the snacks that employees leave in the break room fridge might go missing that much faster).

Also, keep in mind that as with any major change, employers will have to suffer through the growing pains involved with the legislation and regulations playing catch-up. For instance, what will be the legal limit for personal consumption? How do you measure the amount of marijuana in an employee’s body to determine if they’re fit to work? When can an employee operate a motor vehicle safely? Is it even safe to have a high employee on duty? All of these questions will need to be addressed and it will likely fall to employers to come up with creative solutions and deal with the Human Rights-related issues, while the government (and science) slowly catches up.

Before employers start revising policies and calling their employment lawyers on the hotline for advice and creative problem solving solutions, they can pause, take a deep breath and watch for the following to occur:

1)      The federal government will enact stop-gap legislation:

We expect that there will either be a flurry of legislative re-drafting to re-vamp the medical marijuana legislation so that it does not offend Section 7 of the Charter, or the federal government will use Section 33 of the Charter (the “notwithstanding” clause) to “opt out” of the Judge’s ruling for 5 years. The “notwithstanding” clause however, is a hot button for interest groups and makes a government look autocratic, so while that’s an easy fix legislatively, it’s not an easy fix for a newly elected democratic government.

2)        The case will be appealed through to the Supreme Court of Canada:

While legislative changes are underway, the government will also likely proceed with the appeal process and go down the long, slow road to the Supreme Court of Canada. This is not a three month journey, so the government will likely apply to have the lower court decision suspended for the duration. Employees would be well advised to leave their bongs and other marijuana-related paraphernalia at home for the time being.

Whichever way this matter proceeds, one outcome is fairly certain: the government will be more careful with any medical marijuana legislation to make sure that whatever happens to that legislation, it doesn’t impact the general criminalization of marijuana.

Ryan McFarlane is an Associate lawyer with Ukrainetz Law (www.ulclaw.ca), a management side employment, labour and human rights law firm located in Vernon, B.C.

This article is intended for reference only and should not be construed as legal advice.