June 2018 Sections Update

  • June 01, 2018

Note: These meetings in review had taken place before the recently introduced BC Cannabis Control and Licensing Act (Bill 30), Cannabis Distribution Act (Bill 31), and Motor Vehicle Amendment Act, 2018 (Bill 17). Please refer to these Acts for legal reference.

Aboriginal Law – Vancouver and Municipal Law

Meeting in Review: April 11, 2018
Speakers: Paul Seaman, Gowling WLG; Sara Dubinsky, Lidstone & Company
and Iain Dixon, City of Vancouver
Topic: Cannabis Regulation for Local and Indigenous Governments

The Aboriginal Law – Vancouver and Municipal Law Section led an intriguing discussion on April 11, 2018 with Paul Seaman, Gowling WLG, Sara Dubinsky, Lidstone & Company, and Iain Dixon, City of Vancouver, to discuss cannabis regulation for local and Indigenous governments. Guests heard about considerations for lawyers working for First Nations and municipalities when advising on local business licensing, land use regulation and commercial opportunities ahead of the proposed legalization.

Paul specifically spoke to the source of First Nations jurisdiction potential and areas of possible conflict. He also gave an overview of federal/provincial division of powers and powers of First Nation’s governments, and the statutory source for potential First Nation jurisdiction (Indian Act, First Nations Land Management Act), Constitution s.35, and the duty to accommodate. Sara spoke to the division of powers between federal/provincial/local jurisdictions. In discussing who has authority over what, she identified the federal government’s authority to regulate production (potency, packaging, ingredients and advertising), and determine the minimum age, possession limits and criminal offences. Provincial governments are to supplement federal regulations, possibly by increasing the minimum age, lower possession/production maximums, and regulating consumption locations. The province is also responsible for regulation and license distribution. In discussing the role of local governments, Sara identified the significant control they will have, as retailers will be required to have local government resolution in support after mandatory a public consultation process. In addition to this influence, local governments may regulate the location, distance from other outlets or uses, and number of retail stores, as the province will not regulate permissible locations or number of stores. Iain’s presentation centred on the City of Vancouver’s attempts to regulate prior to legalization, speaking about regulations brought forth in 2016, which dealt with the mass proliferation of dispensaries. Although the City of Vancouver does not have jurisdiction over production/sale, it does have authority over businesses and land use, which it has used to create a new use under the City’s Zoning and Development Bylaw and a new business license category under the License Bylaw.

Members of the CBA can access the materials for this meeting by clicking here.

Constitutional Law/Civil Liberties 

Meeting in Review: April 4, 2018
Speakers: John Conroy, QC, Conroy & Company
Topic: From R. v. Malmo-Levine to the Cannabis Act: Where Marijuana Laws Have Been and Where They’re Going

John Conroy, QC, Conroy & Company, joined us on April 4, 2018 during a Constitutional Law/Civil Liberties Section meeting where he led a conversation about the history of constitutional litigation relating to cannabis (marijuana) from R. v. Malmo-Levine up to the present day with the introduction of the Cannabis Act

In March 1961, Canada became a signatory to the Single Convention on Narcotic Control, a United Nations treaty or convention replacing nine earlier treaties and cannabis was listed among the drugs along with heroin. The 1961 Narcotic Control Act replaced the Opium and Narcotic Drug Act. This Act removed the mandatory minimum sentence of six months imprisonment for simple possession, but raised the maximum of two years imprisonment to seven years imprisonment. In 1945, there were 212 drug convictions in Canada, 89% for possession but none for cannabis. In 1956, there was one case of marijuana  possession, but by 1972, the number reached a staggering 10,695. By 1977, it was 50,168. Commencing in 1995 and 1996, the cases of R v Caine (BCPC) and R v Malmo Levine (BCSC) started winding their way up through the courts in British Columbia and were heard together in the BC Court of Appeal and then joined with R v Clay, from Ontario, in the Supreme Court of Canada, as a trilogy challenging the constitutionality generally of the prohibition against the possession, production and distribution cannabis. The court held that the control of a psychoactive drug that causes alteration in mental function raises issues of public health and safety for the user and broader society affected by his or her conduct and was therefore the proper subject matter of the exercise of the criminal law power.

Members of the CBA can access this webinar recording for the complete history lecture by clicking here.

Employment Law 

Meeting in Review: May 12, 2017
Speakers: Robyn Durling, BC Human Rights Clinic and
Carolyn MacEachern, Young Anderson
Topic: Legalization of Marijuana – Considerations In The Workplace

With new federal and provincial legislation slated to overhaul the regulation and legalization of cannabis in Canada, there is much discussion about the workplace environment. With that in mind, on May 12, 2017, the Employment Law Section welcomed Robyn Durling from the BC Human Rights Clinic and Carolyn MacEachern from Young Anderson, who discussed the legal implications associated with this new overhaul and what it means in the context of employment and human rights law. Robyn Durling focused on whether medical cannabis (marijuana) should be treated as an intoxicant like alcohol or should it be treated like any other prescribed medication/pharmaceutical. He also explored what the courts have done in terms of balancing the rights of the employer with those of the medical cannabis user. From the employer’s perspective, Carolyn MacEachern discussed labour arbitrations and human rights tribunal decisions regarding the use of cannabis in the workplace, in particular, the impact on drug and alcohol policies and the duty to accommodate.

Members of the CBA can access this webinar recording by clicking here.

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