Joe Hoffer breaks down the legal side of legalized marijuana
October 19, 2018
Joe Hoffer
Audio Transcription
The Craig Needles Show on AM980
Transcript
| Interviewer: | I know that there are a lot of people that have asked questions about legalities and what will and won’t be allowed when it comes to cannabis being legal in this country. So to talk about some of the things that are most interesting from the legal perspective, Joe Hoffer who’s a partner at Cohen Highley, is joining me here in studio to discuss that this morning. Joe, thanks a lot for being here. Good morning. |
| Joe Hoffer: | You’re welcome. Good morning Craig. |
| Interviewer: | There’s a lot to talk about and a lot to go over here. We’ve talked a little bit about it off the air. Let’s start with the workplace portion of the conversation here. And when cannabis should and shouldn’t be used and can’t be used. Obviously you can’t smoke marijuana while you’re working but fit for duty seems to be the policy that some employers are going with. The RCMP said you can’t have smoked marijuana for 28 days leading up to a shift or whatever it happens to be. What’s your thought on how employers are going to have to navigate this cannabis legalization period. This adjustment period that we’re all going to be in. |
| Joe Hoffer: | Well there aren’t a lot of legal rules built around employment and I think for most employers the concern is risk management. So, if one of their employees is involved in an accident and the question comes up, “Did you consume cannabis? When was the last time you consumed cannabis?” If the answer is yes and it was even, you know in the case of the police within 28 days, that may give rise to claims by a plaintiff that, you know, cannabis was a factor in the accident and now the insurance companies are brought in and they’re into litigation. It’s great for lawyers but not so great for employers. So, a lot of employers have been enacting workplace policies that basically prohibit cannabis use in the workplace and even there have been some arbitration awards where cannabis was given or taken by prescription the night before the employees were required to operate heavy equipment and those arbitrations were resolved in favour of the employer. |
| Interviewer: | Oh, okay. So, that’s interesting to note that. And we were talking about it off the air. The science here is a little bit unsettled. For the most part, it appears though you should be okay if you’ve given yourself a few hours and your quote-unquote “fit for duty”. But on some levels here, the science is a bit unsettled as far as whether it can impair your judgement or whatever it happens to be. |
| Joe Hoffer: | That’s right and where there’s uncertainty, there’s legal risk and that’s where the policies come into play. |
| Interviewer: | Yeah. So, it’s interesting from an employer perspective. Let’s talk about the landlord’s perspective and someone who’s renting property to someone. Are they, is that person who’s renting property allowed to grow cannabis in there if it’s 4 plants for recreational purposes or if it’s more than that for medical purposes? Legally, obviously, 4 is the maximum for recreational but if you’re a landlord can you say “No, my tenants are not growing marijuana in here”? |
| Joe Hoffer: | Absolutely. And most professional landlords have introduced rules to prohibit any cannabis cultivation and anti-smoking rules. Complete prohibition, whether it’s cigarettes or cannabis in apartment units and that has played out fairly well among most renters and the same thing is happening in the condo context. So condo boards are passing rules and by-laws prohibiting cultivation of cannabis whether it’s four plants or even by prescription which I’ve seen grow-ops in apartment units of up to 49 plants. So, those things obviously are a real concern not just for the landlords but for other residents in the building and so these rules have been put into play. It’s all done as a matter of contract. Either under the lease or by statute under the Condominium Act. |
| Interviewer: | And it’s not just a smell thing or a mold thing to worry about but there’s also some safety issues if you have the plants being grown with lights and things along those lines. Hydro hookups. There’s definitely some safety risk in there as well. |
| Joe Hoffer: | There are when you get into the components that are installed. So really, sort of manage production of cannabis but, you know, I think the vast majority of people who are growing 1 to 4 plants, nobody is really going to care, in my experience. The plants will probably die or they won’t be very fertile or very potent and so that’s when people start to buy the fertilizers, the pesticides, start to erect the tents and the grow-ops that I’ve seen which are, you know, they are of some size. And there are a number of appliances hooked up to them to generate humidity, to generate light. The tents have been set up right in the middle of the, in one case, both in the living room floor and in the bedroom floor and all of the parkade flooring was lifted up. It was a real mess inside the unit and in one of the grow-ops, they had hooked the ventilation system up to the building’s ventilation system. There was mold all around that. It’s basically not good to have those things in apartment or multi-residential settings. |
| Interviewer: | I want to, you mentioned multi-residential settings, what about a condo that you own? Is that a different conversation? Does that depend on the condo board? How does that work? |
| Joe Hoffer: | Oh, it depends on the condo board. So if you own the unit, the board and really the corporation still has the power to enact by-laws and rules to absolutely prohibit cultivation in those units and cultivation, obviously, outdoors. |
| Interviewer: | Okay, yeah outdoors is obviously part of it as well. There’s a few more things I want to talk about with you Joe but we’re going to take a quick break and then talk about those on the other side, if that’s alright with you? |
| Joe Hoffer: | Sure. |
| Interviewer: | Alright, let’s do that. So, Joe Hoffer, partner at Cohen Highley is in talking about different legal things that might come up from a marijuana and cannabis perspective with us. If you have any questions, you can email me at craig@980cfpl.ca. We’ll talk about that coming up. You’re listening to Global News Radio. This is 980 CFPL. |
| We return to The Craig Needles Show. Joe Hoffer, who’s a partner at Cohen Highley is in studio with us talking about cannabis legalization. That is today, it is happening, it is real. The question is what portion of the legislation do people need to know about and we were just talking off the air about legislation and how there are some inconsistencies here. So, it’s going to be an adjustment period for Canadians but it’s going to be an adjustment period for government as well because it feels as though there are some loose ends that should be tied up here. | |
| Joe Hoffer: | Yes. |
| Interviewer: | Yes. So, what, give me some examples here as far as, there’s the growing aspect and the difference between medical and recreational. What are some examples as to what the differences are? |
| Joe Hoffer: | Well, one of the most stark examples of inconsistency is under the federal legislation. If you have a prescription for medical cannabis and a registration certificate, there’s a prohibition on growing or cultivating cannabis outdoors anywhere near a playground, school, anywhere where younger people are likely to be present. That’s a complete prohibition. With recreational cannabis, you can grow up to 4 plants anywhere outside. So, that’s just one example where, you know, the right hand of government is acting inconsistently with the left hand and there’s many more gaps in legislation between the federal government, the provincial government and municipal agencies. And a lot of those gaps, fortunately for lawyers, are being filled in by lawyers and through private agreements between, in the example we used earlier was landlords and tenants or condo boards. |
| Interviewer: | Do you think the government should have left themselves more run-up time or these things they should have been able to see coming? Because it’s been a few months that we’ve known that October 17th was the date. Should they have been a little more proactive here, do you think? |
| Joe Hoffer: | I think there should’ve been a, you know, some broader legislative work done. The focus seems to have been for governments on how to make money. So, we’ve got the retail cannabis store, the taxation protocols are in place but the basic health and safety issues really haven’t been addressed by government. |
| Interviewer: | Right. Well, I suppose it going to have to be a wait and see thing. Like I said, it’s going to have to be an adjustment period. And, really, I guess there’s no other way to see how it shakes down then just watching how it shakes down and watching what the case law winds up saying, right? |
| Joe Hoffer: | Absolutely. Those gaps will be filled in eventually and, you know, I don’t think there’s some earth shattering change that’s going to occur today. We’ll see lots of people celebrating. Certainly, the legal profession will be celebrating. |
| Interviewer: | [laughs] It’s a win for everybody, I guess. Or at the very least it’s a win for the folks in the legal profession. We’ll have to leave it there. Joe, thanks so much for making the trip down and coming and talking to us. I appreciate it. |
| Joe Hoffer: | Okay Craig. You’re welcome. Thank you. |
| Interviewer: | Thank you. That’s Joe Hoffer, who’s a partner at Cohen Highley. We’re taking a break here. We’re going to look at some polling data about marijuana and cannabis legalization on the other side of the break. How do Canadians feel about this? We’re going to be chatting with some folks with IPSOS just ahead so stick around, it’s Global News Radio, 980 CFPL. |
