This article was first published on rabble.ca

With the arrival of legal cannabis last week, Canadians are now free to consume and — in some provinces — cultivate cannabis at home. This new freedom has come with many questions around the extent to which governments and property owners can restrict consumption. Does cannabis legalization mean that people have a protected right to smoke and grow cannabis? What about rules that seek to limit this freedom?

These questions cropped up in human rights cases across the country once medical cannabis became legal. With the legalization of cannabis, it is worth looking at how restrictions on recreational cannabis interact with the obligations of service providers such as landlords to accommodate medical cannabis users.

At Iler Campbell we represent many housing providers, and lately there has been an uptick in demand to implement cannabis use and growing rules. At the same time, landlords are receiving requests from tenants wanting to use and grow medical cannabis at home. It is important for landlords to be aware of the ways they can restrict cannabis use and consumption on their properties while also understanding their obligations under provincial human rights laws. In this context, the distinction between recreational and medical cannabis is key because provincial human rights legislation protects medical cannabis consumption, while not protecting recreational cannabis.

The freedom to use and grow recreational cannabis is restricted by provincial laws that set out the age of legal consumption, the amount people can legally possess, whether people can grow at home, and where cannabis can be smoked.

In Ontario, the Cannabis Act allows people over 19 to possess up to 30 grams of cannabis and grow up to four plants per residence. The Smoke‑Free Ontario Act restricts cannabis smoking to wherever tobacco smoking is allowed, and this can be further limited by municipalities or property owners. Landlords can also add terms to new lease agreements prohibiting cannabis use in rental units. However, landlords generally cannot change the terms of existing leases.

Medical vs. recreational cannabis laws

Medical cannabis in Canada is regulated separately from recreational cannabis. The federal government continues to control medical cannabis through the Access to Cannabis for Medical Purposes Regulation (ACMPR), which came into effect in mid‑2016, replacing the Marihuana for Medical Purposes Regulations (MMPR).

Under the ACMPR, people who are prescribed cannabis by their doctor can purchase from licensed producers, register to produce their own limited supply, or designate a third party to grow for them. Production licenses from Health Canada allow patients to cultivate more than the recreational limit of four plants. For example, according to Health Canada’s calculator for medical cannabis production, a patient who is prescribed five grams of cannabis per day can grow up to 25 indoor plants. However, the ACMPR doesn’t set out different rules for where medical cannabis can be consumed — permission to smoke is determined by provincial, territorial, municipal governments, and property owners.

This raises some interesting questions for housing providers: do landlords have a duty to accommodate tenants who want to smoke medical cannabis despite a lease agreement that prohibits smoking? If a renter has a license from Health Canada to grow medical cannabis, do landlords have to allow them to grow cannabis in their units?

Human rights protections

We have to look to human rights law to answer these questions. Each province’s human rights legislation addresses the responsibility of landlords (as service providers) to accommodate tenants with disabilities. A prescription to use cannabis to treat a medical condition can trigger a landlord’s duty to accommodate and obligate a landlord to exempt a tenant from a lease clause that bans cannabis consumption.

The exact changes a landlord must make to their rules will depend on each tenant’s disability‑related needs and the medical documentation they provide. A prescription for medical cannabis does not automatically mean a person can smoke anywhere, nor does it mean they have a right to smoke in their rental unit if they signed a lease with a no‑smoking clause.

The Ontario Human Rights tribunal (HRTO) has found that a person can have a disability‑related need to smoke cannabis depending on their medical needs. In one case, the HRTO determined an applicant had a need to smoke cannabis where the person experienced severe pain from his scoliosis and he provided medical evidence that smoking caused a more rapid onset of symptom relief while giving a more precise means of controlling symptoms than other forms of ingestion. We can draw parallels with that case and accommodations in the housing context. If a tenant can provide medical documentation that shows they need to smoke cannabis, a landlord may be required to accommodate the tenant by allowing them to smoke on a unit balcony or terrace. However, if a tenant wants to smoke inside their unit despite a smoke‑free policy, they would likely need to demonstrate that their disability (for example, limited mobility) prohibits them from being able to consume their medicine outside.

Right to grow medical cannabis

Whether a tenant can have a disability‑related right to grow medical cannabis in a rental unit is still an unanswered question. Home cultivation is a concern for many landlords as the optimal conditions for cannabis growth include warm temperatures, extensive lighting and high humidity, thus creating the potential for property damage or fire risks.

Growing cannabis at home is generally less expensive than purchasing it from Health Canada’s licensed producers. As a result, some patients who are prescribed medical cannabis are turning to home cultivation as an alternative.

If a tenant prescribed medical cannabis requests an accommodation to grow medical cannabis at home, they would need to demonstrate that they have a right to affordable access to medication. It may be difficult to make this argument in some provinces, because financial circumstances are not protected by most provincial human rights legislation. For example, the HRTO recognized in one case that protection under the Ontario Human Rights Code doesn’t extend to economic circumstances. This means that treating a person differently for financial reasons isn’t considered discriminatory in Ontario.

However, it is possible that the argument for a right to grow medical cannabis because of financial constraints may have some traction in provinces and territories where human rights law extends to social and economic disadvantage.

We haven’t yet seen Canadian courts or tribunals consider whether there is a right to grow medical cannabis, but it is likely to come up in the future.

The right to consume medical cannabis is protected by provincial human rights legislation, but this may not be the case for cannabis growth. Despite rules limiting cannabis use, landlords may have to make exceptions to accommodate tenants who can demonstrate that they have a disability‑related need for medical cannabis. The same protections that exist for medical cannabis users don’t extend to recreational cannabis, and it’s likely the law will stay that way.

Filed in: Housing, Human Rights

Tags: Cannabis, Duty to accommodate, Medical Cannabis