Cannabis Statute Law Amendment Act, 2018, S.O. 2018, c. 12 - Bill 36

• Jurisdiction: Ontario
• Date: 17 October 2018
• Bill Number: 36

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 36 and does not form part of the law. Bill 36 has been enacted as Chapter 12 of the Statutes of Ontario, 2018.

The Bill amends various Acts and enacts one new Act in relation to the use and sale in Ontario of cannabis and of vapour products. Schedule 1 amends the Cannabis Act, 2017 and makes related amendments to other Acts. Schedule 2 enacts the Cannabis Licence Act, 2018 and makes related amendments to other Acts. Schedule 3 amends the Ontario Cannabis Retail Corporation Act, 2017 and the Liquor Control Act. Schedule 4 amends the Smoke-Free Ontario Act, 2017 and makes a consequential amendment to the Highway Traffic Act.

Schedule 1
Amendments to the Cannabis Act, 2017 and Other Acts

The Schedule makes amendments to the Cannabis Act, 2017, as well as a number of complementary amendments to other Acts.

Amendments made to the Cannabis Act, 2017 include the following:

1. Re-enacting the definition of “cannabis” to refer to the definition of cannabis in the Cannabis Act (Canada), and making other amendments to refer to federal law respecting cannabis (subsections 3 (2), (3) and (6), 6 (1) and (2) and 12 (2) of the Schedule).

2. Repealing section 11 of the Act, which provided for prohibitions on places where cannabis may be consumed, and making consequential amendments (sections 11 and 15 of the Schedule). Instead, prohibitions on places where cannabis may be consumed are added to the Smoke-Free Ontario Act, 2017 (Schedule 4 to the Bill).

3. Re-enacting subsection 12 (2) of the Act to make changes to the circumstances in which the restriction in subsection 12 (1) on the transportation of cannabis in vehicles or boats does not apply (subsection 12 (1) of the Schedule).

4. Adding to the list of circumstances in which premises may be closed under section 18 of the Act, and making consequential amendments to that section (subsections 13 (1), (3) and (4) of the Schedule).

5. Providing for circumstances in which the court may make inferences in the absence of evidence to the contrary, and providing for additional circumstances to be added by regulations made under the Act (section 17 and subsection 20 (3) of the Schedule).

Other amendments are made to the Cannabis Act, 2017 in order to reflect the Cannabis Licence Act, 2018 (Schedule 2 to the Bill). These include the addition of a new defined term of “authorized cannabis retailer” which, in addition to the Ontario Cannabis Retail Corporation, includes the holder of a retail store authorization under the Cannabis Licence Act, 2018, when acting in accordance with the authorization (subsection 3 (1) of the Schedule). A new prohibition on falsely representing oneself as an authorized cannabis retailer is added as section 8.1 of the Cannabis Act, 2017 (section 9 of the Schedule). Another new prohibition is added in subsection 9 (2) of the Act, prohibiting persons from purchasing cannabis online or by any means other than in person at a cannabis retail store, as defined in the Cannabis Licence Act, 2018, except from the Ontario Cannabis Retail Corporation (subsection 10 (2) of the Schedule). Finally, the short title of the Cannabis Act, 2017 is changed to the Cannabis Control Act, 2017 (section 1 of the Schedule).

Schedule 2
Cannabis LicenCE Act, 2018 and related amendments to other acts

The Schedule enacts the Cannabis Licence Act, 2018, which sets out a licensing scheme for private cannabis retail stores. The licensing scheme is administered by the Alcohol and Gaming Commission of Ontario (“Commission”) (subsection 50 (4)).

Definitions that apply to the Act are set out in section 1. The Act does not apply to the Ontario Cannabis Retail Corporation (section 2).

Sections 3 to 17 address licences and authorizations that may be issued under the Act. The Act provides for two types of licences — retail operator licence and cannabis retail manager licence — and a retail store authorization. A retail store authorization authorizes its holder to operate a particular cannabis retail store. A separate authorization is required with respect to each store (subsection 4 (5)). In order to apply for a retail store authorization, a person must be the holder of or an applicant for a retail operator licence, but a retail store authorization may only be issued to the holder of a retail operator licence (subsection 4 (1)). A cannabis retail manager licence is required in order to carry out specified functions in respect of a cannabis retail store (subsections 5 (1) and 25 (1)).

Section 3 addresses applications for a retail operator licence, section 4 addresses applications for a retail store authorization and section 5 addresses applications for a cannabis retail manager licence. Applications for licences and authorizations are made to the Registrar of the Commission, who determines whether licences and authorizations should be issued. In the case of an application for a retail store authorization in respect of a proposed cannabis retail store to be located in a municipality, the Registrar must consider, among other things, the public interest, having regard to the needs and wishes of the residents of the municipality, and, unless the authorization may not be issued otherwise, must provide public notice of the application and an opportunity to make written submissions (paragraph 5 of subsection 4 (6) and subsections 4 (7), (8), (9) and (10)). In the case of an application for a retail store authorization in respect of a proposed cannabis retail store to be located on a reserve, the authorization may not be issued unless the council of the band has approved the location of the proposed store on the reserve (paragraph 6 of subsection 4 (6)). Licences and authorizations issued under the Act are subject to specified conditions with which their holders must comply (sections 6 and 7). Licences and authorizations may be renewed if specified criteria are met (section 8). In determining whether to issue or renew a licence or authorization, the Registrar may exercise specified inquiry and investigation powers (sections 9 and 45). The Registrar is empowered, in specified circumstances, to revoke or suspend, or to issue a proposal to revoke or suspend, a licence or authorization (sections 11 and 12). Proposals issued by the Registrar may be the subject of a hearing before the Licence Appeal Tribunal (sections 14 and 15).

Sections 18 to 25 set out requirements for the sale of cannabis in cannabis retail stores and the operation of cannabis retail stores. Requirements include that only cannabis and any other things that may be specified by regulations made under the Act may be sold in a cannabis retail store, as well as that cannabis may only be sold through a cannabis retail store in person at the store. In most cases, a contravention of or failure to comply with the requirements is an offence under the Act, although a proceeding cannot be commenced more than two years after the day on which any such offence was or is alleged to have been committed (section 39). Offence penalties are set out in section 40. Sections 27 to 35 provide for the designation of inspectors to conduct inspections to ensure compliance with the Act and its regulations and the appointment of investigators to investigate possible failures to comply; the sections also set out inspection and investigation powers and procedures.

Sections 36 to 38 set out general prohibitions respecting the licensing scheme, including prohibitions against hindering inspectors or investigators (section 37) and against retaliating against a person because of any disclosure to the Registrar or to an inspector or investigator (section 38). Contravention of the prohibitions is an offence (section 39).

Sections 41 and 42 address additional municipal matters. Under section 41, a municipality (defined in the Act as a “local municipality”), may pass a resolution by January 22, 2019 prohibiting cannabis retail stores from being located in the municipality. Such a prohibition may be lifted by a later resolution passed by the municipality, but a municipality’s decision to do so is final and may not be further reversed. Persons are not permitted to apply for a retail store authorization in respect of a proposed cannabis retail store that would be located in a municipality that is the subject of a resolution to prohibit stores (subsection 4 (2)). Section 42 constrains specified municipality by-law making authorities from addressing matters relating to the sale of cannabis.

Sections 43 and 44 address additional matters respecting reserves. Under section 43, a council of the band may in relation to a reserve request that the Registrar not issue retail store authorizations for cannabis retail stores to be located on the reserve. The Registrar must comply with such a request, as well as with any future request to amend or rescind the original request. Persons are not permitted to apply for a retail store authorization in respect of a proposed cannabis retail store that would be located on a reserve for which a request not to issue authorizations is in effect (subsection 4 (2)). Section 44 authorizes arrangements or agreements between the Crown and a council of the band with respect to the regulation of cannabis retail stores on a reserve, the licensing or authorization of persons to operate the stores or the enforcement of the licensing scheme on a reserve.

Sections 45 to 49 address various miscellaneous matters: section 45 provides for the requesting of information from the Ontario Cannabis Retail Corporation for specified purposes; section 46 permits the Commission to employ 18-year-olds for the purposes of monitoring compliance with the licensing scheme; sections 47 and 48 protect specified persons from requirements to give testimony and against actions or other proceedings for damages respectively; and section 49 sets out the regulation-making authority...