02/15/2018 13:42 EST | Updated 02/16/2018 15:35 EST

There's Much In The Air Regarding Marijuana Legalization In B.C.

We now have more clarity around how the use, regulation and sale of the drug will look, but there's still a lot hanging in the balance.

Last week, the government of British Columbia made an official announcement in relation to the use of recreational marijuana in our province.

We now have more clarity around how the use, regulation and sale of the drug will look, but there's still a lot hanging in the balance.

Tenancy issues

One of the most overlooked aspects of these new laws has to do with residential tenancy. The federal government will allow citizens to legally grow cannabis in their homes, albeit subject to certain restrictions.

In B.C., adults will be allowed to grow up to four cannabis plants per household.

However, if you plan on using natural light to help cultivate your crop, you might need to think again. The provincial government has mandated that marijuana plants must not be visible from public spaces off the property.

The annual 4/20 event at Sunset Beach in Vancouver on April 20, 2017.

Renters and homeowners in shared spaces, such as condos, may also be subject to more restrictions than others. The government has said that landlords and strata councils will be able to restrict, and even prohibit, home cultivation, and smoking indoors and on shared property.

The cultivation of marijuana plants often involves the use of high wattage bulbs as well as humid growing conditions. This can cause insurance issues for landlords, strata councils and even neighbours.

Moreover, it's an uncomfortable reality that the odour associated with smoking marijuana, much like cigarette odour, can bother some people.

For these reasons, both of these activities may pose a challenge to your neighbour's right to quiet use and enjoyment of their property.

Will landlords be able to force tenants to sign new agreements, prohibiting the cultivation of marijuana on their property?

Under current laws, landlords cannot discriminate against potential renters on enunciated grounds. They can, however, be selective. They can also prohibit tenants from engaging in certain activities in their units, such as smoking and owning pets. The same can be said about strata councils, to a lesser extent.

It's important to know that these types of restrictive clauses need to be signed at the time the tenancy agreement is made. This ensures both parties know what they're getting into, and sets a standard of conduct for the future. A landlord cannot enter into a "no smoking" clause six months into a tenancy, for example, without the express consent of the tenant. This means that a tenancy agreement usually cannot be altered after it is it made, unless both parties agree.

The big question here will involve what happens to existing tenancy agreements once marijuana becomes legal. Will landlords be able to force tenants to sign new agreements, prohibiting the cultivation of marijuana on their property? Or will they be out of luck?

The government has yet to weigh in.

Drug-impaired driving

Perhaps the single biggest concern expressed by government, both provincial and federal, since these laws have been drafted, has to do with drug-impaired driving.

The government seems to believe that once marijuana becomes legally available, there will be an inordinate amount of drug-impaired drivers on our roads. Statistics from states like Colorado and Washington do not entirely support this position.

In any event, the presence of impaired drivers on our public roadways is undesirable, to say the least. But the government's answer to curbing this perceived danger is problematic.

Once marijuana is legal, our provincial government plans on doing two things: creating a 90-day immediate roadside prohibition (IRP) scheme in relation to drug-impaired drivers; implementing a zero-tolerance policy for the presence of THC in new drivers enrolled in the graduated licensing program.

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These two proposals will mirror current driving laws in relation to alcohol consumption, and while this sounds like a great idea at first, it has one big problem: accurately testing for marijuana impairment on the roadside.

At this point, technology used for detecting marijuana impairment is shaky at best. While police officers can employ a saliva test to detect the presence of THC in a driver, that's really all they can do. The information generated from these types of tests tell us very little, if anything, about whether or not that driver is actually affected by the drug.

A test for marijuana impairment simply does not exist in the same way it does for alcohol impairment.

This is because THC is not processed by the human body in the same way as alcohol. While alcohol is water-soluble, THC is fat-soluble. This means the chemical can remain in the human body for an extended period of time, and long after the user has stopped feeling its effects.

While we have no idea how the 90-day IRP drug scheme will look right now, it's safe to say the implementation of any punitive scheme for drivers, based on drug-impaired driving, poses serious concerns for our Charter rights so long as there is no accurate and reliable means to determine impairment.

Public use

The government wants to limit where you can smoke marijuana once it becomes legal. While it maintains that people will generally be allowed to smoke in public spaces, it believes some places are more appropriate than others.

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Marijuana smokers will not be allowed to light up in places reasonably expected to be frequented by children, including beaches, parks and playgrounds. It will also be illegal to smoke marijuana in a motor vehicle, even if you are a passenger.

While this may sound somewhat restrictive, we should count our blessings in this regard: a number of other provinces have already announced their intention to prohibit the public smoking or marijuana, full stop.

So, once marijuana becomes legal, make sure to keep it out of your case and only smoke in acceptable venues, like permissible public locations or your home, so long as your landlord gives you the greenlight.

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