By: Patrick Hergott, Co-op Law Student
Do I have the right to smoke cannabis in my home?
This is a question that many British Columbians might find themselves asking given that cannabis is now legal to purchase and use in Canada. The short answer is that there is no free-standing right to smoke cannabis in British Columbia, even when one is in their home. The long answer is “it depends.” Smoking cannabis may be protected by the BC Human Rights Code but it needs to be connected to a protected characteristic (e.g. disability) and could require documentation.
Human Rights in BC
The BC Human Rights Code (the “Code”) is quite narrow and only protects certain personal characteristics in a limited number of areas. Areas covered by the Code include tenancy and services available to the public, and the protected characteristics include such things as age and mental or physical disability.
To prove discrimination under the Code, complainants must show that they have (or are perceived to have) a protected characteristic, that they have suffered an adverse effect, and that their protected characteristic was a factor in this adverse effect. The protected characteristic need not be the only factor or even the most important factor, so long as it was a factor in the adverse effect then discrimination can be found. The BC Human Rights Clinic has a helpful guide for understanding this analysis.
There is also what is called the Duty to Accommodate. The Duty to Accommodate is a duty to (reasonably) accommodate persons with one or more characteristics protected by the Code. For example, if an apartment building has no wheelchair ramp, it will likely need to build a ramp to accommodate residents in wheelchairs. The scope of this duty stops at the point of “undue hardship.”
Undue hardship doesn’t have a clear legal definition, but has been interpreted as meaning what is no longer reasonable or practical. For example, if a multi-floor apartment building doesn’t have an elevator, it might need to install an elevator to accommodate residents in wheelchairs who live on upper floors. The respondents could argue that installing an elevator constitutes undue hardship, however. In determining whether an elevator is a reasonable accommodation, the Tribunal would conduct a contextual analysis. Things to be considered might include whether the building’s structure allows an elevator, the cost of installing the elevator, and whether the complainant could be better accommodated in a different way, such as installing a wheelchair lift or moving them to a first-floor room instead.
The Duty to Accommodate is evaluated on a case-by-case basis, and appropriate accommodations depend on the specific facts of a situation. As a general rule, though,
respondents must show that they took all reasonable and practical steps to avoid the negative effect on the complainant to satisfy the Duty to Accommodate. Complainants must also co-operate with attempts to accommodate them so long as these attempts are reasonable, since accommodations must be reasonable, not perfect.
Background
Cannabis was decriminalized throughout Canada in 2018. Sales of Cannabis are now regulated and most smoking bylaws/regulations have been updated to include cannabis along with tobacco. Cannabis smoke can aggravate the respiratory systems of persons who are particularly sensitive or vulnerable to airborne contaminants, though it is not yet known what long-term impacts it might have. Cannabis is also prescribed as medication to manage symptoms of various illnesses, most often as a form of pain management. It is important, then, to find a balance between the rights of persons who use cannabis as medication while also protecting the rights of others.
Precedent from decisions dealing with tobacco smoke is of limited value for two reasons. Firstly, cannabis can be smoked as a form of medication whereas tobacco is smoked recreationally. Secondly, cannabis smoke can have an intoxicating effect. Nearby persons who are exposed to second-hand cannabis smoke might be affected in ways that they wouldn’t be by tobacco smoke. This was discussed in a 2011 decision from the Ontario Human Rights Tribunal, where it was determined that restaurants could bar the smoking of medical cannabis on patios because of the effects second-hand smoke might have on bystanders.
The BC Human Rights Tribunal has not issued a final decision specific to the smoking of cannabis, though there are some complaints currently working through the Tribunal. One such complaint is Edwards obo Edwards v. 1104719 BC and another, 2019 BCHRT 156, which deals with a ‘no-smoking’ Strata policy among other things. The Tribunal refused to dismiss the complaint, in part because barring the tenant from smoking medically prescribed cannabis had the possibility to constitute discrimination.
The Tribunal has decided a number of cases involving tobacco smoke, usually in the context of Strata managed apartment buildings. In McDaniel v Strata Plan LMS 1657, 2012 BCHRT 167 the Tribunal determined that a Strata’s failure to effectively address second-hand smoke was discrimination and ordered the Strata to pay the complainant $6500 in compensation for injury to their dignity, feelings and self-respect.
Rental vs. Non-rental situations
The smoking of cannabis in one’s home is subject to different rules depending on the nature of the occupancy. All residencies are subject to various rules/regulations, which can include things like municipal bylaws (no outdoor smoking within 7m of doors, open windows or bus-stops in Victoria) and strata bylaws (no smoking within the building or shared outdoor spaces). If homeowners reside in a unit in a building managed by a Strata, they can file a complaint against the Strata as a “service-provider” with the BC Human Rights Tribunal, but they cannot file under the “tenancy” protections.
EXAMPLE: A Strata has a bylaw barring residents from smoking in their units. One unit-owning resident suffers from chronic pain and has a prescription for medical cannabis to help them manage their pain. If the Strata refuses to allow the resident to smoke cannabis, the resident can file a complaint against the Strata as a service-provider on the grounds that they are being discriminated against because of their disability.
In rental situations, the terms of the tenancy agreement apply in addition to municipal and strata bylaws. Tenancy Agreements vary, but often include specific restrictions on smoking cannabis in rental units. These restrictions are legally binding but cannot override protected human rights. This means that if tenants can show that the terms of a tenancy agreement infringe on their protected human rights, these terms can be nullified.
EXAMPLE: A tenant signs a tenancy agreement that bars them from smoking in their unit. After moving in, the tenant is diagnosed with fibromyalgia and is prescribed cannabis to help manage their pain. Since the tenant has a disability and the term of the lease agreement would produce an adverse effect in a protected area (tenancy), the landlord owes the tenant a Duty to Accommodate them to the point of undue hardship.
Summary
In some cases, the smoking of Cannabis in one’s home could be protected by the BC Human Rights Code. However, it would need to be connected to a protected characteristic, and this connection would need to be documented by some sort of evidence like a doctor’s note. The smoking of cannabis might also be inappropriate in certain living conditions where neighbours would be affected, though this would need to be evaluated on a case-by-case basis. Moving forward, it will be helpful to see how the BC Human Rights Tribunal decides complaints involving the smoking of cannabis in private residences, as this will clarify the situation.
Disclaimer
The VIHRC blog is for informational purposes only and is not intended to be legal advice.