Cannaquestions: Dos and don’ts when it comes to in-house, legal cannabis cultivation in Canada

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When it comes to legally growing cannabis at home, the federal regulations could be a challenge to comprehend.

Experts answer three widely anticipated queries that homeowners and tenants could potentially face–queries that were also the point of discussion at Cannabis Living Expo that took place in Toronto last year–and how best to deal with them.

Q1. If a person has an Access to Cannabis for Medical Purposes Regulations (ACMPR) cultivation permit, can someone else from the same household legally grow four plants for recreational use?

A: The short answer is yes.

Ranjeev Dhillon, a partner and co-lead of the national Cannabis Law Group at the Toronto law firm of McCarthy Tetrault, explains that the Cannabis Act doesn’t prevent more than one person per household from legally growing cannabis. As such, it is legal for a total of up to four plants to be grown in a household as long as an adult is growing the plants over the age of 18. The four recreational-use plants would be over and above any legal medical grow limit specified in an ACMPR permit held by one or more people in the household.

It’s worth noting that while ACMPR growers are limited to a maximum of five indoor-grown (two outdoor-grown) plants per gram of their daily prescribed medical doses, as many as four ACMPR-registered growers in the household may grow their own plants. In this case, however, each grower must tend to and cultivate their respective plants separately from any other cannabis crops in the household.

On a cautionary note, Dhillon advises that it’s best to be aware as some provinces have set restrictions on how much cannabis a person can possess (even at home). For example, B.C. has a maximum allowable amount of 1,000 grams (one kilogram) of dried cannabis or the equivalent amount set out for other classes of cannabis (e.g. fresh, solids, etc.). Home cannabis cultivation is prohibited in both Que. and Manitoba.

Q2. When a landlord wants to inspect a tenant’s dwelling unit for a possible infringement of cannabis cultivation restrictions, how can he or she carry out the inspection without invading the tenant’s privacy?

A: The federal Cannabis Act does not specifically address the question of landlord inspections of tenant rental units. Rather, across Canada, the rights of tenants and the restrictions on landlord inspections fall under the existing provincial landlord and tenant legislation.

As a result, landlords do have the right–subject to certain conditions–to enter a tenant’s unit to inspect for a whole range of potential problems, especially anything that may raise the risk of fire, damage the unit or interfere with other tenants, says Caryma Sa’d, a Toronto-based lawyer specializing in cannabis law and landlord and tenant issues.

However, Sa’d says it remains to be seen exactly how, and to what extent, landlord inspections can be based on concerns revolving around a tenant’s cannabis cultivation practices or what legal recourse a landlord or tenant would have should a dispute arise. One example would be–such as when a landlord sees that a tenant is growing more than the four-plant per household limit.

As the rules and parameters around landlord inspections and tenant cannabis cultivation haven’t been clearly spelled out yet, Sa’d says it’s a key question that will eventually have to be dealt with by the courts.

The courts will also need to provide clarity on what actually constitutes a household for the purposes of enforcing the cultivation rules in the Cannabis Act. For example, when it comes to houses with multiple roommates, student dormitories and other shared living arrangements, the standard definition of a “household” may not apply or be very clear. “The courts will have to figure all this out, but when they do, I hope that the enforcement measures don’t roll out in such a way that infringes upon the sanctity of people’s homes. The notion of fairness will have to be front and centre in all these matters,” Sa’d emphasizes.

Q3. While conducting such inspections, is there any liability placed on the landlord if the tenant’s cannabis grow is disturbed?

A: If the landlord damages a tenant’s plants during an inspection, the tenant should have recourse through his or her provincial landlord and tenant board, says Matt Maurer, a partner and vice-chair of the Cannabis Law Group at Torkin Manes in Toronto.

A landlord has the responsibility not to cause any damage to a tenant’s property, but if he or she does so, the landlord should be expected to provide the tenant with some level of compensation. “In such cases,” Maurer says, “cannabis should be treated no differently than any other property. For instance, if your landlord is in your apartment and knocks over a lamp and breaks it, they’re responsible for paying to replace or repair it. The same thing goes with cannabis plants. Whether it’s intentional or not, if a landlord somehow damages your legally–grown cannabis plants, they may be forced to compensate for the damage caused to your private property,” he explains.

As for the level of compensation that could be paid, Maurer says, “the general rule is that you need to be put back in the position you would have been in if the wrongdoing didn’t occur. However, to put a number on the value of the damaged cannabis plant becomes a bit tricky, as there are so many variables involved, including potentially being compensated for the time that was lost in growing the plant to the size that it was.”

As with so many other questions arising over the application of Canada’s new cannabis laws, Maurer believes landlord liability in dealing with tenant cannabis cultivation is uncharted territory that the courts will have to sort out.

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