The federal government's proposed Cannabis Act, if passed, will legalize and regulate the production, sale and possession of recreational marijuana across Canada by July 2018. However, each of the provinces have decisions to make about how cannabis will be used, sold and regulated in their province. Until July 31, 2017, Ontarians can share feedback through a survey asking how the government should approach legalizing marijuana in Ontario.

The survey asks for input in five areas: (1) the minimum age someone can use, keep and buy cannabis, (2) where cannabis can be used, (3) road safety, (4) regulating sales of cannabis, and (5) planning public education.

One important question is where cannabis can be used: where will individuals be allowed to smoke marijuana and who gets to decide that? As marijuana is legalized by the federal government, it will be up to the Province to regulate how it can be used in some spheres. For instance, the Province could restrict the ability of landlords and condominium boards to prohibit vaping and/or smoking within units. Provincial regulations could also determine whether condo boards will be able to restrict vaping and smoking marijuana recreationally in common spaces like rooftops and courtyards.

When it comes to vaping and smoking of recreational marijuana in individual units or common spaces in condo buildings, a regime that allows landlords and property managers to set their own rules and practices has important implications. Like with tobacco, landlords and condominiums may be inclined to ban residential use of recreational marijuana on account of health and safety risks and to head off complaints from residents.

A related issue is whether the Province will prohibit vaping and smoking in the public sphere -- and the mechanisms used to enforce such prohibition.

In Colorado, which legalized marijuana in 2014, public smoking remained prohibited. Parks and businesses such as hotels became go-to places for recreational use for those who could not smoke in their unit, resulting in an enormous 471 per cent increase in public consumption tickets (the mechanism used to enforce the prohibition). Though there do not yet seem to be comprehensive stats on exactly who was most affected by the ticketing, it is unlikely that single‑dwelling homeowners were affected and there are some indications that Black people have been disproportionately targeted.

Assuming Ontario follows a similar path allowing landlords and condominiums to set bans on smoking recreational marijuana while also banning public consumption, we can expect the same trials and tribulations experienced in Colarado. This solution would effectively re‑criminalize the public consumption of recreational marijuana, affecting most severely those who are unable to afford single-dwelling homes. It also creates the potential for abuses by landlords or condominiums who may discriminate against tenants or owners they dislike or towards whom they feel prejudice. This approach favours wealthy homeowners, while low‑income residents will lose out.

At this stage, the Province seems to still be grappling with whether to ban smoking and vaping in public and is seeking feedback from the public at large.

One of the solutions on the table is to designate certain private spaces for recreational marijuana smoking, such as cannabis lounges. After its challenges with ticketing a growing number of pot smokers in parks and on the street, Denver passed a resolution in November 2016 to allow select businesses like cafes and yoga studios to have designated smoking areas for recreational marijuana and, this summer, the city opened its first private cannabis clubs. Canada's Task Force on Cannabis Legalization and Regulation has recommended that the federal government de‑criminalize dedicated places like cannabis lounges and tasting rooms for consuming recreational marijuana. However, this seems to be an inadequate solution, particularly if access to these areas is at the whim of private sector businesses which can set membership fees and limit entry to their spaces.

It is time we consider these questions in the context of fair access to recreational marijuana use in private and public spaces. Ontario has the opportunity to avoid the mistakes made south of the border, and establish a comprehensive regime for the enjoyment of recreational marijuana that is accessible to recreational marijuana users regardless of class and race. To do so, the Province needs to think twice about granting landlords and condominiums the right to ban smoking by tenants and owners and ensure that designated smoking areas are both available to and can actually be used by the public when legalization takes effect next summer.

Elliot Fonarev is an articling student at Iler Campbell LLP, a law firm serving co-ops, not-for-profits, charities and socially minded small business and individuals in Ontario. He lives in Toronto.

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