Smoke-Free Ontario Act, 2017 and Regulation

Bill 174, An Act to enact the Cannabis Act, 2017, the Ontario Cannabis Retail Corporation Act, 2017 and the Smoke-Free Ontario Act, 2017, to repeal two Acts and to make amendments to the Highway Traffic Act respecting alcohol, drugs and other matters was introduced on November 1st, 2017, and received Royal Assent in a nimble 42 days, on  December 12th, 2017. The new SFOA will come into force on a date set by proclamation.

The new SFOA is an amalgamation of the old SFOA and the Electronic Cigarettes Act that was only ever partially proclaimed. Details of the new Smoke-Free Ontario Act, 2017 include:

• Subject to any exemptions that may be provided for in the regulations (see proposed regulations below), no person shall do any of the following in a place mentioned in subsection (2):
  • Smoke or hold lighted tobacco;
  • Smoke or hold lighted medical cannabis;
  • Use an electronic cigarette;
  • Consume a prescribed product or substance, in a prescribed manner.
• The following are the places for the purposes of subsection (1):
  1. An enclosed public place.
  2. An enclosed workplace.
  3. A school within the meaning of the Education Act.
  4. A building or the grounds surrounding the building of a private school within the meaning of the Education Act, where the private school is the only occupant of the premises, or the grounds annexed to a private school, where the private school is not the only occupant of the premises.
  5. Any indoor common area in a condominium, apartment building or university or college residence, including, without being limited to, elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.
  6. A child care centre within the meaning of the Child Care and Early Years Act, 2014.
  7. A place where home child care is provided within the meaning of the Child Care and Early Years Act, 2014, whether or not children are present.
  8. A place where an early years program or service is provided within the meaning of the Child Care and Early Years Act, 2014.
  9. The reserved seating area of a sports arena or entertainment venue.
  10. A prescribed place or area, or a place or area that belongs to a prescribed class.
• Exemptions include:
  • Smoking or holding lighted tobacco, smoking or holding lighted medical cannabis or using medical cannabis through an electronic cigarette in a designated smoking/e-cigarette room in a long-term care facility, a retirement home that provides care, and other types of supportive housing residences;
  • Smoking or holding lighted tobacco, smoking or holding lighted medical cannabis or using medical cannabis through an electronic cigarette in a designated smoking/e-cigarette room in a hotel, motel or inn;
  • Smoking or holding lighted medical cannabis or using medical cannabis through an electronic cigarette in a designated smoking/e-cigarette room in a hospice.
• Every home health-care worker has a right to request a person not to smoke or hold lighted tobacco, smoke or hold lighted medical cannabis, use an e-cigarette or consume a prescribed product or substance, in their presence while they are providing health care services.
• Subject to the regulations, no person shall do any of the following in a motor vehicle:
  • Smoke tobacco or have lighted tobacco while another person who is less than 16 years old is present in the vehicle.
  • Use an electronic cigarette or have an activated electronic cigarette while another person who is less than 16 years old is present in the vehicle.
  • Smoke medical cannabis, have lighted medical cannabis, use an electronic cigarette containing medical cannabis or have an activated electronic cigarette containing medical cannabis.
  • Consume a prescribed product or substance, in a prescribed manner, or have a prescribed product or substance.

The proposed regulation, if approved, would prohibit the smoking of tobacco, the use of e-cigarettes (including e-cigarettes containing medical cannabis) and the smoking of medical cannabis in the following additional places:

• Restaurant and bar patios (except for uncovered patios established by a veterans’ organization prior to 18 November 2013, provided that the patio is not used to vape recreational cannabis);
• Sheltered areas with a roof and more than two walls to which the public is invited or employees frequent;
• Children’s playgrounds and public areas within 20 metres of playgrounds;
• Sporting areas owned by the Province, a municipality or post-secondary campus (excluding golf courses), adjacent spectator areas, and public areas within 20 metres of these places;
• Nine metres from any entrance or exit of a public hospital, private hospital, psychiatric facility, long-term care home, and independent health facility;
• Outdoor grounds of public hospitals, private hospitals and psychiatric facilities;
• Outdoor grounds of certain Ontario government office buildings;
• Public areas within 20 metres from the perimeter of the grounds of a school or a youth and/or children’s recreation centre during the designated hours that children and youth are allowed to use the facility; and
• Nine metres from a restaurant or bar patio.

The regulation also proposes to expand the exemptions to include all e-cigarette use in designated guest rooms of hotels, motels and inns, and in controlled rooms of residential care facilities, designated veterans’ facilities and designated psychiatric facilities.  Finally, the regulation also proposes to permit the testing of e-cigarettes at specialty vape shops, provided that no vapour is inhaled or exhaled from the product.

Bill 174 also created the Cannabis Act, 2017. Highlights include:

• No person under 19 years of age shall possess, consume, attempt to purchase, purchase or distribute cannabis;
• No person shall consume cannabis in a public place, a workplace, a vehicle or boat, or any prescribed place;
• A medical cannabis user may consume cannabis for medical purposes in a place referred to in subsection (1), subject to any prohibitions or restrictions set out in the regulations or under the Smoke-Free Ontario Act, 2017;
• Subject to requirements, and to the approval of the Lieutenant Governor in Council, the Minister may, on behalf of the Crown, enter into arrangements with a council of the band with respect to the sale, distribution, purchase, possession, consumption, cultivation, propagation or harvesting of cannabis on a reserve.

Products Included

Cannabis, Cigarettes, Cigars, Pipes, Electronic Smoking Devices, Other Weeds and Substances

Definitions

Cannabis Act, 2017

“Cannabis” means a cannabis plant and anything referred to in subsection (2), but does not include anything referred to in subsection (3);

(2) The following are included in the definition of “cannabis” in subsection (1), subject to the regulations:
1. Any part of a cannabis plant, including the phytocannabinoids produced by, or found in, such a plant, regardless of whether that part has been processed or not, other than a part of the plant referred to in subsection (3).
2. Any substance or mixture of substances that contains or has on it any part of such a plant.
3. Any substance that is identical to any phytocannabinoid produced by, or found in, such a plant, regardless of how the substance was obtained.

(3) The following are not included in the definition of “cannabis” in subsection (1), subject to the regulations:
1. A non-viable seed of a cannabis plant.
2. A mature stalk, without any leaf, flower, seed or branch, of such a plant.
3. Fibre derived from a stalk referred to in paragraph 2.
4. The root or any part of the root of such a plant.

“Medical cannabis user” means a person who is authorized to possess cannabis for the person’s own medical purposes in accordance with applicable federal law;

“Public place” includes any place to which the public has access as of right or by invitation, whether express or implied, and whether or not a fee is charged.

Smoke-Free Ontario Act, 2017

“Electronic cigarette” means a vaporizer or inhalant-type device, whether called an electronic cigarette or any other name, that contains a power source and heating element designed to heat a substance and produce a vapour intended to be inhaled by the user of the device directly through the mouth, whether or not the vapour contains nicotine;

“Enclosed public place” means,
(a) the inside of any place, building or structure or vehicle or conveyance, or a part of any of them,
(i) that is covered by a roof, and
(ii) to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, or
(b) a prescribed place;

“Enclosed workplace” means,
(a) the inside of any place, building or structure or vehicle or conveyance, or a part of any of them,
(i) that is covered by a roof,
(ii) that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and
(iii) that is not primarily a private dwelling, or
(b) a prescribed place;

“E-substance” means a substance that is manufactured or sold to be used in an electronic cigarette;

“Medical cannabis” means cannabis that is obtained for medical purposes in accordance with applicable federal law or as provided for in the regulations;

“Medical cannabis user” means an individual who is authorized to possess cannabis for the individual’s own medical purposes in accordance with applicable federal law or as provided for in the regulations;

“Prescribed” means prescribed by the regulations;

“Tobacco product” means any product that contains tobacco, and includes the package in which tobacco is sold;

“Tobacco product accessory” means a product that may be used in the consumption of a tobacco product, including a humidor, pipe, cigarette holder, cigar clip, lighter and matches;

“Use”, with respect to electronic cigarettes, includes any of the following:
1. Inhaling vapour from an electronic cigarette.
2. Exhaling vapour from an electronic cigarette.
3. Holding an activated electronic cigarette.

“Vapour product” means an electronic cigarette, an e-substance, or any component of an electronic cigarette.

Places Smoking Prohibited

Child daycare and pre-school grounds
E-cigarettes (indoors)
E-cigarettes (outdoors)
Enclosed public places
Enclosed workplaces
Hospital Grounds
Patios – Restaurants and Bars
Playgrounds, which may include Splash Pads and Wading Pools
Private Vehicles with Children Present
School property
Sports and Recreational Fields and Facilities

Buffer Zones

Patios – Buffer Zone 1-10 m
Playgrounds – Buffer Zone 11-20 m
Sports and Recreational Fields and Facilities – Buffer Zone 11-20 m

Policy Analysis

The definition of “smoke or hold lighted tobacco” does not capture the consumption of heated tobacco products. If the new SFOA, 2017 is to prohibit the consumption of these products in public places and workplaces, they would need to be prescribed by regulation. This is problematic, as it could take months before regulations are passed.

While it makes sense to permit the testing of e-cigarettes in specialty vape shops promote and facilitate the use of vaping products by current smokers, the regulatory proposal logically does not make sense. Simply pressing a button to demonstrate a vapour product, with no inhalation permitted, does not constitute testing. We recommend permitting customers, who are adults and mostly smokers, to test products prior to purchase.

We are extremely concerned about limiting the smoking of cannabis to private spaces. Ontarians who live in homes with gardens and outdoor spaces can step outside to smoke on their private property. However, for the millions of people (approximately one in four Ontarians) who live in multi-unit housing, stepping outside to smoke on their building property, often considered a public place, will be illegal. This will likely lead to increased smoking indoors, and increased exposure to second-hand smoke for unit occupants as well as those in neighbouring units. There has been a major concerted effort over the past twenty years by governments and non-government organizations to educate the public about the risks of exposure to second-hand smoke and to implement laws and policies to dramatically reduce this exposure. A provision that basically limits people to smoking cannabis indoors where others will be exposed is a major step backwards in the protection of the public.

We note with concern that restrictions on consumption of recreational cannabis in public places will be enforced by police officers. However, Canada’s police services, including the Ontario Provincial Police, say there is “zero chance” they will be ready to enforce new laws for legalized cannabis by next July. In contrast, the prohibition on the public consumption of medical cannabis and tobacco under the Smoke-Free Ontario Act, 2017, will be enforced by tobacco enforcement officers. Given the fact that almost one-third (31%) of cannabis smokers report mixing tobacco with their cannabis, and given the extensive training and experience of tobacco enforcement officers in enforcement of smoking bans, it only makes sense to also confer enforcement powers on tobacco enforcement officers to enforce the ban on use of recreational cannabis in public places. This would offer a seamless enforcement approach under both the Cannabis Act, 2017, and the Smoke-Free Ontario Act, 2017, as what is being smoked in a public place would not have to be proven or the police summoned before charges could be laid.

Age Restrictions

No Sales or Promotion of e-cigs to Minors – 19
Private Vehicles with Children Present – 16

Enforcement

Public consumption of cannabis under the Cannabis Act will be enforced by the police. An individual who is convicted for contravening section 11 (Restrictions on places of consumption) is liable:

(a) on a first conviction in respect of the section, a fine of not more than $1,000, and
(b) on a subsequent conviction in respect of the section, a fine of not more than $5,000.

Public consumption of medical cannabis under the Smoke-Free Ontario Act, 2017 will be enforced by tobacco enforcement officers.

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