PASS THE DUTCHIE: WHO IS RESPONSIBLE FOR CANNABIS RELATED - - PowerPoint PPT Presentation

PASS THE DUTCHIE: WHO IS RESPONSIBLE FOR CANNABIS RELATED IMPAIRMENT?

Annette Uetrecht-Bain McCague Borlack LLP

HYPOTHETICAL FACT SCENARIO

• On a Saturday afternoon Bob goes to his local dispensary and

purchases cannabis

• He smokes some of the cannabis in the afternoon
• In the evening he drives his vehicle to his friend Ed’s house for a

party with and brings the remaining cannabis p y g g

• Ed also has cannabis, but in the form of edibles. Ed shares his own

Cannabis with Bob and also serves him some beer

• Bob leaves Ed’s house and goes to the local Bar where he

Bob leaves Ed s house and goes to the local Bar where he consumes more alcohol

• Bob leaves the Bar and on his way home drives his vehicle into a

tree tree

Who is Liable for the Accident?

Ed? The dispensary? The local pub?

Cannabis Act, S.C. 2018, c. 16

Possession 8 (1) Unless authorized under this Act, it is prohibited

• (a) for an individual who is 18 years of age or older to possess, in a public place,

cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;

• (b) for an individual who is 18 years of age or older to possess any cannabis that

they know is illicit cannabis;

• (c) for a young person to possess cannabis of one or more classes of cannabis

the total amount of which, as determined in accordance with Schedule 3, is the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 5 g of dried cannabis;

• (d) for an individual to possess, in a public place, one or more cannabis plants

that are budding or flowering; (e) for an individual to possess more than four cannabis plants that are not

• (e) for an individual to possess more than four cannabis plants that are not

budding or flowering; or

• (f) for an organization to possess cannabis.

Cannabis Act, S.C. 2018, c. 16 (cont’d)

Distribution 9 (1) Unless authorized under this Act, it is prohibited ( ) , p

• (a) for an individual who is 18 years of age or older
• (i) to distribute cannabis of one or more classes of cannabis

the total amount of which is equivalent as determined in the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 30 g of dried cannabis,

• (ii) to distribute cannabis to an individual who is under 18 years
• (ii) to distribute cannabis to an individual who is under 18 years
• f age,
• (iii) to distribute cannabis to an organization, or

(iv) to distribute cannabis that they know is illicit cannabis

• (iv) to distribute cannabis that they know is illicit cannabis

Penalties for Drug-Impaired Driving

Alcohol-impaired Charge:

• Alcohol-impaired driving
• Having a Blood Alcohol Concentration (BAC) at or over 80mg per 100ml
• f blood within 2 hours of driving

Penalty:

• 1st offence: Mandatory minimum $1000 fine; Maximum 10 years

imprisonment

• 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10

years imprisonment

• 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10

years imprisonment years imprisonment

• 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10

years imprisonment

Penalties for Drug-Impaired Driving (cont’d)

Drug-impaired Charge:

• Drug-impaired driving
• Having 5ng or more of THC per ml of blood within 2 hours of driving
• Any detectable level of LSD, psilocybin, psilocin, ketamine, PCP,

cocaine, methamphetamine, 6-mam within 2 hours of driving

• Having 5mg or more of GHB per 1 litre of blood within 2 hours of driving

Penalty:

• 1st offence: Mandatory minimum $1000 fine; Maximum 10 years

imprisonment

• 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10

i i t years imprisonment

• 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10

years imprisonment

Penalties for Drug-Impaired Driving (cont’d)

Combination Charge: Having a BAC of 50mg per 100ml of blood + Charge: Having a BAC of 50mg per 100ml of blood + 2.5ng or more of THC per 1ml of blood within 2 hours of driving Penalty:

• 1st offence: Mandatory minimum $1000 fine;

Maximum 10 years imprisonment Maximum 10 years imprisonment

• 2nd offence: Mandatory minimum 30 days

imprisonment; Maximum 10 years imprisonment p ; y p

Social Host Liability: Childs v. Desmoreaux

Facts:

• Social host held a New Year’s Eve Party
• Social host did not provide or serve alcohol to his guests

g

• Defendant drank at least 12 beers in 2.5 hours, was known for his heavy drinking, and had prior impaired

driving convictions

• One host walked him to his vehicle and the defendant drove away and caused an accident shortly thereafter

Decision:

• A positive duty of care may exist if foreseeability of harm is present and all other aspects of the relationship
• A positive duty of care may exist if foreseeability of harm is present and all other aspects of the relationship

between the plaintiff and defendant establish a special link or proximity

• 3 situations where this might exist

–

• 1. where a defendant intentionally attracts and invites third parties to an inherent and obvious risk

that he or she has created or controls (e.g. inner-tube sliding competition or manufacturers of inherently dangerous products) inherently dangerous products) –

• 2. Where there is a paternalistic relationship of supervision and control (i.e. parent-child, student-

teacher) –

• 3. Defendants who exercise a public function or engage in a commercial enterprise that includes

implied responsibilities at large (i.e. commercial host) It t bl f bl th t th l i tiff ld b i j d if th h t f il d t t th

• It was not reasonably foreseeable that the plaintiff would be injured if the hosts failed to prevent the

defendant from driving

• The court seemed to be persuaded by the fact that there was no evidence that the host knew that the

defendant was intoxicated

Social Host Liability: Wardak v. Froom (2017, ONSC)

Facts:

• The defendants had a party at their home for their son on his 18th birthday
• The plaintiff (who was underage), walked to the party and was one of the first

guests to arrive

• Guests were playing “beer pong.”
• Several guests said that the plaintiff brought and drank vodka and beer and that

Several guests said that the plaintiff brought and drank vodka and beer and that he was intoxicated

• One of the defendants noticed that the plaintiff was wobbling and offered to walk

him home Th l i tiff lk d h l t i t hi hi l d fi h d t

• The plaintiff walked home alone, got into his vehicle, drove over a fire hydrant

and into a tree

• The defendants brought a motion for summary judgment based on the Child’s

case

• The motion for summary judgment was denied

Social Host Liability: Wardak v. Froom (2017, ONSC) (cont’d) (cont d)

• The supreme court’s ruling in Childs does not

preclude finding a duty of care where there is a preclude finding a duty of care where there is a paternalist relationship or where the injured party is a guest rather than a third party party is a guest rather than a third party

• There were inconsistencies in witness

statements on the issues of whether the hosts knew that the plaintiff was intoxicated

• The motion for summary judgment was

y j g dismissed

Cannabis and Social Host Liability

• The Childs decision left open the possibility that there

may be liability attributable to a social host where the may be liability attributable to a social host where the social host knew that one of their guests was impaired

• This potential liability may be expanded by cannabis in

cases where the social host provides cannabis to a guest

• The liability may be further expanded where the host is

The liability may be further expanded where the host is providing cannabis to guests that are consuming alcohol given that the minimum blood alcohol for cannabis is l 2 5 i h it i d i bi ti

• nly 2.5 ng in cases where it is consumed in combination

with alcohol

Commercial Host Liability

• Commercial hosts, like bars and clubs owe a duty of care to third parties who may be injured by

intoxicated guests

• In the commercial context it is reasonable to expect that the provider will protect the public interest

In the commercial context it is reasonable to expect that the provider will protect the public interest

• Commercial hosts enjoy an important advantage over social hosts in their capacity to monitor

alcohol consumption

• Monitoring is relatively easy for a commercial host but is also expected by the host, patrons, and

members of the public p

• Commercial hosts have a special incentive to monitor consumption because they are being paid

for a service

• Patrons expect the number of drinks they consume will be monitored if only to ensure that they are

asked to pay for them

• Regulators can require servers to undertake training to ensure that they understand the risks of
• ver-service and the signs of intoxication
• Regulations impose special responsibilities on those who would profit from the supply of alcohol

and the sale of alcohol to the general public is understood as including attendant responsibilities to d th i k i t d ith th t t d reduce the risk associated with that trade

• Commercial hosts have an incentive to serve as many drinks as possible

The Commercial Host and Cannabis

Nobody knows what will happen, but…

• Commercial hosts will have to train their staff
• Commercial hosts will have to train their staff

regarding the signs of intoxication that accompany cannabis consumption

• Commercial hosts may face an increased duty in

terms of over service in cases where the patron has also consumed Cannabis due to the lower also consumed Cannabis due to the lower combination BAC and THC blood concentrations that attract penalties

• Commercial hosts may face an increased duty due to

the synergistic effect of THC and alcohol

Product Liability

• In the context of impairment product liability has typically not been

an issue (i.e. alcohol impairment)

• But, Cannabis is different
• Kirk et. al. v. Nutritional Elements, Inc. et. al. (2016, Denver District

Court)

• Man purchases edible legally from a dispensary
• Man becomes consumed with paranoia, shoots and kills his wife

Man blames behavior on edible

• Man blames behavior on edible
• Sons of deceased asserting a wrongful death claim against the

manufacturer of the marijuana gummy as well as the store that sold it sold it

Product Liability (cont’d)

• Manufacturers of cannabis products will

h t l l b l th i d t i d have to properly label their products in order to avoid liability M f t f bi d t ill

• Manufacturers of cannabis products will

have ensure that their products are free of contaminants contaminants