Are you a medical pot smoker? Or a recreational one? Living in a condo? A rental home? Or an apartment?
Remember last spring? Maybe you were shocked! Upset like me!
Cannabis was finally being "legalized!" But my condo board was hellbent on a complete smoking ban!
Say what? I'm a medical user! I can't toke at home?
Apparently not here at my 218 unit building in Toronto, Ontario, Canada! Nor in lots of other multiple resident properties, all across our province! See @ [LINK].
That's changed!
No, our building's new "Air Quality Control Rule" isn't perfect. It's a compromise.
But I can relax now. Toke peacefully in the privacy of my own home! If not in the other "common elements" or "areas"! Without the fear of being hassled!
It's far from perfect. However, our new rule is hopefully a useful model! One that you can build on!
Here's the complete legal text, along with my explanatory notes, in case it's of some help for you:
AIR QUALITY RULE
Pursuant to Section 58 of the Condominium Act, 1998
WHEREAS the Board of Directors of the Corporation has the authority to pass rules governing the use and occupation of the units, consistent with the Declaration, in order to promote the safety, security and welfare of the Owners and the property, or for the purpose of preventing unreasonable interference with the use and enjoyment of the common elements and other units; and
[In Ontario, smoking tobacco and recreational cannabis can be banned in a condo, apartment and/ or house. But check where you live. The laws vary. Across Canada. In different US states. And other countries.]
WHEREAS the Board of Directors of the Corporation recognizes there is a distinct category of medical user. To prevent against substantial interference with the reasonable use of property amongst other users, reasonable containment is the goal of this rule to support accommodation.
[Let's be clear! A complete smoking ban? It's not all right to harass a medical cannabis patient! Most of us are very reasonable. Just want to be left alone. To relax. Be safe. And peacefully medicate at home.
Of course, that can be problematic in a multiple resident building. If some of us aren't reasonable, then our neighbours definitely have rights too. But it's not fair to overreact. Automatically assume the worst.
Think of all the many contentious messes, stinks and noises in your building. Why centre us out for special punishment?
The bottom line? Nowadays, cannabis is legal in Canada. That should be good news! We tokers have been unfairly criminalized, bullied and harassed for far too long!
Lasch Law's complete smoking ban would've grandfathered us as medical users in my building. Require us to declare and share our medical information. That sounds like a legal quagmire. Smacks of bullying. [LINK]
Such reefer madness hysteria is at best manipulative. Ill-advised. And very mean spirited. Condo boards and landlords need to clearly hear that's not okay! Enough is enough!
Inevitably, one or more of these nasty pot bans are going to result in a major, civil rights challenge. Under close scrutiny, they're very problematic. Will get botched up. Backfire in court.
Especially when it comes to medical cannabis rights. The grass root activists among us need to lead the charge. Remind the condo board or landlord of our legal rights. So they don't carelessly over re-act. Rashly pass a complete smoking ban. Before carefully considering all of the legal implications.
With my board, it was a long, gruelling process. At heart, they're good people, whom I quite like. Still, to put it nicely, it required a very high spirited debate. But was well worth it.
In the end, we unanimously agreed to rewrite the complete smoking ban that Lasch Law had forwarded for our consideration. For starters, we added these specific references to our new Air Quality Control Act; "a distinct category of medical user", "other users" and "reasonable containment". Moreover, you can see that they are prominently placed within the opening clauses of the new rule we passed.]
NOW THEREFORE BE IT ENACTED AS A RULE OF THE CORPORATION AS FOLLOWS:
1] There shall be no smoking anywhere on, within or upon the common elements of the Corporation [which shall include all exterior common elements of the Corporation such as patios, terraces and/or balconies, if any] except in areas as may be specifically designated by the board from time to time, at its absolute discretion.
[This protects the resident's medical and recreational right to smoke cannabis within our own condo units! I chose to focus on medical user rights first and foremost as a part of my strategy. The legal arguments are the strongest. Blowing big holes in our odious, Lasch Law ban. Creating the most reasonable doubt.
As a result, the recreational users also benefited. Can now smoke in their homes. Tobacco smokers too. Otherwise, their case would've been a lot harder to legally make!
Seniors? New Canadians? People of colour? The LGBTQ residents? Quite understandably, few thought much of going out to the street for a toke! Nor do they want their loved ones to have to do so either. Mean. Not safe. Lots of hassles.
A tip: Be inclusive! Our Toronto condo building is very diverse. Certainly, casting a wide net helped provide a lot more good reasons and support to defeat the complete smoking ban! Moreover, it's a very important social justice issue too!
Also helpful: Whether a resident or director is to the left or the right, the threat of unwanted intrusions at home proved very convincing. Smacks of "big brother" and the "nanny state".
Ask what happens after that trip wire is crossed? What's going to be banned next? Of course, everyone has a pet peeve. The end result? A very slippery slope. All things considered, it's an argument which shoots lots more holes in the ban! From both sides of the political spectrum!
As a result, our complete smoking ban was withdrawn. The new rule more fairly treats cannabis, tobacco and alcohol exactly the same. All three are allowed in your own unit. But they are prohibited in all of the "common elements" or areas located inside and outside the building.
Smoking on the balcony? It's prohibited by our city by-laws anyway. Hallways, elevators, the parking garage and lobby? Also a no go.
Our board had already banned alcohol and tobacco from anywhere on the outside grounds long ago. Including at the BBQ pit. It's simple. Now the same rule applies for cannabis too!
That's only fair, if not a compromise of sorts. There's no smoking area outside. Or outdoor party drinks allowed during BBQ season.
I asked around. Nobody wanted to champion those issues! Well, they really aren't that important to me, except in principle. And everyone is still free to apply "from time to time" for an exemption, as "specifically designated by the board."]
2] For the purposes of the Rule, "smoking" includes, but is not limited to, the combustion, vaporization, and/or inhalation of tobacco or tobacco products, cannabis [marijuana] or cannabis products, or such other substances as the Board of Directors may prohibit from time to time, in it's absolute discretion, by any means or method including, but not limited to, cigarettes, cigars, cigarillos, joints, pipes, vaporizers or other means or methods as the Board of Directors may prohibit from time to time, in its absolute discretion.
[I would've liked a broad vaping exemption. But there wasn't enough interest and support!]
3] In the event that complaints are received by the Corporation that smoke or smoke odours are entering other units or the common elements as a result of smoking by a resident, that resident together with the corporation shall take reasonable steps to prevent such smoke migration from occurring, which may include, but is not limited to, the Corporation employing a licensed and insured contractor to mitigate the complaint involving that resident's unit at his/ her sole cost and expense.
[Corporations indemnify themselves. Our condo board is a corporation. This is a pretty standard legal clause, so I let it be.
The issue of "reasonable containment" however, could be more problematic! Of course, we need to be respectful and sensitive of others. And rightly so!
As for our superintendent? Property management? The contractors? Will they be properly trained and qualified? In case of a complaint? About a medical cannabis patient? To decide what's "reasonable"? Or how we are to be "contained"? That's very difficult to properly determine! Fraught with legal peril!
At least our medical user rights are clearly noted in the preamble! We're not just another resident who smokes. Can legally call in the real legal experts should any faux pas occur! A useful reference point for us! And hopefully for all concerned]
4] Owners shall be solely responsible for the remediation of any and all damage caused in their unit[s] and the common elements [which shall include all exterior common elements of the Corporation such as patios, terraces and/or balconies, if any] including but not limited to mould or mildew, attributable to the cultivation of cannabis by such Owner[s]. No more than four [4] plants shall be permitted to be cultivated in any one [1] unit at any time.
[Our condo building doesn't have any existing rules banning house plants. Basically, cannabis will be treated like any other plant. Our baseline? The government limit of 4. That mitigated the board's fear of large grow ops! Widespread mould! And skyrocketing electrical costs! Also, our "medical user" reference could arguably help protect the ACMPR grower's legal right to grow more plants, if needed.]
Every lease of a unit in the Corporation, entered into by an Owner on or after the date this Rule becomes effective, shall contain a written term explicitly stating that the no smoking or vaping of any type shall be permitted on the common elements of the Corporation, and proof of same shall be provided to the Corporation immediately upon request. In addition to all the other means of enforcement and remedies available to the Corporation, any breach of this rule shall be enforced as set out in the existing Rules of the Corporation. Where any provision in this rule is inconsistent with any other Rule of the Corporation, the provisions of this Rule shall prevail and the other Rule shall be deemed amended or appealed accordingly.
FINAL NOTES
As medical users and grass root activists, we really need to get involved where we live. It's well worth it! After all, a cannabis ban directly effects us at home!
Get involved with your condo board or tenant association. Attend the meetings. Network! Maybe try a friendly knock on doors where you smell smoke! Remember, there could be lots of possible allies living in your building. They can help fight the good fight too!
The sooner the better! Condo boards often make decisions with minimal input. So even a few, very unhappy voices can have a big impact.
Don't forget! After they pass a rule, it gets a lot harder to change! [LINK]
Renters face an even more formidable task. You don't own your house or unit. Still, the risk of doing nothing is just too high. And NOT in a good way!
It could be very insightful to hear what others are doing! Please feel free to share your "Comments" below!
Fortunately, I could explain a lot of the basic issues to the board myself. Perhaps that comes from writing my Oh Cannabis News + Views blog. Still, it was often in lay person terms. And there was a lot of deep rooted skepticism.
Cannabis might be legal. However, the reefer madness lies and confusion are still very hard to dispel. That won't change overnight!
When the going got tough, I had the board invite Toronto Cannabis Lawyer Caryma Sa'd to attend a meeting. She thoroughly confirmed the "medical user" facts and answered any questions. It was very refreshing, because she did so from a progressive perspective. Very rare! And of course, she knows all the proper legal terms and references. [SITE] [FACEBOOK]
Caryma also very much appreciated the board's concern about "reasonable containment". So that was also appropriately addressed to the board's satisfaction.
Overall, it was a very useful visit. Our board needed to hear all this, from a good, well versed lawyer, rather than just me.
In short, Caryma was a real deal clincher. Her visit helped dispel any lingering reservations. We were able to ditch the complete smoking ban. Then draft and pass our new Air Quality Control Rule.
James O'Hara from CFAMM [Canadians for Fair Access To Medical Marijuana] was also very helpful! I heard him and Caryma speak at Karma Cup 2018. Phoned him later for a sounding board, to make sure I was on the right track. [CFAMM] [TWITTER]
You might look both of them up here in the GTA. Or seek out other similar, cannabis advocacy resources to successfully fight your building's cannabis ban.
Hopefully, our new Air Quality Control Rule is of some help too!
Pax/
Solidarity!
David C
COMMENTS:
