High and dry - legalization of cannabis in Canada and the impact on shipping

Following the enactment of the Cannabis Act on October 17, 2018, adults in Canada may possess, grow and use small amounts of cannabis for recreational purposes.

As with the use of alcohol before it, shipowners and seafarers are looking to the regulatory regime applicable to cannabis use to ensure the operation of vessels remains safe for crew, property and the public.

New cannabis-related prohibitions

The new cannabis regime includes three new drug-impaired driving offences under the Canadian Criminal Code, which apply not only to operating motor vehicles but also to operating vessels.

A person may not operate a vessel with a drug (THC) blood level between 2 and 5 nanograms (ng), a level above 5ng (which comes with higher penalties), or a blood alcohol concentration of 50mg per 100ml in addition to a THC level of more than 2.5ng. It is also an offence to have one of these specified alcohol and drug-blood levels within two hours of driving the vessel. This two-hour provision was enacted to manage the situations where a driver might promptly partake in using cannabis or drinking alcohol immediately after an incident to try to make it difficult to measure the driver’s alcohol or drug consumption levels when the incident itself occurred.

Additionally, while not a new provision, the Criminal Code specifies that a person may not operate, assist in the operation of, or have the care or control of a vessel while impaired, whether or not the vessel is moving. This would include impairment resulting from the use of cannabis, alcohol or other drugs. Impairment is not tied to any specific levels of THC or alcohol, but involves any kind of impaired ability and is determined subjectively.

The consequences of a conviction under the Criminal Code for a driving offence relating to cannabis or alcohol can be surprisingly broad. If someone is convicted of impaired operation of a vessel, the person’s road vehicle driver’s license is usually suspended in addition to the person’s vessel operator’s certificate. Likewise, if a person is convicted of driving a vehicle while impaired and the person’s road vehicle license is suspended, the person’s vessel operator’s certificate may also be suspended.

Impact of cannabis regime on existing obligations of seafarers

Transport Canada has reminded the marine industry that existing obligations of seafarers will continue to be applicable notwithstanding the legalization of cannabis. The Canada Shipping Act, 2001 (CSA) and its regulations provide that seafarers must work in a way that does not jeopardize the safety of the vessel or of any person on board. Under the CSA, seafarers also must report to the master any change that could affect their ability to work safely.

Under the CSA’s Safe Working Practices Regulations, a person is prohibited from being in a working area if the person in charge of the area believes his or her ability to work is impaired by alcohol or drugs. “Working area” includes anywhere work is being done on board a ship. These regulations apply to anyone working on a ship in Canada or on any Canadian ship outside of Canada. Therefore, this provision applies to foreign ships in Canadian waters.

Most seafarers who work on board a Canadian vessel are required to undergo a periodic marine medical examination from a medical examiner approved by Transport Canada, which attests that the seafarer is fit to work at sea. Transport Canada warns that cannabis consumption is a factor marine medical examiners and Transport Canada will consider when issuing marine medical certificates.

Responsibilities of the Authorized Representatives and Marine Employers

Under the CSA, the authorized representative is the person responsible for acting in all matters relating to the vessel (unless otherwise specifically assigned). The authorized representative of a Canadian vessel is the owner of the vessel and if more than one person owns a vessel, the owners must appoint one of themselves as the authorized representative. If the owner is a corporation, the authorized representative is the corporation.

The authorized representative is responsible for ensuring his or her crew understand their responsibilities under the CSA and that the seafarers and operations on the vessel comply with the CSA, including the new cannabis-related prohibitions set out above.

In addition, the Canada Labour Code, which applies to many Canadian marine operations, requires employers to develop and implement a hazard prevention program to protect employees from workplace hazards, which should include impairment by drugs or alcohol.

The new cannabis regime also amends the federal Non-smokers’ Health Act, which is intended to protect non-smokers from second-hand smoke in the workplace. The smoking and vaping of cannabis is now prohibited in the workplace, the same as for tobacco. Workplaces can include vessels.

International Carriage

Notwithstanding the legalization of recreational cannabis use in Canada, it remains a serious criminal offence to carry any cannabis or cannabis products across Canada’s borders. This is the case whether or not a person is travelling to or returning from places with legalized or decriminalized cannabis, or if the cannabis is for medical purposes. Even if the traveller is not prosecuted for a criminal offence, they run the risk of being banned from entry into the country of attempted importation.

In conclusion, as with any new work safety regime, gaps and pitfalls will likely be identified as the open recreational use of cannabis becomes more prevalent. The use of medically prescribed cannabis presents a separate set of issues not addressed in this summary. Other than attempting to determine impairment by measuring the amount of THC in a user’s system, the safety regime relies more on common sense than science. However, the legalization of cannabis may promote greater scientific research on impairment, which will, in turn, assist in implementing and enforcing effective safety management systems that address the possible consequences of recreational cannabis consumption.