Mandatory Drug Testing Complicates Marijuana Legalization Plan

Legalization is proving to raise more legal issues than Justin may have thought.

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Justin Trudeau’s Liberal government won an election, partly by promising to legalize recreational marijuana. But now, it appears the prime minister and his government are having second thoughts.

There’s still no clear indication when the government will finalize its plan to legalize marijuana. The latest story from CBC News is suggesting the government may be considering mandatory drug testing for certain jobs before it follows through with its plan and legalizes the drug.

MP Bill Blair, a former police chief in Toronto and the government’s point person on the file, told CBC Radio’s The House last week that people in safety-sensitive jobs — like pilots — could be subjected to mandatory testing in the future. 

“We examined very closely what we could do as far as testing when there was a bona fide safety requirement,” he told host Chris Hall. “In those very limited circumstances, it’s possible.”

But hold it a minute. Didn’t the Supreme Court of Canada already rule that mandatory drug and alcohol testing is illegal? Well, not exactly.

“Law relating to random drug and alcohol testing of employees is not as regimented or developed in Canada as it is in the United States. Employers in Canada are faced with few guidelines. Although some general principles can be drawn from jurisprudence, determining the permissibility of random testing remains a case-specific endeavour,” says a report in The Lawyers Daily

The same report then says this: “recent focus on drug testing in various sectors, particularly in transit, airlines and the nuclear industry, points to increased judicial and regulatory attention to this area.

“The current law on random drug and alcohol testing comes from the Supreme Court of Canada in C.E.P., Local 30 v. Irving Pulp & Paper, Ltd. 2013 SCC 34: it is permissible in safety-sensitive workplaces where there is evidence of a drug or alcohol problem that persists despite attempts to manage it. The emphasis of the Supreme Court was on balancing employee privacy rights and workplace safety. In Ontario, the Court of Appeal in Entrop v. Imperial Oil Ltd. [2000] O.J. No. 2689, held that that the test must measure current impairment rather than past drug use.”

So who knows anymore?

There are currently no federal labour rules on drug and alcohol testing outside of the military, and successive governments since the late 1980s have stayed away from the issue. However, the legal recreational marijuana market, which Ottawa hopes to have in place this summer, has placed pressure on the government to establish national rules for workplace drug testing.

Bill C-46 contains new offences for different levels of drug impairment and gives police the authority to use roadside saliva tests to determine if drivers have drugs in their system.

“Blanket random testing is not allowed,” Blair said.

But should it be allowed. Now that the government has opened up this debate again, the question is a reasonable one.

Diane Francis of The Financial Post took a look at the battle between Suncor Energy and one of its unions and came up with the following assessment.

Canada’s workplaces are arguably more dangerous due to a six-year battle between a union and Suncor Energy Inc. concerning the policy of random testing of workers in safety-sensitive jobs in the Fort McMurray region.

The union involved claims random testing infringes on the privacy of workers and that tests should only apply where there is reasonable cause to believe workers are under the influence of drugs or alcohol.

The company says it has evidence random testing works and that the safety of all workers should be a priority. So far the union has been allowed to use the justice system to delay implementation for six years and is now asking for leave to appeal before the Supreme Court of Canada.

So, the battles both for and against mandatory drug testing in the workplace drag on. And the Trudeau government’s plan to legalize recreational marijuana by this summer also drag on. There seems to be no clear answer as to when the government’s plan to legalize marijuana will be finalized. And there’s still no clear answer as to what exactly will be included in the legalization bill. This is just another curve thrown at a Trudeau election promise that seems no closer to being kept.


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Jeff Wilkinson

Jeff Wilkinson is a retired writer, who worked 35 years in print and broadcast journalism before retiring. He also served in the press operations crews at the 2015 Pan Am Games and the 2017 Invictus Games in Toronto.

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