As of October 17, 2018, recreational cannabis was legally available in Canada. This change in a century-old law created new questions and challenges for British Columbia’s liquor licensees.
Does Legalization Change the Duty of Care for Liquor Licensees?
Liquor licensees in British Columbia are not permitted to sell cannabis or allow it to be used on premises where alcohol is served. (The one exception is that a private retail liquor store may be able to share a common foyer with a retail cannabis store.)
However, because licensees have a duty of care not to serve patrons who appear intoxicated, they need to be aware of the impact of cannabis use.
It is well established that liquor licensees have a duty of care to their patrons not to overserve, and must stop serving customers who show signs of intoxication. If a patron does appear impaired, licensees should take reasonable steps to ensure they do not drive after leaving the establishment, and are delivered to someone who is sober.
With a projected increase in recreational cannabis use, licensees will also need to recognize the impact of this and watch for patrons arriving at bars and restaurants already impaired by cannabis.
A 2008 Ontario case illustrates the need for liquor licensees to monitor not just alcohol consumption, but other intoxicants as well. A restaurant was found to be in violation of the Liquor Licence Act when undercover officers saw patrons being served alcohol on the premises, despite their visibly using cannabis, smelling like cannabis, and showing signs of intoxication.
What to Expect with Legal Cannabis Use
Recent estimates are that 22% of Canadians already use cannabis and that most users are youth and young adults – the same demographic that frequents alcohol establishments. Other studies show that existing users could increase their consumption by up to 35% after legalization.
Ways to use the drug are also set to increase: cannabis-infused beverages for sale in liquor outlets are already in the works, and the Federal Government has suggested that edible and concentrated forms of cannabis will be legalized in 2019.
Monitoring cannabis intoxication is complex. Different strains and forms can produce different levels of impairment, and the co-use of alcohol and cannabis can have a more intense effect than either one alone; cannabis can increase the effect of alcohol, making a person seem more intoxicated than expected for a given number of drinks.
The risk of motor vehicle accidents also rises with the use of cannabis, and is further increased with the combined use of cannabis and alcohol. Accordingly, Canada’s Criminal Code will supplement current drug-impaired driving laws with three new offences to restrict the co-use of alcohol and cannabis.
The bottom line is that more people with ready access to cannabis will mean more intoxicated patrons who may pose a greater risk to themselves and the public. This, in turn, will add to the liability exposure for liquor licensees.
How Can Liquor Licensees Discharge Their Duty of Care?
Liquor licensees should re-evaluate their house policies to accommodate the greater risk posed by recreational cannabis use, both inside and outside their premises. Points to cover include:
- training staff to recognize impairment caused by cannabis,
- watching for patrons using cannabis outside the premises,
- watching for patrons who smell like cannabis,
- monitoring and refusing further service to patrons who appear impaired even if they have had little to drink,
- watching for patrons who are not using alcohol, but appear to be intoxicated from cannabis, and taking reasonable steps to ensure they do not leave the premises and operate a motor vehicle, and
- having protocols, policies and training in place to deal with impaired patrons.
BC’s mandatory certification for liquor licensees, Serving It Right, has been updated to train licensees and staff on the safe service of alcohol in relation to legalized recreational cannabis. While Serving It Right already speaks to drug consumption, legalization requires licensees to pay more attention on the co-use of alcohol and cannabis.
go2HR will continue to provide updates regarding the impact of the legalization of recreational cannabis – and the potential legal liability for licensees – as we move forward.
Sample house policy – Identifying Patrons Impaired by Cannabis and Alcohol