The fight for cannabis has begun. It began the night the Trudeau Liberals won an unexpected majority. That was the moment we all realized Canada would become the second country in the world to legalize cannabis. Uruguay was the first. Eventually every country in the world will do it and we did it second. Pretty good. What happens next? In April 2017 the Liberals will introduce, not pass, legislation that will contain few details. In 2018 or 2019 the Liberals will officially ruin legalization with punitive, elitist, and unmanageable rules which will be followed by years of conflict, litigation, and legal confusion.
Circumstances will conspire to make bad regulation the easy road. The easy road to bad rules will be paved with bad advice. The police forces, fire chiefs, medical associations, hydro companies, and municipalities will tell the Liberals that cannabis should be regulated like uranium with only elite super companies or possibly provincial governments responsible enough to grow and sell this supposedly dangerous plant. Big cannabis, the deep-pocketed licensed producers, will agree that extensive regulations that only super companies have the means to implement will be good policy. Public health professionals will recommend onerous regulation more suitable for a more dangerous substance. Even jurisdictional considerations will point the Liberals the wrong way. The fact that cannabis has been grown and consumed for thousands of years without incident will not be noted.
Law enforcement authorities will be closely consulted providing plenty of bad advice that will be turned into law. Law enforcement enjoyed cannabis prohibition. It was good to them. It got them into a lot of pockets, trunks and homes.1 It got them a lot of money.2 They will tell the Liberals ridiculous things such as the justice system must be educated as to the dangers of cannabis gardens.3 They will give “expert” advice to the government such as that given by RCMP Corporal Shane Holmquist in Allard v Canada, 2016 FC 236 who said that home growers invite home invasions and are conduits to the black market. Mr. Justice Phelan said this about RCMP expert evidence,
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He was shown, in cross-examination, to be philosophically against marihuana in any form or use that his report lacked balance and objectivity. He possessed none of the qualifications of the usual expert witness. His assumptions and analysis were shown to be flawed. His methodologies were not shown to be accepted by those working in the field. The factual basis of his various opinions was uncovered as inaccurate. I can give this evidence little or no weight.4
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The police have not studied cannabis. They have not grown it, sold it, or consumed it. What the police know about cannabis would not fill a joint. They know how to arrest the people who use it. That is not helpful. We do not need to know how to do that anymore. The police will have a disproportionate say in this process. We can see that already with Bill Blair as cannabis czar. Embracing the police and all their backward-thinking suggestions will give the Liberals political cover in the next federal election against allegations that they are soft on crime.
The police will advise against dispensaries and home growing. They will favour a distribution model that is hard to access. They will say that anyone who has ever been involved with cannabis should be disqualified from participating in the new regime. They will press for criminal sanctions for non-compliance. They will oppose pardons for non-violent cannabis offences and support tough criminal sanctions for non-compliance. They will say the current market is dominated by criminal organizations. It is not. It is dominated by mom and pop cannabis enthusiasts. They will say that only rich guys in suits should be trusted to run this thing.
The licensed producers (or LPs) are the rich guys in suits who will second that idea. The LPs will say, as the police did, we need tough rules to keep us safe. The LPs are the wealthy investors who sunk millions of dollars into a license to grow and sell medical cannabis. These poor rich investors are all losing money because medical cannabis patients do not want to buy their cannabis. It is too expensive. The federal court in Allard recently found that cannabis patients cannot afford the LP cannabis and that for a fraction of the cost the patients can access their medical cannabis by growing their own which has the added advantage of giving them control over their medicine.5 In Allard the government was given six months from February 24, 2016 to fix the broken system. The obvious and likely fix is bringing back home growing which will probably mean that, in the future, medical patients can grow at home, but everybody else is prohibited. That is a model that will definitely fail. The root problem for the LPs is that their cannabis is too expensive to compete with home growing, cooperative growing, or dispensary cannabis.
Legalization offers hope that their once bad investment will be transformed into something more lucrative. The recently renamed LP industry association Cannabis Canada lobbied the City of Toronto for the Toronto dispensary crackdown.6 Cam Battley, chair of the advocacy committee of Cannabis Canada, said, “If the city fines dispensaries and shuts them down, the approach is obviously strong-armed, but I think it stems the growth and impact (on licensed producers) more than just letting them proliferate.”7 The LPs intend to make money. I expect they will lobby the Liberals for a distribution model that permits only LPs to sell and grow cannabis. They will want the current dispensaries shut down so that they may be replaced by dispensaries run by the LPs. They will seek tough criminal sanctions for non-compliance. They will oppose home growing. They will say that anyone who has ever been involved with cannabis should be disqualified from participating in the new regime. They will also seek greater freedom to advertise, market, and sponsor. The LPs have an intimate relationship with the Liberals.8 The LPs have a lot of money. They are organized. There are currently 32 of these big companies9 with several hundred more in queue. The LPs are big cannabis. They will be hard to resist.
The public health professionals will seek onerous rules in which cannabis is hard to access with high prices so as to curb demand.10 The Liberals will see this as aligning with the law enforcement/LP model in which only high-priced super companies are responsible enough to grow/sell while the moms and pops of cannabis will be aggressively sanctioned for non-compliance. The public health model does not fit nearly as neatly into the law enforcement/LP model as the Liberals will claim. There are many aspects to the public health approach that will clash with the Liberal narrative. For example, public health is concerned about the threat of big cannabis.11 The Liberals should be as well. The public health approach sees the potential for big cannabis to manipulate the marketplace through marketing, advertising, sponsorship, and adulterants. The public health model also would like to see a government monopoly, limited hours, limited purchasing, plain packaging, restricted potency, extensive treatment options, ongoing monitoring, and investment in more public health research, of course.12
The public health model holds positive public health outcomes as the most important consideration. This approach makes sense when regulating hard drugs, such as heroin and cocaine, as these drugs have significant public health consequences. Cannabis, unlike heroin and cocaine, is a mild substance of low toxicity. When the health consequences for society are more modest, public health becomes less of a consideration and other factors such as respect for personal autonomy must play a larger role.13 Respect for personal autonomy discourages paternalistic interventions because they involve a judgment that the person is not able to decide for herself how best to pursue her own good.14 Despite this, expect to hear the Liberals to use the words “public health” a lot in next three years as public health is used as a fig leaf for the law enforcement/ LP model.
Jurisdiction will also point the Liberals in the wrong direction. No government ever wants to give up jurisdiction. For a government, jurisdiction is power. The Liberals will want to maintain as much as they can. They will be vying with provincial governments trying to elbow their way in. The Constitution Act, 186715 gives the federal government exclusive jurisdiction over criminal law and procedure in criminal matters while giving the provinces authority over property and civil rights. There is no explicit grant of authority over health, rather, it has developed as a divided jurisdiction. The Liberals will be on safe jurisdictional ground if the legislation can be defended under the criminal law power.
Criminal law legislation must have a valid criminal law purpose backed by a prohibition and a penalty.16 A valid criminal law purpose must be directed at prohibiting matters that represent an “evil or injurious or undesirable effect upon the public.”17 Purposes such as peace, order, security, health and morality have been recognized as criminal.18 The criminal law power has been used to apply to a lot of different situations suggesting elasticity; however, there are limits. In the Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] SCR 1, it was found that margarine did not constitute a hazard to health and the legislation was focused on trade. Rand J. said this about the attempt to fit the legislation within the criminal law power, “there is nothing of a general or injurious nature to be abolished or removed; it is a matter of preferring certain local trade to others.”19 If the Liberals want to maintain maximum jurisdiction then they will need to cast this process as an attempt to better prohibit cannabis harms. This suggests that punitive regulations along with tough language about stomping out some yet to be articulated evil will put the Liberals on a more solid jurisdictional footing. That would be a smart approach if maintaining jurisdiction were an important priority.
What should the Liberals do?
The Liberals should permit home-growing and cooperative growing with reasonable regulations ensuring electrical safety and air quality. That should not be difficult as it is just a plant. The risk of electrical hazards can be addressed by having a certified electrician take care of any electrical installations.20 The risk of toxic mould can be avoided by having a proper ventilation system.21 I can grow tomatoes in my home, but if I grow cannabis then my house explodes. This police/fire misinformation was exposed in Allard.
The Liberals should permit the mom and pop cannabis enthusiasts to operate adult use dispensaries under reasonable regulation. The Toronto dispensaries were maligned by the City of Toronto for not following consistent rules. That is because there were no rules to follow. The dispensaries want rules. Give them coherent rules and they will gladly operate within that framework. These are the people who understand this plant best. They have the potential to contribute a craft cannabis niche that would richly enhance the market while not indoctrinating every human in Canada to consume corporate cannabis. There is no need to put these micro-artisans out of work and discard their knowledge and expertise.
The Liberals should create an open and competitive legalized cannabis marketplace, where the barriers to entry are reasonable and comparable to similar industries such as wine, beer or natural health products.22 The LP application process was plagued by opaque standards that shifted over time and seemed to have more to do with who you knew than the quality of your application. There should be measurable pre-license requirements applied with reasonable application fees.23
The Liberals should recognize that cannabis did not just fall from the sky. There is already an existing market infrastructure. The new regime should incorporate this existing market infrastructure. The cannabis community is not going to stop just because the government tells them that corporate Canada is going to be taking over cannabis distribution. The growers will continue to grow and breed a wide range of diverse strains. The bakers will continue to bake, package, and label edibles. The extract artists will continue to produce concentrates. The dispensaries will continue to sell a wide array of cannabis products. The Liberals know this and they also know that they could solve the problem by bringing the cannabis community in and regulating them, but they won’t. Accordingly, despite legalization, the unregulated cannabis grey market will continue to flourish alongside ongoing criminal charges, protests, litigation, and legal confusion.
1 Senate Committee on Illegal Drugs, September 2002, Cannabis: Our Position for Canadian Public Policy, pp. 334-347.
2 Ibid, pp. 328-33.
3 Ontario Association of Police Chiefs, 2003, Green Tide – Indoor Marihuana Cultivation and Its Impact on Ontario, p. 39.
4 Allard v HMTQ 2016 FC 236 at paras. 123-126.
5 Allard, supra note 4, at paras 165-171.
6 Quito Maggi, “The Simple Reason Behind Toronto’s Marijuana Dispensary Crackdown”, Huffington Post (May 24, 2016); Daniel Leblanc, “Medical pot growers lobby Ottawa to shut down pot dispensaries”, The Globe & Mail (January 21, 2016).
7 Peter Koven, “Toronto’s marijuana crackdown follows heavy lobbying by legal pot producers”, National Post (May 19, 2016).
8 Daniel Leblanc, “Ex colleague will lobby MP Bill Blair to restrict field of pot growers”, The Globe & Mail (January 10, 2016); Marc Emery, “Marc Emery: Why did Justin Trudeau put a past kingpin in charge of marijuana task force”, Georgia Straight (June 17, 2016); Precedent, December 3, 2014, Daniel Fish. The Globe & Mail (January 21, 2016).
9 There are 32 licensed producers as of June 20, 2016.
10 Centre for Addiction and Mental Health (CAMH), October 2014, Cannabis Policy Framework, p. 12; City of Toronto Medical Officer of Health, May 13, 2016, Legalization and Regulation of Non-Medical Cannabis, pp. 12-13.
11 Sheryl Spithoff, Brian Emerson and Andrea Spithoff, “Cannabis legalization: adhering to public health best practice”, Canadian Medical Association Journal (September 21, 2015); Canadian Centre on Substance Abuse, November 2015, Cannabis Regulation: Lessons Learned in Colorado and Washington State, p. 8; Ian Culbert, Executive Director of the Canadian Public Health Association, “Cannabis reform must not be derailed by special interest”.
12 CAMH, October 2014, Cannabis Policy Framework, pp. 12-13; City of Toronto Medical Officer of Health, May 13, 2016, Legalization and Regulation of Non-Medical Cannabis, pp. 12-13; Mark Haden and Brian Emerson, “A vision for cannabis regulation: a public health approach based on the lessons learned from the regulation of alcohol and tobacco”, Open Medicine v. 8(2) 2014, June 10, 2014; Canadian Centre on Substance Abuse, October 2014, Marijuana for non-therapeutic purposes, pp. 8-9.
13 B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315 at para. 80.
14 John Christman, “Autonomy in Moral and Political Philosophy”, 2.2, Stanford Encyclopedia of Philosophy.
15 Sections 91(27) and 92(13) of the Constitution Act, 1867 (UK), 30 and 31 Vict., c. 3, reprinted R.S.C. 1985, c. 16.
16 Reference re: Firearms Act (Canada), [2000] 1 S.C.R. 783 at para 27.
17 Reference re: Validity of s. 5(a) of Dairy Industry Act (Canada), [1949] S.C.R. 1 at para 142 (Margarine Reference).
18 Reference re: Assisted Human Reproduction Act, [2010] 3 S.C.R. 457 at para 41.
19 Margarine Reference, supra note 16, at para 147.
20 Allard, supra note 4, at para 116-122.
21 Allard, supra note 4, at paras 123-130.
22 Cannabis Trade Alliance of Canada, Cannabis Legalization in Canada: Creating a World-Class Sustainable Industry Through Inclusivity, Transparency and Evidence-Based Policy, May 24, 2016, p. 16.
23 Cannabis Trade Alliance of Canada, Cannabis Legalization in Canada: Creating a World-Class Sustainable Industry Through Inclusivity, Transparency and Evidence-Based Policy, May 24, 2016, pp. 12 and 14.
Paul Lewin is a Toronto lawyer with a focus on cannabis offences. He is also the national secretary for NORML Canada. He has litigated the constitutionality of the religious use of cannabis, the medical cannabis doctor-as-gatekeeper rules, and the privacy laws that permit the police to access without warrant the hydro consumption records of cannabis growers.