Across this country, each Province and Territory seems to have taken a different public policy and legislative approach to the Federal Government’s decision to legalize recreational cannabis, not to mention the innumerable different schemes which have been enacted by hundreds of municipalities and municipal districts. Like a patchwork quilt covering this vast country, our new cannabis laws represent the great hodge-podge of fears, hopes, anxieties, and myths which cannabis inspires and reflect the uncertain impact that legalization will have on our laws, our culture, and our ways of life.
Alberta was the first province to finalize its response to federal legalization. The Alberta Cannabis Framework, which made legislative changes to provincial laws, was first announced in the fall of 2017 and was completed with a further round of legislative changes in the spring of 2018. Interestingly, Calgary and Edmonton are taking different approaches with respect to two central issues that municipalities have had to grapple with: (1) how cannabis retail outlets are zoned and licensed; and (2) where public consumption or smoking of cannabis will be allowed.
Zoning and Licensing of Cannabis Stores in Calgary and Edmonton
Alberta municipalities are required to operate under the province’s framework for privatized non-medical cannabis sales, which is operated by the Alberta Gaming, Liquor and Cannabis Commission (“AGLC”) and as set out in the Gaming, Liquor and Cannabis Act, R.S.A. 2000, c. G-1 (“GLA”). While the AGLC is responsible for regulating the distribution of cannabis and licensing of retail locations, municipalities are responsible for the land use and zoning rules which apply to the licensed retail outlets.
Municipalities are required to maintain certain minimum separation distances between cannabis retail stores and other uses of land. The Province legislated that cannabis stores must be located a minimum of 100 meters from both provincial healthcare facilities and schools. Municipalities were then free to set further requirements above this minimum threshold. In the case of schools, both Calgary and Edmonton have increased the required separation distance to address concerns about young people accessing, or being influenced by, cannabis sales. Both municipalities also decided to require minimum separation distances between cannabis stores themselves to prevent a ‘clustering’ of retail outlets in any one area of the city.
Calgary and Edmonton have not imposed the same separation distances for cannabis stores, which is an outcome of different local conditions. Calgary requires that a cannabis retail outlet be placed at a distance of at least 150 meters from schools, 30 meters from places of worship, pawn shops, and payday loan stores, and 10 meters from child care facilities. Further, cannabis stores in Calgary must be separated by a minimum distance of 300 meters from one another. Edmonton’s separation distances with respect to cannabis stores require 200 meters of separation from libraries and schools, 100 meters from parks and community recreation facilities, and 200 meters from one another. Separation distances, although found in every jurisdiction with legal cannabis stores, vary broadly depending on the specific concerns prioritized in that community.
An example of each city’s unique approach to zoning can be seen in regulations which pertain to cannabis and liquor stores. A Federal Task Force’s report on cannabis legalization strongly recommended that cannabis stores should not be located in proximity to liquor stores to discourage co-use. Calgary adopted these recommendations. However, Edmonton has not followed suit because finding sufficient commercial space for cannabis retail outlets and liquor stores with the requisite amount of separation was a challenge.
Another difference between the approaches adopted in Calgary and Edmonton is in the processing of applications for licenses and permits necessary to operate cannabis retail outlets. Calgary created a new online system capable of accepting applications for business licenses, building permits, and development permits in a single application. This application system (which is a nationwide first) has allowed Calgary to accept and process numerous applications quickly and efficiently. When it opened the system for public applications on April 24, 2018, Calgary received nearly 200 cannabis store applications in less than 15 minutes. With its accessible application system, Calgary took a ‘first-come, first-to-decision’ approach with respect to the issuance of development permits for cannabis retail outlets. This gave early entrants with a specific retail location in mind a huge advantage over competitors, given the 300-meter separation distance requirement between cannabis outlets.
Edmonton took a significantly different approach and initially adopted a lottery system to not only provide transparency, but also to level the playing field for applicants. After processing the initial crush of applications, Edmonton has now reverted to a ‘first-come, first-to-decision’ approach, similar to Calgary. Edmonton also sought to mitigate appeals to the Subdivision Development Appeal Board by defining cannabis retail stores as a permitted use, rather than as a discretionary use. This means that proposed cannabis retail outlets which meet the applicable regulations are guaranteed approval and cannot be appealed by unhappy neighbors. In Calgary, cannabis stores were designated as a discretionary use, which opens the door for opposition by affected neighbours and increases the discretion of development authorities to refuse or approve an application. At the time of writing, Edmonton had received approximately 240 development permit applications for retail stores while Calgary had received 371.
It is difficult to conclude which of Calgary or Edmonton has chosen a better model. Because of Calgary’s decision to designate cannabis retail outlets as a discretionary use, Calgary has seen numerous appeals to the Subdivision Appeal Board, many of which will have to be heard and determined in 2019. However, Edmonton is not without its own challenges, as the first three applicants chosen in its lottery system saw their applications refused for not meeting the city’s zoning criteria.
Public Consumption
Calgary and Edmonton have also taken different approaches to regulating the public consumption of cannabis. Prior to the legalization of cannabis, the Alberta Tobacco and Smoking Reduction Act, R.S.A. 2005, c T-3.8 (“Smoking Act”) generally prohibited the smoking of tobacco indoors in public places, but allowed smoking of tobacco by adults in any outdoor public place subject to municipalities requiring minimum separation distances from doorways.
With cannabis legalization, the Province amended the GLA, which now: (1) maintains a prohibition on the smoking or vaping of cannabis in those indoor areas where smoking was already prohibited by the Smoking Act; (2) expands the list of public places, such as hospitals, schools, and child care facilities in which the smoking or vaping of cannabis is not allowed; and (3) requires a minimum separation distance of 5 meters between the smoking and vaping of cannabis and outdoor public places where children are typically present, such as playgrounds, pools, splash parks, zoos and recreational facilities. It is important to note that both the Smoking Act and the GLA impose minimum prohibitions with respect to the smoking or vaping of tobacco or cannabis in public but expressly allow for municipalities to add stricter requirements (so long as the provincial and municipal schemes are not in direct conflict with one another).
Edmonton has adopted the Provincial scheme, which allows for the smoking and vaping of cannabis in most outdoor public places but has increased the separation distance from doorways, open windows, and air intakes from 5 meters to 10 meters. Moreover, with respect to playgrounds and other child-sensitive usage areas, those distances have been increased from 5 meters to 30 meters. Because Edmonton did not impose an absolute prohibition on the consumption, smoking, or vaping of cannabis in public places, no separate rules were required to deal with the issue of the public consumption of medical cannabis. Edmonton’s public consumption regulations were drafted with consideration of the fact that with the Province’s refusal to license cafes or lounges in which cannabis can be smoked or vaped, there may not otherwise be a place for someone to publicly consume recreational cannabis.
In Calgary, city council took a more restrictive approach and, following an extensive public engagement process, chose to prohibit the smoking, vaping, or consumption of cannabis in any public place. Although Calgary’s bylaw includes the potential for designated cannabis consumption areas, public feedback resulted in the first proposal for public areas being withdrawn. This has created some issues. As of October 17, 2018, those who rent or live in a condo where smoking of any kind is not allowed have no public place to smoke or vape cannabis. The same applies for those who are homeless and have no private residence in which smoking is allowed. And, since the imposition of a blanket prohibition on the smoking of cannabis in any public place would likely have led to a successful Charter challenge with respect to the consumption of medical cannabis, Calgary has created an exemption, allowing registered medical consumers to smoke and vape medical cannabis wherever it is legal to smoke tobacco.
Calgary and Edmonton demonstrate the different approaches that may be taken to regulating cannabis at the municipal level. It will be interesting to track how municipalities across Canada grapple with these difficult and important issues in the coming months and years.
Matt Zabloski is the Municipal Project Lead for the Legalization of Cannabis for The City of Calgary. Ola Malik is a lawyer in the Law and Legislative Services Department of The City of Calgary. The views expressed in this article are solely those of the authors and do not necessarily reflect the views of The City of Calgary.