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The Constitutionality of Restrictions on Recreational Cannabis Advertising: Balancing Public Health and Freedom of Expression

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Western University Scholarship@Western Electronic Thesis and Dissertation Repository 12-5-2017 10:00 AM The Constitutionality of Restrictions on Recreational Cannabis Advertising: Balancing Public Health and Freedom of Expression Melanie L. McPhail The University of Western Ontairo Supervisor Jacob Shelley The University of Western Ontario Graduate Program in Law A thesis submitted in partial fulfillment of the equirr ements for the degree in Master of Laws © Melanie L. McPhail 2017 Follow this and additional works at: https://ir.lib.uwo.ca/etd Part of the Constitutional Law Commons, Food and Drug Law Commons, and the Health Law and Policy Commons Recommended Citation McPhail, Melanie L., "The Constitutionality of Restrictions on Recreational Cannabis Advertising: Balancing Public Health and Freedom of Expression" (2017). Electronic Thesis and Dissertation Repository. 5099. https://ir.lib.uwo.ca/etd/5099 This Dissertation/Thesis is brought to you for free and open access by Scholarship@Western. It has been accepted for inclusion in Electronic Thesis and Dissertation Repository by an authorized administrator of Scholarship@Western. For more information, please contact [email protected]. Abstract On April 20, 2016, Health Minister Jane Philpott announced that legislation legalizing recreational marijuana would be introduced in Spring 2017, with the goal of keeping marijuana out of the hands of children and profit out of the hands of criminals. Bill C-45, An Act Respecting Cannabis passed the second reading in the House of Commons, and contains restrictions on advertising cannabis, with a few exceptions. Advertising is recognized as a protected form of expression under the Charter of Rights and Freedoms, so if the government infringes on this right, they must be able to prove that it is justified in a free and democratic society, pursuant to section 1 of the Charter. The Supreme Court of Canada has twice assessed restrictions on tobacco advertising, providing a framework for assessing whether advertising restrictions pass constitutional muster. Using this framework, this thesis analyzes whether the proposed restrictions on advertising marijuana are constitutional. Keywords freedom of expression, cannabis, drug policy, charter of rights and freedoms, public health, marijuana, advertising i Acknowledgments I would first like to thank my supervisor, Professor Jacob Shelley, for his invaluable guidance, assistance, and support. His mentorship extends beyond the walls of academia, and he has consistently gone above and beyond to support my goals (or lack thereof). I most certainly would not have been here without him. I would also like to thank Paul Armstrong, for editing too many versions of the pages to follow, and for his ongoing support, especially in the moments that I thought I would never finish. To my colleagues in the Master's program in the faculty of Law at Western University, thank you for challenging me, and listening to me complain for the last year. Thank you to my friends and family for listening to me talk about cannabis for the last year. I can’t promise it will stop, but I am forever grateful for every attempt to take my mind off of my thesis. A special thank you to my mom, Linda, for forwarding me every newspaper article she found relating to cannabis. I would be remiss to not acknowledge and offer my sincerest gratitude to Milos’, The Black Walnut, and Fire Roasted Coffees for providing me with a place to write, and liquid motivation. Lastly, thank you to everyone in the Faculty of Law, specifically, Michael Coyle, Valerie Oosterveld, Mary Morris, and Mysty Clapton, for all of the assistance and support the faculty has given me. ii List of Abbreviations ACMPR – Access to Cannabis for Medical Purposes Regulations ATP – Authorization to Possess BHO- Butane Hash Oil CBD – cannabidiol CDSA – Controlled Drugs and Substances Act DPPL – Designated-Person Production License MMAR – Marihuana Medical Access Regulations MMPR – Marijuana for Medical Purposes Regulations PUPL – Personal Use Production License SCC – Supreme Court of Canada THC – delta-9-tetrahydrocannabinol WHO – World Health Organization iii List of Appendices Appendix A: Bill C-45 .......................................................................................................... 230 iv Table of Contents Abstract ..................................................................................................................................... i Acknowledgments ................................................................................................................... ii List of Abbreviations ............................................................................................................. iii List of Appendices .................................................................................................................. iv Table of Contents .................................................................................................................... v 1. Introduction ..................................................................................................................... 1 1.1. Theoretical Framework ...................................................................................................... 6 1.2. Methodology ......................................................................................................................... 8 1.2.1. Doctrinal legal analysis ................................................................................................. 8 1.2.2. Secondary Literature Analysis ...................................................................................... 9 1.2.2.1. Freedom of Expression ......................................................................................................... 9 1.2.2.2. Cannabis ................................................................................................................................ 9 1.2.2.3. Advertising .......................................................................................................................... 10 2. Introduction to Cannabis & Harms ............................................................................ 11 2.1. Introduction ....................................................................................................................... 11 2.2. The Concept of Harm in Freedom of Expression Litigation ......................................... 13 2.3. Introduction to Cannabis & Cannabinoids ..................................................................... 20 2.4. Cannabis Use in Canada ................................................................................................... 25 2.5. The Problem of Researching Cannabis ........................................................................... 28 2.6. Medical Uses of Cannabis ................................................................................................. 31 2.7. Harm & Risk ...................................................................................................................... 36 2.7.1. History of Assessing the Harm of Cannabis ............................................................... 36 2.7.2. Acute Effects............................................................................................................... 39 2.7.3. Long term Risks: Physical Health............................................................................... 40 2.7.3.1. Lungs .................................................................................................................................. 40 2.7.3.2. Immune System .................................................................................................................. 43 2.7.3.3. Cardiovascular .................................................................................................................... 43 2.7.3.4. Endocrine and Reproductive Systems ................................................................................. 44 2.7.4. Long term Risks: Cognitive Function and Mental Health Risks ................................ 45 2.7.5. Long term Risks: Fetal and Adolescent Development................................................ 51 v 2.7.6. Population Level Risks ............................................................................................... 54 2.7.6.1. Overdose ............................................................................................................................. 55 2.7.6.2. Dependence ......................................................................................................................... 56 2.7.6.3. Withdrawal .......................................................................................................................... 57 2.7.6.4. Suicide ................................................................................................................................ 58 2.7.6.5. Drugged Driving ................................................................................................................. 59 2.7.6.6. Psychosocial ........................................................................................................................ 64 2.7.6.7. Other Substance Use Disorders ........................................................................................... 66 2.7.6.8. Violence .............................................................................................................................. 68 2.7.6.9. Accidental
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