Legalization, Regulation and Restriction of Access to Marijuana Response to Discussion Paper

CRIMINAL JUSTICE, HEALTH LAW AND MUNICIPAL LAW SECTIONS CANADIAN BAR ASSOCIATION

September 2016

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PREFACE

e ian n a n e Th Canad Bar Associatio e is nationalent inassociatio e representing in e 36,000 jurists,n including lawyers, notaries, law teachers and students across Canada. Th Association's primary objectivesn includ improvem e th law and th administratio of justice. e e n ate at e This submissio e was preparedn byeenth CBA’s Criminal e Justice, Healthn Law and Municipal Law Sectionittee s, with assistanc a from th Legislatiot ande Law Reform Director th CBA office. Th submissio has b reviewed by th Legislatio and Law Reform Comm and approved as public statemen of th CBA Criminal Justice, Health Law and Municipal Law Sections.

Copyright © 2016 Canadian Bar Association

TABLE OF CONTENTS

Legalization, Regulation and Restriction of Access to Marijuana – Response to Discussion Paper

I. INTRODUCTION ...... 1

II. MINIMIZING HARM AND PROTECTING CHILDREN AND YOUTH ...... 3

III. SAFE AND RESPONSIBLE PRODUCTION ...... 7

IV. DISTRIBUTION MODELS ...... 10

V. ENFORCING PUBLIC SAFETY AND PROTECTION ..... 13

VI. APPROPRIATE ACCESS FOR MEDICALLY AUTHORIZED PERSONS ...... 15

VII. CONCLUSION ...... 17

Legalization, Regulation and Restriction of Access to Marijuana – Response to Discussion Paper

I. INTRODUCTION

s

The Canadiane, BaralAssociation nCriminal Law Section andn it Committee is on Imprisonment and Releas Municip n TowardLaw theSectio Legalization,and Health RegulationLaw Sectio and Restrictionappreciate of thAccessopportunity to Marijuanato comDiscussionment o Paper e a y n (Discussion e fPaper ). Tha. CBA has, longe histor e of urging change f to Canada’sy laws o possessiong and us o marijuann In 1978n w urged th governmentn no the da to stop criminaliz in simple possessio and cultivatio of cannabis for a. adult'se ow use and the non - profit transfer e of small amountse Narcoticof cannabis Control Actbetween adultFood andusers DrugW Actalso. said that wcannabis should b moved from th Controlled Drugs and Substancesto the Act In 199 4, e commented, on Bill C-7, (CDSA), saying it should not be enacted as itn further ed “anmodel ofn dealing with drugs through criminalization e and , incarceratioe that e has bee prove ineffectivee a and counterproductive”. Mor recently in 2013 , th CBA urged th government tostak harm reduction approachs to dealing s with allsdrugs, and “adopt legislation and policie that provide mopportunitie for drug user to acces health 1 and social supports rather than subjectingrt the to criminal sanctions”.e g

The Discussionis Paper seems to sta from a similar place to thes CBA statementsss , suggestinn that cannab use, production and distribution should be regulated acro a Canada i ala mannere likee otheralnon -criminal, regulate d substances . Legalization represents fundament chang in th feder government’s s approachs to marijuana, which theny CBA fully f supports.aThe e Discussion Paper makesn numeroue statement acknowledgingn ms that a harmsal o marijuan us and , productio ar comparable to well-know har of other leg but regulated substances like alcohol and tobacco . , Bill C-7, Controlled Drugs and Substances Act 1 ion on See, Resolution 78-06-A; Criminal Justice Section (Ottawa: CBA, 1994) and Resolut 13-01-A, as just a few examples of CBA policy positions point. e 2 a Pag Submission on Marijuan Discussion Paper le , n

Whi aimed at advancing discussion a about legalizatione the Discussion. t Paper omits ta ny plat for removing marijuana as e scheduled e substanc from the CDSA I seems to sugges tha the criminalmlaw would continu to b engaged fore licensing production, e possession limits and the minimud age for legally using marijuana . Th approach in th Discussion Paper might be calle a step’ toward ‘decriminalization ’ but in our view cannot accurately be referred to as

‘legalizationt as has been suggested to Canadians m . s

I is problematic to proceed witha a new syste that maintain f the currenty CDSA offence . structure but allows marijuane e activity to proceed by way o legal l recognized exceptions . Those who contravenf e th exceptions would still fall within the ambit of existing offences Section 46 o, th CDSA currently provides for n breaches of regulatory offences undere the regulations but this option is often ignored i favour ofecharg es for substantiv e CDSAe 2 offenc es. The existing jurisprudenceal dealing with thes offences would b obsolet as built up underis a different conceptu framework s than that. which would existd after legalization.

Th aspect of the Discussion Paper i confusing f On the one han is the strong suggestion r that production, distribution and possession o, marijuanah would be treated like any.othe n substancee with some mind -altering effect suc as alcohol and prescribed drugss This factor s i th harsh impact of the criminal law, including imprisonment, criminal record and other 3 collaterale effects ina ppropriate andf unproductive n for production and possession of marijuana. 4 Th last Canadianc Commission o Inquiry o the subjects also generallyis s concluded: ss

Scientifi evidencel overwhelmingly e indicate a that cannab e i substantially a al le harmful than alcoho and should b treated not asal criminal issu a but as socie a and publical e healtht issuet . Whethert or not an individu uses a marijuan, should e b person e choice tha is no subjece to criminale penalties, e…a s drug it shoulde b regulated by th Stat 5 much as w do for win and beer henc our preferenc for legalization over decriminalization.

R v. Neary 6 d) 2 Also see 201 SKQB 218 (being appeale as to what happens during such an ‘interregnum’ period, where principles of sentencing, Collateralof Consequences‘general deterrence’ of Criminaland Convictions‘denunciation’ are concerned. , 3 See Criminal Justice Section (Ottawa: CBA forthcoming). Cannabis: Our Position for a Canadian Public Policy in 4 . See the Senate Special Committee on Illegal Drugs, (Nol Report) (Ottawa: Senate of Canada, 2002) www.parl.gc.ca/content/sen/committee/371/ille/rep/summary- e.htmlIbid 5 .

, l e 3 Submission of the Canadian Bar Association Criminal Justice Municipa Law and Health Law Sections Pag e , s e a

On th other hand the Discussion Paper appear to contemplat that marijuan woulde y continue to be criminal. ly sanctioned, leaving provinces and territories to regulat as the do

for otherle products a l e

Simpn analogies with how Canad f currentlya managese alcoho and, tobacco offere goode guidanc whe thinking about regulation. o le,marijuan us and production e e though thers ar certainly important distinctions For examp alcohol is legal and ther ar no limit on possession or . regulations for personal production. Sale and distribution are subject to government controls, Rules and regulations apply uniformly and allow producers and distributors to do business

without involvement of the criminal law. ,

A regulatory. t scheme Exciseshould Taxcover Act the use distribution, a ande production eof marijuana going forward Juse as the , with tobacco schem coulde includ eoffences carryinge e e appropriat fines and penalties or other sanctions for thos who choos to operat outsid th

regime.e t a

Th Discussion Paper does not offer research or data tos sugges that marijuan should be handled differently. because it posesn more seriousn risk than other regulated,e non-criminal substancess Health Canada’s ow publicatio with information alto healthcar practitioners 6 confirme theal longsta nding evidence e that marij uana has no leth dose. The CBA’s view is that a th crimin law should not b engaged fo r marijuanae production, use and distribution when non -criminal law regulatorye approach is adequat and appropriate . ,

As detailssabout th government’s plan forslegalization have yet to be released our e remaining comment will offer some general concern and highlight additional issues that ar important for further consideration. II. MINIMIZING HARM AND PROTECTING CHILDREN AND YOUTH

o e a

Thet Discussion Paper mtends t confound and conflate two separat s issues relating, to marijuan tha distinguish. ita fro other a psychoactiveal substances, al such a alcohol,, tobacco khats and e others Marijuan is both recreation and medicin substance and the two use need to b clearly disentangled and addressed differently.

Information for Health Care Professionals, 6 Health Canada, section 8: www.hc-sc.gc.ca/dhp- mps/marihuana/med/infoprof-eng.php e 4 a Pag Submission on Marijuan Discussion Paper g e is s

Durin Prohibition ine th 1920s, onencould obtain a “prescription” for alcohol, but yth wa , 7 often usedl for sever alcoholics whe sudden cessation could be problematic . B magnitudes g alcoho has been and remains a substance for recreational use. In contrast, there is a lon history of marijuana e being legitimately used for pain and other non-recreational purposes 8 considered to hav health applications . n

Health risks associated withe marijuana ca nybe well-controlled, particularly around dosage and dispensing.al Ae,related issu will bee how ma plants patients areeallowed for personal medicin us l as they look to sav money when health insuranc rsteps in only afterr an income - related annua deductible.. Otherse may Allardsimply prefer to grow thei own to betted control the 9 product they consume e In th recentle decision , , the Federals Court requiree the government to ensurs ‘re asonabe access ’ toe patients so issue t such as dosag orehome production limit. should b governed by th patient with tha patient’s healthcar practitioner, s ic

However recreational use will have the most impact s on varietys of products available, econom benefits to. users, reducing the illicit market and it enormou costs , and contributing eto harm 10 reduction Much can w be learn ed from the lessons, of Prohibition. nyCanada’s experienc with marijuana, which as only outlawed in 1923 e has reproducedl , ma aof the same social and criminal problems fromm that earlier era. Lik alcoho mthen marijuan ahas often providede f an e income alternative fro. those outside the mainstrea economy andt majort sourc o revenu for the black market This parallel economy has grownt to ethe exten tha the GNP of the BC 11 marijuanaA trade has been called equivale a nt to tha of som developing e countries .

‘4:20’ culture has aalso f developed e cachet among youth that can b compared nto the pre - ‘cancer -ncausing by ’ er o the cigarettn industry , which was promoted y in movies , o tv and radio, 12 and eve s the medical professio ofs the time. Whiless youth ma tend toward risk n -related behavio ur and seeking altered state of consciousne or self-medication, being a illegal

7 https://melnickmedicalmuseum.com/2010/04/07/medicinal d e -alcohol-and-prohibition 8 See, KPMG Paper produce for th Pharmacists of Canada: www.pharmacists.ca/cpha - ca/assets/File/cpha-on-the- issues/March2016_Allard v. Canada Improving_Medical_Marijuana_Management_in_Canada_vf.pdf6 9 , ,, 201 FC 236. 10 See for example Marijuanawww.cedro Growth-uva.org/lib/levine.alcohol.html in BC 11 Stephen. Easton,t , (Vancouver: Fraser Institute, 2014) www.cfdp.ca/mj_bc_04.pdf 12 , , , Dr Rober N. Proctor “The history of the discovery of the cigarette–lung cancer link: evidentiary traditions corporate denial global toll” (Stanford: Stanford University 2011).

, l e 5 Submission of the Canadian Bar Association Criminal Justice Municipa Law and Health Law Sections Pag y . is

substance onl coms pounds marijuana’s, h attractiveness The. reality that young people will continue to acces marijuana wit or without legalization, s What this oounderscores y is t he importance of avoiding the use of the criminal law a it has saddled t man young people 13 with criminal records and prejudic ed their lives .

Prohibition. moved alcohols from a psychoactive substance toward licensing a nd stand-alone outlets M arket ed food containing salcohol are rare and most containa, minutee e quantities, C more is for flavor than anything e else.. Thise i not an issue with mariju an wher th THC (or BD) the issue rather than th flavor. Th question is control and licensing of producers and standardization of doses This has been eaddressed in other jurisdictions, where consumables e such as chocolate - infused marijuana ar packaged in specific standardized dosages that ar not

individuallye e toxic.

Th mov to legalization will also require consideration e of employment, . business and educational options for those unemployed as th nblack market declines The CBA also 14 recommends expan ded use. of pardons,le and eve blanketeamnesties for those convict ed under previous n legislationg Peop in that situation continu to experience barriers , for example i gainin employment and being part of the legitimate economy because of their 15 criminal records. e o

The Discussion Paper acknowledges that ther is no greater harm t the public frome marijuanae than from other regulated f substancesle that may be considered g mind -altering. T hern ar countless examp les o peop .becoming e violent and engagin in violent crime whe undera,the influence of excessive alcohol Ther are. emany alcohol -related deaths every year in Canad o including a by direct alcohol poisoning Th e ffects of long term overuse of alcohol and tobacc putn tremendous strain on Canada’s public ehealth f systema every year. e, al

I contrast,al neither salhor t- nor longe -term us o ,marijuan e is associated t with violenc re physic ora emotion dependenc or addiction and ther is no threa of fatal overdose from 16 marijuan itself.

n Macleans 13 Ke McQueen, “Why it’s time to legalize marijuana” (2013) www.macleans.ca/news/canada/why -its-time-to-legalize-marijuana/ 14 CBACollateralResolution Consequences16-08-A. supra 15 supra , note 3. 16 Health Canada, note 6. e 6 a Pag Submission on Marijuan Discussion Paper a, le e e ,

In Canad a peop can grow, their own food and provid som. to neighbors a or sell it by the road or in farmers ’ market without having it tested or label led Halealth Canad and other s regulatory bodies oversee thes distribution of foods and herb substances ic isand the seed used to producey those substance in personal. isproduction, is to ensure the publ safe from unhealth foods e and substancesal But th appropriately handled under a regulatory power,

MINIMUMrather than AGEth crimin law.

e f e – s m

For the medic al use o marijuana,le age is not aneissue e f any bene fit fro marijuana for health , reasons, should b availab fore thos under th ag o majority as are offered to older patients again in consultation twith nth involved healthcare professionals .e by

There is evidenca e, e tha braie development eof young e people may b adversely y affected 17 marijuan uss and ther is othera evidenc to th contrary. Minors ma not be competental to make choice. about marijuan use, ormits short- and long-term impact on their ment functioning, This esupports a minimu age for distribution of marijuana for recreational purposes as ther is with alcohol . t . e

Establishing an age threshold should not impac the rules for personal production e Toecompar to cu rrent regulations. , for alcohol, people can home Excise-brew Act,alcohol, but cannot shar th alcohol with minors Or as another example, under the e e f people can grow up to 15 kg of 18 tobacco fora personal use or foreanybody over th f age o 18 years. e e e

Marijuan, has t been illegal sinc 1923 and part o th illicit economy. and cultur sinc th 1960’sal eyet i is often easier t for minors to obtain , than alcohol Whilee the easy choice could isbe a leg ag equivalent to tha for liquor (18 or 19 depending on th jurisdiction), the limit somewhat %arbitrary f e and should be carefullya considered e. ,

About 25 o thos arrested for marijuan offences ar aged 15e to 19t so any age threshold n 19 shouldis consider thate reality.al What ever threshold isschosen, th mos important consideratio to avoid using th crimin law against young user of marijuana.

t , a e in 17 The Journal of Neuroscience Barbara J. Weiland, e al “Daily Marihuan us is not associated with Brain Morphometric Measures adolescents or adults” (January 28, 2015) 3594 15905 -1512. 18 http://laws supra-lois.justice.gc.ca/eng/acts/e -14/ 19 McQueen, note 13.

, l e 7 Submission of the Canadian Bar Association Criminal Justice Municipa Law and Health Law Sections Pag III. SAFE AND RESPONSIBLE PRODUCTION

n Allard Canada e m

I the 2016 decision of v. h , thMarijuanaFederal forCourt Medicalexamined Purposesthe Regulationssyste of production , and distribution established throug the (MMPRle ) and found it both inadequate and unconstitutional . , as it inhibit w ed and limited reasonab Charter access to marijuana by medically. approved patients ThemsMMPR ere found to violat e section 7 for those patients The Courty examined proble associated more with home cultivation, and found that theal y largely appl to earlier. problemse with thee black market industry rather than legal medic home grower s currently e, Th MMARa regim began in 2001 aand by 2014 hade 38,000 patientss registered. n is To dat Health Canad has no records or dat about negativ n 20 incident arising i th period.a The Court held that remaining current problems ca be reasonablye mitigated in leg al regime. e a

Th ecurrent government t has indicated n Allardsupport for reasonabl access to marijuan for eadults mor generally, bu the conclusionsy i remain helpful byin the current context. Th MMPR scheme was rejected as onl, licensed producers designated the government fecould produce and distribute g marijuana which actually imped. es the public from obtaining sa s marijuana, againe fuel lin a blackle market in the asubstance Consider e, the cycle if marijuana i removed from th CDSA to enabss access through regulatory e schem but then that scheme, (like athe MMPRe ) impede s acce to such an extent thate th black market n Allardis reinvigorated e requiring responsr under the CDSA. The MMPR schem was also shown i , to hav resulted in othe o problems, including low-grade ors unusable marijuana production contracts offered ts unqualified producers, and issue around product delivered through the mail with it own possession and mailing ylimit s.

Return ing to the analog with alc ohol, a wide -rang ing but strictly regulated licensing n regime couldt permit any one wishing to acquire a license to. distributeis or producee e to obtai one ifethey me standards imposed by the regulatoryy authority Th would b more prudent thane, th y MMPR scheme, which allowed onl designated producers to cultivate and distribut possibl provide inge both more opportunitiess for corruption and inadequat suppl y to the public .

Lik thale currentf regulationa for alcohol,e those involveds in commercial production, distribu tion and s o marijuan would hav to obtain license after meeting and maintaining standards

Allard v. Canada, supra e , . t 20 t th , See on not 9 at para [25] re numbers of patients involved See the affidavi of Director Janine Ritcho re Heal Canada inspections and problems [32] lack of data[33], and at [101] – [130] any risks of cultivation. e 8 a Pag Submission on Marijuan Discussion Paper e . s s t

aimed at protecting th public Brewerie or distillerie are subjects to standas rds, pubs tha sell alcohol meet licensing re quirements , and product s sold in store or pub must me. et quality controlse , knowing that aeliquor ale control licensing finspection could occur anytime A similar afe regimf couldleappl y to th s and distribution o marijuana to ensure the eproduct is s and o predictab potency and quality. Craft growers could be allowed just lik craft brewers of

beer are. s s

Commercial productione of marijuanaal will also, have similaritie e f with growing tobacco,, such a needing to abids by agricultur standardss m including us o chemicals. However marijuanae ale growing differ in important way fro tobacco or alcohol production. Any new larg sc e commercial ocultivation of ,marijuana could present new security challenges that should b

factored int cost to users rather than being placed on taxpayers generally. . e al

All levels of government wille need to collaborate, on marijuanale production Th alfeder 21 government n can set baseline standards such as acceptab amountse a for person productione , but the swork swith th provinces and territories to determin regulatory schem that mitigate risk eto health and safetyal while permitting home production. Fire and building code standardsy at th federal, provincis and territorial level s will need to be reviewed to ensure the responda to safety concern e with eproduction using flammable and combustible processes. Canad may learn from th experienc in Colorado ands Washington to identify risks and 22 hazards ands implement any necessary afechanges. Thi regulatory, a scheme should include e guideline on proper equipment and. s practices as required licensing permit schem and compliance with, building bylaws e By developing this in collaboration with all levels of governmente al consistency can b achieved and tools and resources identified and provided at th loc level.

Excise Act, 2001 21 This has been done for tobacco at section 25 of the . 22 • For reference: , • www.fireengineering.com/articles/print/volume-168/issue-2/features/fire-codes-and- standards -denver-s-legalized-marijuana-industry-and-the-fire-code.html • www.robsonforensic.com/articles/codes-standards-hazards-marijuana-grow-facility-expert- witness, , • www.dmms2016.com/wp-content/uploads/2015/11/5-Fire-Prevention-Permitting- Safety.pdf www.leafly.com/news/politics/in-a-cannabis-grow-blaze-firefighters-worry-about-a-lot- more-than.

, l e 9 Submission of the Canadian Bar Association Criminal Justice Municipa Law and Health Law Sections Pag

Personal s production of. marijuana should be permitted similar to home production of alcohol, such a beera and wine Personal e production ss has advantages to ensure individuals who want marijuan can afford oand hav easy acce to it. , t

Currently, it is legal tm produce alcoholic products at homem for personal. use but no to distribute is or tsell the without a license, nor provide the . to minors The safety of homemade product lef to the individual decisions of those involved. Theo same approach could obe suitable for homesproduction and use ofs marijuana Adults wh possess would have t exercise the sames caution to protectss children. a with liquor and prescribed drug cabinets to ensure minor could not acce supply a s , , r s

Current concerns about marijuan y grow- op eratione e( fire mo uld electricity and othe issue around home production ) ma not apply to th sam extent for legal consumption for personal 23 use. People will tend. to avoid what might jeopardize their own ors their family’s safety , or their property value That said, t he production of marijuana differ. in importante ways from home production ofalealcohol and may call fore regulatory f oversighte, Unlik homen -brewing,n n whichn can include small -sc fermentation. in th corner o a garag caicnnabis ca be grow ir a outdoor garden or greenhouse Indoors,s sophisticated hydropons electronics and othe equipmenty (including air conditioneric . and othere device sto regulate air quality and humidity ma be involved s to avoid toxm mould Ther cans be issue with smell in residential areas,e and security issues distinct fro normal valuable kept atshome. If a person plansm to mak modification to a residence or outbuilding that affects m the electrical syste or might impact neighbors , theyl can be required to obtain permit fro local government to ensure compliance

with electrica and safety standards . al

A permit scheme alcould protect against safety issues in residenti neighborhoods without impeding person accessl toe,marijuana . The scheme could ree quire proof that hydroponic e gardens meet electrica. cod security measures are in plac and e outdoor gardens ar f effectively n secured n It could impose caps on amount s that can b storedal aleor the number ol plants

thate ca be grow to ensurea growth does not app roach an industri sc in residentia e area s.

Th demand for marijuan after legalization and regulationle could soverwhelm th present approved production sources. Necessary ando reasonabh o measure must be administered ino a mannern Allardthat, doesrtnot denyrd most people twh alwis t produce e at home the opportunity all toe d so.

I the Cou hea testimony tha leg growers hav security systems and c th Allard, supra e 23 not 9. e a Pag 10 Submission on Marijuan Discussion Paper e f e e al

polic i they ar invadedle . Illegal growers do not s call police as they ar implicated in illeg s activity. One valuab objective of legalization i to eliminate the illicit market so there i no profit to be made illegally. IV. DISTRIBUTION MODELS

n e

The threshold issue i developing e an appropriat distributiont model will be the role of all levels ofe governmenta . It may b safest to assumem tha the p rovinces andal territories w ould regulat marijuan e Tobdistributionacco Act with minimu standards under feder legislation f , muchalike standardse alin th . . Currently the criminal lawt powert gives control o marijuan to th feder government Withe legalization s and withou tha controlo , the federal. government could still maintains baselin regulation a it does for tobacc regulatios ns P rovinces,e alterritories and municipalitie will then proceedle as they and their constituent see fit. Th feder o government will remain responsib by y for international law issues and export, as for tobacc control is production generallye al, wa of licensing. s

It importants thats th feder government prioritize the goals it wishe to achieve and problem , it wishe to addresss through legalizati on of marijuana . As the Discussion Paper mentions some aspect of m arijuana regulation em ay mirror the. tobacco model, othere s the, e alcoholt model , or a hybrid of both models may b appropriateze In articulating thos goalse f th exten to which the federal government wants to emphasi harm reduction over eas o access may dictate appropriate restrictions forale distribution.f

Treating distribution of marijuana e e alelike thef s o tobacco ,might lead to more s restrictive measures thans treating it lik th s o alcohol . Howevere the main point i that any restriction must As note bef soesevere that they encourag development is of another black market for marijuana . on o th major advantages to legalization, th should be the bottom line that governs any restrictions. s

For tobacco, l distribution t model include storefronts that exclusively sells tobacco products or mixed retai storesm tha sell tobacco. e in accordance with strict guideline that include concealing. the product, fro eplain view Th e storefront , distribution model would ease accessibility Some legislations wher safeguards ar in places a llows tobacconist s to permit smoking on the premise to sample product. Province and territories have also legislated against smoking

, l e Submission of the Canadian Bar Association Criminal Justice Municipa Law and Health Law Sections Pag 11 ic s , , 24 tobacco in public places with a few exceptionss . Saskatchewanc for example bans smokings in enclosed publ place (including, e bu shelters,, publi transit vehicles, common areae of multi, - units residential buildings s privat clubs and public buildingss rented outs for privatic events) car with passenger under age 16, doorways, window and air intake of publ buildings, and 25 school grounds . Tobacco legislation varies from province to province to territory, and from

municipality, to municipality. s s ,

However to distributs e marijuana product in the same way a tobacco, iny stores that sell other products, ignores the intoxication factor not present for tobacco. and ma subject young people to the risk inherent a in more casuala exposure to substances For prescribed drugs, parents, are simply advised by Health Canad poster displayed by pharmacists to lock their cabinets

throwf e out oldal drugs and take precautions. a el o

I th feder government were to adopt mod like that used for stobacc or a combined by alcohol and tobacco. wmodel , smokingms or sampling marijuana and it derivativs es may, s analogy, be permissible sAs ith the har of second s -hand smoke , similar cannabi n derivative o presentinge risk should. be considered, a noted in the Discussion Paper i about the Colorad

experienc (at p14) o

For a modela closer t the current one for e alcohol distribution,e questions include whether marijuan which ise not smoked might b availabl for consumption as alcohol woulds be at establishments lik licensed restaurants.s Marketing s isand distribution to consumer could. follow alcohol ande winealmodels in variou jurisdiction e s,ala f under consideration, ein Ontario Dependinge f a on how th feder government is address es th go o harm reduction s som may disn approv o by scheme where marijuana ee sold in conjunction with alcohol.s Thi has already beeell proposed.

some governments s who s existing, liquor, commission as besta equipped to s marijuana

That coulde f raise itl own challenges, fif fore example,e marijuan usersa avoid entering liquor stores. becaus o alcoho dependency or i th ag limit for marijuan is different than that for alcohol

Non-Smokers Health Protection Act 24 See for instance the http://web2.gov.mb.ca/laws/statutes/ccsm/n092e.php . 25 See www.saskatchewan.ca/residents/health/wellness-and-prevention/tobacco/tobacco- legislation#tobacco -and- my-business ) d a d For municipal examples, bylaws are different between Saskatoon an Regin (see http://thestarphoenix.com/news/local-news/outdoor-smoking-ban-starts-friday-in-saskatoon an www.cbc.ca/news/canada/saskatchewan/some-regina-bars-moving-to-smoke-free-patios-1.3607836). e a Pag 12 Submission on Marijuan Discussion Paper f e , a y

Regardless o th distribution method. ensuring reasonabl, consistent national scheme forf distribution will entail challenges sDespite these challengess aftera, approximately 20 years o experience with Compassion e Club and dispensarie in Canad no specific. problems involving children or others hav been identifiedt rtas warranting particular concern Acknowledging the existing market, , legaliz ation migh sta by regulat ing existing industries or outlets. For . examplee rather than consuma ing alcohols on the streets, people are permitted to drink in bars

Th equivalent, for marijuana smoker e could be legalized vapor lounges, . t e

In Ontario almarijuan products ar already produceds inssome centres and some tha hsav ms revivedn loc economies. Repurposing factorie in town that have lost o ther industrie see 26 a obvious, choice for the produca tion and distribution through licensing, maerijuana products . Further legalized marijuan producers should include craft producers lik craft breweries,

either in alliancey a with or independent mfrom large producers.

Using solel mail distribution syste c ould delayeobtaining ea lawful l.product isand would be different than alcohole or tobacco that do noa t requirn purchas al by mai There no olegitimate reason to requir this model for marijuan whe it is leg and acknowledged as n more harmful that alcoho l and tobaccoic . Allowings for both mail and storefront delivery model may work best . Largere econom centre. n Allardcould, relye mainly on storefront s , while rural locations might rely mor heavily on mail I th Court heard evidence. thate maile order is insufficient sand patients generallyt ewent toe dispensaries instead Ate th esam e time , online . dispensarie aree importan to serv thos in outlying areas wher ther ar no dispensaries

Both should b permitted to meet market demand. e f e

The concern withs leavings matters, solely at th discretion o th provincess and territoriess is the likely inequitiee acros. borders which could lead toalblack market lin jurisdiction with more restrictiv measures Recent challenges to provinci liquor contro legislation demonstrate that importatione restrictions f e Constitutionon liquor Actproduced, 1867 in one province and imported to anotherss 27 violat section s 121 o. th . e A consistent regulatorye scheme acroe all , jurisdictions i ideal Following discussions at th Premiers’ Conferenc in Whitehors this July

26 http://business.financialpost.com/news/agriculture/welcome-to-smiths-falls-the-future-chocolate-pot- capital R v- ofComeau-canada 16 27 See , 20 NBPC 3 www.canlii.org/en/nb/nbpc/doc/2016/2016nbpc3/2016nbpc3.html?resultIndex=16

, l e Submission of the Canadian Bar Association Criminal Justice Municipa Law and Health Law Sections Pag 13 a ee e

new Canadian agreement on fr trad may liberalize cross-border trade in alcoholic 28 beverages. , e

The ability. of provincial territorial and municipal bodies toeenforc , regulation s should bel e examined While simplee possession charges e woulde decreas or end new regulations wil plac newssdemands on thos s entrusted to enforc th rules and should be as consistent and coherent

acro the country a possibles . s

Finally, international issue involving reciprocity between visiting medical patient and visitors fromssother countries need to be addressed, including the portability of personal medicine acro borders. V. ENFORCING PUBLIC SAFETY AND PROTECTION

o e e al ,

In addition a t ourecomments aoppos ing ongoing relianc a on th CDSA and crimine law s etting up system wher marijuan is partly regulated by new regulatory. t regim ands partly s s criminalized h under the CDSA would be confusing and hochallenging I again raise question a to whic level. of a governmentl , woulde regulate , and w should enforcee,and prosecute those a isregulations In lega market cth need for any offenses is questionabl especially e as marijuan 29 not addictive ine the scientifi meaning of that word. These issues should b carefully considered tbefor proceeding. e e e

If the inten is to continue, to criminaliz trafficking and production aof marijuanae e outsidf thle new regulatory regime criminal legislation .would have to address wid rang o culpabis conduct that could fall under the provisions The sentencing regime must reflect th and allow substantial judicial mdiscretion ins imposing a fit sentence . s

Mandatorysminimu s sentence are ill-advised as are restriction on the availa bility of . disposition such a conditional sentencing ord ero s, or absolute or conditional discharge s Criminal conduct ecould range from the adult wh o buys a smallho quantity of marijuana for teenagers outsid o a licensed store (analogous ta an adult w buys a bottle of alcohol for teenagersal ) t the spouse of a medi n cal marijuan user who. grows marijuana e fore that eperson’s e medic needs getting involved i contraband trafficking Judges must b abl to tak th

28 http://news.gc. R v Malmo-Levineca/web/article; R v Caine- en.do?nid=1103489 3 4 r R v PHS 29 1 3 See [2003] 3 S.C.R.n 571, 200 SCC 7 fo the finding of fact and , 201 SCC 44, [2011] SCR 134, for agreed definition of ‘addiction’ by all parties, including Canada. There is some evidence that cannabis is a effective exit strategy drug for opiate addiction. e a Pag 14 Submission on Marijuan Discussion Paper e f e

seriousna ess eof the offence ande th circumstances e o th offendere intol account when fashioning fit sentenc e and ‘safety valv mechanisms’ ar appropriat unti mandatory minimum 30 sentences ar repealed . a e e .

Recogn izing that marijuan us can b linked to dependenc ies and other health issues (e.g pain relief ), creating or expanding other means to diverts accusede out of the criminale justice system would be appropriate . When possible, diversion ar the most appropriat forum for

moste marijuanas offences. is s

Th amount that could constitute e possession. s for the purpose of trafficking e (if th offence a i maintained). would need to b clear Previou case law will no longer b relevant under new regime, How much can someone carry for personal use?ic What factors. go intos determining ny this? Again judges need discretion e to conduct a fact - specif analysis The nymerit s of a e brighte -line a rulesal would need, to ble debated.e And again, we question whether a limit mak senso in leg market as peop ar not currently limited in the amount of alcohol or tobacc they can legallye possess.g n

Befor actine eo ma rijuana impaired driving, the a government should have a conclusive e evidenc bas for. mak ings decisions and include mandatory review mechanism s as. th research evolvessThis i especially importants mgiven developing science in thi field THC and y other metabolites canm last in a person's .syste long after impairment (dependinge ehow f quickl an individual'. syste processe n them ) As such, n they are not any accurat measur o h impairment. Marijuana l ca also bee consumede i waysle f thate ma not show is up on a mout screening This wil also navoid th inevitabl batt o th experts that often seen in impaired driving cases, resulting i long er and more complicatea d court proceedings and worsen ing ea 31 delays in the criminal justice system . Canad should encourage further research in this ar throughe le federalf healthe research agencies. e . y

Th ro leo roadsid testinge ought to b clarified e Is it onl to eestablish e reasonablee and e probab grounds to make an arrest or can it b used to. provf the substantiv e offence? There is an analogy to roadsid screening e devicese efor alcohol I they ar only to b used sto mak an arrest, what further steps can th epolic tak to, assess impairment and what Charterlimit should be

placed on them? Sobriety tests ar problematic with implications for the right e ion in R. v Lloyd, 13 g 30 t See Suprem Court of Canada discuss 2016 SCC regardin legislation to address unique circumstancest tha may arise., m t 31 , Delaying Justice is Denying Justice On cour delays for criminal justice see the Interi repor of the Senate Committee on Legal and Constitutional Affairs (August 2016).

, l e Submission of the Canadian Bar Association Criminal Justice Municipa Law and Health Law Sections Pag 15 . e e f a e

against self- incrimination Thic presenc o scannabis in person’s system ny does not equat with being impaired. Chron medical user may register well over sa assignedg limits without impairment e of their abilitye to drive . Roadside sobrietys test by dru recognitione f experts should tak advantage of policee caral video capabilitie to record evidenc o

impairment , to reduc or eliminat factu disputes associated with a finding of impairment .

If a persone is convicteds of a marijuana driving offence, then provisions must be. developed ,for alternativ sanctios n commonly used with alcohol (‘Stream. Ae and Stream B ’) For example e interlock bydevice e are fcommonly a used toe monitor aalcohol ef Th accused f . and their family can b affected th loss oe a driver’ s licenc for even bri period o time Options ought to be developed s to provid means to get licence s back expeditiously and through early resolution

(such a interlocic k), balancing the need for monitoring and public safety. ,

Geogra phe limitation s on consumption aroun d minors ought to be a approached with. caution e,as it can b edifficult to know exactly ea whoy is around you and whethera l isminor is present Likewis someon unfamiliar with an ar ma not know whether schoo close by. VI. APPROPRIATE ACCESS FOR MEDICALLY AUTHORIZED PERSONS

s , e

The constitutionalle issueo ha now, been decided and medically approved patients. e Accessmust tohav Cannabisreasonab foraccess Medicalt marijuanaPurposes Regulationsas determined by them with their doctors Th , , (ACMPR) came into place .on Auguste al24 2016 largely restoring the situation h tprior ACto the wintroduction w of the MMPRss The federe government e should allowe time to see owal he MPR ill ork and then asse Medicalth degre Marijuanato which Accessther Regulationsis effectiv access to medic cannabis for patients compar ed to the , 32 (MMAR)y a . The ACMPReis oeffectively Allarda merger.of the MMAR and MMPR eand provides e onl temporary respons t the decision Further modifications ar expected with th elegalized e f model. y

While th issu o whether cannabis, willssbe removed from the CDSA hass been previousl . discussed and is currently unclear acce to medical marijuana ho remainh o strictlye a healthe issue Licenses and authorizations. , should be in place efor e those w wisee t produc medicinAC affordablyt at home Again w e suggest that tim b allowed to s whether thes MPR succeed a appropriately regulatinga home productione and providing unimpeded acces byto medicine Allard for strictly medical marijuan users. Som 28,000 patients’ status was preserved the th , t R. Smith, 1 R 32 Wi some exceptions as considered by the Supreme Cour of Canada in v [2015] SC 34. e a Pag 16 Submission on Marijuan Discussion Paper n n e le e .

injunctiod i 2014 so they wer ab to producs cannabis for themselves, often at home This occu rre in compliance with locala bylaw and without significant problems. e

The ability .of medical marijuan f dispensaries to provide product e to patients f must also b a considered a le Regardless , o whether cannabis is removed sfrom y th CDSA leor i and ahow marijuan as who is legalized some medical. emarijuana e patient ma , not be ab to, find designatedn y produceral or grow it themselves h Ther may b many reasonsh such as cost o r a perso tma use medic marijuana in. suc limited quantities or for suc shortn duration that it does noe warrant personal produc tion These patients, should be able Allardto obtai, ecannabi s from what ar nowe known as dispensaries when asethe Courte found in th licenseds producer, schem is not workable for that individual . Du to th deficiencies in the previou system manyepatients moved to dispensaries and consumer demand has resulted in a significant increas in their

numbers . e a, a

While some dispensaries are effectively allowed to operate in somee aplaces ineaCanad onlyt limitedy number. areo legally permitted to do so,hoand thos operat in grey ar subjec to p olice polic change s T fill the gaps for, a patients w cannote produce for themselvess nor obtain access tot designated producers regulatory schem could. allow dispensarie to provide produc tolepatients and producee product for that purposel Regulationsa should be opent-ended and variab enough to provid broad access to medica marijuan for patients. Patien growers should be able to offer their excess to those dispensaries. The BCe Compassion e Club SocietyNolin Reporthas existed. e for nearly 20 years and, is afavorably al referred, to in th 2002 aSenat Reporte ( ) Th” city of Vancouver has in s gener manner identified it as permissibl

“conditional use ing certainm commercial zone (subject to compliance mswith regulations).

For those return in fro active military duty with PTSD, ot her victi alof trauma, anda, others who obtaine relief (whether emotional, physical or somatic)al from medic e marijuan the more 33 healthcar providers e who can easily prescribe s medicins marijuana th albetter . W e suggest that providers bis encouraged to consider it s benefit and further medic s research bes supported in th area. Medicale professional e like naturopaths, herbalist and doctor of traditional Chinese medicin could also b allowed to prescribe marijuana for medical purposes.

supra , t 33 See KPMG paper, note 8 especially the comments in Par One.

, l e Submission of the Canadian Bar Association Criminal Justice Municipa Law and Health Law Sections Pag 17 VII. CONCLUSION

f a, a ll

With alegalization al o marijuan. Canad wi replac e an enormous, undergroundell illicit industry with new leg regime Security and regulatory enforcement as w as ensuring sufficient legal production for what could be significant demand, will be a challenge. s e

Municipal government will need toolse and resources f to appropriatelya. f ensure health andal safety for f residents in advancing, th legalization o marijuan Many o th fundament aspects o enforcement regulation and licensing for marijuana production,ee. e distributional and consumption will fall to local government ssto maintain and overs Th feder government should engagee with municipal government to achieve consistency and to mitigate any negativ impacts. a le e t e

Legalizh in g marijuan means allowing peop to possess and consum i in privat and in places wit the consenta of others around them. While p eople should, be able to grow their own marijuane asubject to local egovernment . rulesale and regulationsl most people wille likely prefer, to purchas supply from th store, Wholess and retai producers need s to b regulateds federally and also by provinces territorie and local governments. Thi require having products. tested and the results included on labels and packages before distribution to the public Onlines stores should be permitted ands regulated. Producerss should includes the small craft grower individually or in cooperative or other busines organization that should be appropriately regulated. e al t t le o

Th medic marke mus continue to exist and reasonab access must continue t be provided

to patients. e al al

Legalization requires th feder government to withdraw from exercising its crimin law power over cannabis e generallye and in all its forms,e e and it should be removede from Schedule II to the CDSA.y Th challeng will be to regulato th market to introduc standards and by conformit whileebeing cautious not t force eexisting or new markets out of business, and doing so, recreat the illicit markets that hav generated many problems at great expense.