The Cannabis Act, Bill C-45: Problems and Prospects

The Cannabis Act, Bill C-45: Problems and Prospects Canada’s Plan to Tax and Regulate As many observers have noted, there are two key goals wrapped within this initiative – eliminating the black market in cannabis and reducing the possibility of access to minors. In June of 2016 the Trudeau Liberals produced a discussion paper “Toward the Legalization, Regulation and Restriction of Access to Marijuana” (Government of Canada, 2016), and appointed a nine member task force composed of experts in health, justice, policing and addictions. The task force reported to the federal government in late November of 2016, with recommendations for legalization, regulation and restriction of access; they held meetings with governments and experts across the country, and within the United States, and engaged in online consultations. The Discussion Paper set the tone for the work of the task force and gave some clarity to the government’s agenda, suggesting five themes that the government wished to focus upon in creating this new legislation: 1) Minimizing harms of use; 2) Establishing a safe and responsible production system; 3) Designing an appropriate distribution system; 4) Enforcing public safety and protection; and 5) Accessing marijuana for medical purposes. Given the focus today on justice and public safety, I will speak briefly to the manner in which the legislation addresses each of the first four themes. Minimizing the Harms of Use With respect to minimizing the harms of use, the Task Force recommended a minimum age of 18 for legal purchase; restrictions on advertising and promotion of the attractiveness of products were suggested, with the caveat that useful information about the product – strain and THC and CBD content would be anticipated. The Task Force argued that taxation and pricing should reflect a balance – protecting public health, but not setting prices at a point where the black market would continue. They urged that edibles, while appropriate for distribution, should be sold in childproof packages, with standardized single servings and a universal THC symbol. Unfortunately, section 33 of the Cannabis Act, read in concert with Schedule 4, limits classes of cannabis for sale to dried cannabis, cannabis oil, fresh cannabis, cannabis plants, and cannabis plant seeds. Cannabis edibles and balms are excluded from sale, and this may prove problematic, encouraging a continuation of the black market, and contrary to the recommendations of the Task Force. I would note that the minimum age of 18 seems appropriate, given existing policy for alcohol and tobacco, both more destructive drugs for most individuals and in most circumstances. Similarly, marked deviations from current products and from current THC levels in the illicit market could serve to undermine the legitimacy of the new regime. Less troubling (with respect to the possibility of supporting the continuation of an illicit market) are restrictions on advertising, reasonable limitations on purchase, and reasonable restrictions on locations for sale (see Kleiman, 2016, for a good discussion of these issues of minimizing harms, based on evidence to date from Colorado and Washington). Establishing a Safe and Responsible Production System As of September 2017, there are 58 licenced producers in Canada, able to sell similar kinds of products to more than 130,000 registered medical cannabis users via mail order. It is clear that both the products that they sell and the regulations they must follow would permit a relatively easy transition from the market in medical cannabis to a market in recreational cannabis. In Colorado, for example, similar products are offered within a single location, but taxed differently (with recreational use subject to a higher rate of tax). As we move forward towards the legalization of recreational cannabis, we appear to have a model in place for a production system – that of the licenced producer --a pre-requisite for any commercial sales, whether via mail order, pharmacies, dispensaries, liquor stores, or any other outlet. Questions have arisen, however, regarding the best methods for ensuring safety of supply, and, similarly, questions have arisen about the lack of inclusiveness of the current model, given costly security requirements for those wishing to become licenced producers. The task of government will be that of allowing a greater number of producers to get their product to market, and simultaneously designing a system of regulation that provides consumers with a product free from pesticides and other contaminants. That is a task which is currently evolving. I note that the Cannabis Act sets out the authority to grant licences in sections 61 and 62. I think it is appropriate that section 61 provides ministerial discretion with respect to conditions to be met by those interested in obtaining licences. I do question, however, the logic of section 62 (7) of the Act, allowing the Minster to refuse to provide a licence to any person who has contravened any provision of the Controlled Drugs and Substances Act or the Food and Drugs Act within the past 10 years. Unless these individuals have been convicted of offences of violence or offences evidencing dishonesty, this restriction seems unnecessary, and risks a continuation of black market cannabis production and distribution. For those who wish to grow their own cannabis that option will also apparently remain, not unlike home-made beer or wine, with products designated for personal use, but not to be sold in a commercial context. The Task Force recommended that adults be able to grow up to four plants in their homes, and this recommendation was supported in Bill C- 45, the Cannabis Act. It is not clear, however, that this option is reasonable or realistic for many multi-family dwellings, and I expect that municipalities will address these concerns with either restrictive or prohibitive zoning regulations. Designing an Appropriate System for Distribution The Task Force set out three possible options: 1) a phased-in approach to distribution, using mail order, which has proven to be relatively effective in the realm of medical cannabis; 2) retail storefronts (a strictly regulated environment for adult recreational users, largely based on the dispensary model currently operating in Vancouver and Victoria, and a number of other Canadian cities); and 3) local choice – allowing 2 provincial and territorial governments to determine the best model for distribution, with the possibility that there could be substantial variation across provinces and territories. The Cannabis Act does not exclude any of these possibilities, giving provinces (and municipalities) the responsibility, beyond a national mail order system from licenced producers (section 62), to set out a system of distribution, and age and purchasing restrictions. A slightly different way of conceptualizing the options for distribution is to note that there are currently essentially three different options under discussion, beyond mail order from licenced producers: distribution through pharmacies, dispensaries (retail outlets), and liquor stores. With respect to the last option, it should be noted that in both Colorado and Washington, marijuana cannot be sold in retail outlets where either tobacco or alcohol are sold. As the Discussion Paper noted of this approach, “The distribution model could also have more direct consequences for health and safety….in recognition of the more serious impairment that results when alcohol and marijuana use are combined, both Washington and Colorado do not allow marijuana to be sold in stores that also sell alcohol”. Mail order access for recreational cannabis will, appropriately, be a critical part of the system of cannabis distribution. Canada is a geographically large country, with many remote or relatively remote communities. And given the likelihood of a choice of licenced producers in every province, and the possibility that individual provinces may not permit any form of retail outlets, mail order sales are key to a Canada-wide provision of access. Mail order also has the advantage of not linking purchase of the drug to travel to a retail location, or having retail locations that might advertently or inadvertently promote problematic use of the drug. I will not say much more about the manner in which cannabis might be distributed, given that this will be a provincial decision. I will, however, express a view in favour of dispensaries as a retail option, a position endorsed by the Task Force. These dispensaries have proliferated in a number of Canadian cities over the past few years, with Vancouver the most prominent example of this phenomenon. In July of 2017 Vancouver has more than 90 dispensaries, ostensibly selling cannabis for medical purposes. In contrast, the city has 71 liquor stores, a surprising difference in numbers, given that 80 per cent of the Canadian adult population uses alcohol and only 10 to 15 per cent report use of cannabis. The line between the recreational use of cannabis and its medical use is sometimes rather murky. When self-described medical users are asked of the benefits of use, they have consistently pointed to relief of pain, reduction of anxiety, and assistance with insomnia as their primary motivations. (Nunberg et al., 2011; Walsh et al, 2013). These motivations may not be markedly different from those underlying a glass or two of wine in the evening, at least in some circumstances. Put differently, cannabis use has both medical and recreational aspects, and even

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