Tentative steps toward decriminalizing marijuana a buzzkill

Come July 2018, Canadians should be able to light up a joint free from worry that they could be convicted of a criminal offence. In reality, it may be a few more years until most people can find an authorized dealer to supply them with legally grown recreational-use marijuana.

Karen Busby

Come July 2018, Canadians should be able to light up a joint free from worry that they could be convicted of a criminal offence. In reality, it may be a few more years until most people can find an authorized dealer to supply them with legally grown recreational-use marijuana. With 70 per cent of Canadians favouring decriminalization, liberalizing access to marijuana has been on the political horizon for years. So why aren’t we better prepared?

Part of the answer lies in the objectives of so-called decriminalization. Are lawmakers mainly concerned about creating conditions under which marijuana consumption is barely tolerated, still somewhat clandestine and carefully policed? Is it most important to ensure that participants do not harm themselves or others, minors are not involved and the black market is undercut? Or do lawmakers want to create conditions for the establishment and flourishing of a commercial industry that, like the liquor industry, celebrates a cornucopia of options while providing governments with a new revenue source?

The primary and almost exclusive objective of the proposed federal Cannabis Act, currently making its way through the legislative process, is behind-closed-doors consumption and continued policing. Its provisions are intended to prevent young people from accessing marijuana, protect public health and safety by establishing strict product safety and quality requirements and shut down the black market for marijuana to undermine other related criminal activity.

The new federal law will permit adults to home-grow or possess small quantities of marijuana and continue to permit heavily regulated commercial production using the federal licensing regimes already established for medical marijuana. Marijuana marketing will also be highly regulated. Don’t expect to see advertisements contrasting the “earthy, sweet coffee flavours” of one marijuana strain with the “strong, euphoric mental shift” induced by another.

While the federal government acknowledges that licit commercial production will have to expand significantly to meet non-medical demand, the act and related regulations impede development of the marijuana industry by imposing capital-intensive and bureaucratically onerous licensing conditions on producers. The absence of enough legally produced and affordable marijuana to meet recreational demand will simply ensure that the black market will, as always, fill the unmet needs.

Some of the more than 120 witnesses who submitted briefs this summer to the parliamentary committee reviewing the proposed legislation suggested it could be more consumer and industry friendly.

For example, marijuana must be grown indoors in greenhouses (called “vaults” in the regulations) with high security designed to reduce unauthorized harvesting or off-book sales, ensure worker safety and facilitate quality monitoring. Marijuana could be grown outdoors in a way that is much safer for workers and more environmentally friendly. Indeed, Canada already is a leading producer of field-grown hemp seed, which is nothing more than a strain of cannabis with the psychoactive compounds bred out. The parliamentary committee heard that “there is no reason for outdoor cultivation to be any less secure than indoor cultivation. Washington State has had regulations in effect governing security measures for indoor and outdoor cannabis cultivation since 2013.” However, the committee, which reported in October, ignored this advice.

Perhaps one reason the proposed federal law is so narrowly focused is to ensure it is a valid exercise of the federal criminal law power. The proposed law seeks to achieve typical criminal purposes (protect health and safety and prevent crime), by prohibiting certain activities (growing, marketing and selling) unless these activities are conducted in very specific ways. Politicians and their advisers do not seem to have contemplated either a more comprehensive federal approach, relying on either its inter-provincial trade power or the national dimension branch of the “peace, order and good government” power, or a more co-operative federal-provincial approach.

The Cannabis Act contemplates a minor role for provinces: the regulation of retail sales of “cannabis that has been produced by a person that is authorized under this Act.” Many provinces have not yet made a real effort to sort out even a basic approach to retail sales. Instead, provinces are still asserting that decriminalization is a wrong-headed policy. As provinces cannot pass legislation that will “frustrate the purpose” of federal law or effectively re-enact repealed federal criminal laws, there is not much they can do to prevent the federal government from going ahead.

The provinces could have taken an altogether different approach by demanding that the federal government work with them to maximize opportunities to develop a new industry while also pursuing health, safety and crime prevention goals. This course would have offered different visions for regulating the marijuana industry. As University of Denver law professor Sam Kamin advised the parliamentary committee, “The more different and innovative approaches the provinces take — from distributing cannabis themselves, to regulating and taxing it, to prohibiting distribution entirely — the more we will learn about the impact of regulatory policy on important outcome metrics.”

Like liquor and tobacco laws, the regulation of marijuana will always be a work in progress. But it’s too bad the initial approach taken by governments in Canada is such a buzzkill.

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