Canada is set to become the first country in the G7 to legalise cannabis for recreational use. As expected, the Trudeau government announced the plan before Easter and the new Cannabis Bill (C-45) largely reflected the recommendations of the taskforce report from last November.
A number of elements of the bill tabled on 13 April were being finalised when Volteface met with government officials in Ottawa in February, including the minimum age, how to address drug driving risks, and whether a legal regime would permit home-grow. The legislation clarifies those points and provides further detail on how the new regime – expected to be in place by July next year – will work. The new 131-page bill can be read in full here but the important elements include –
- The minimum age for cannabis consumption or purchase will be 18 – the government deciding to err towards capturing more users with a lower age, despite concern from health professionals about the impact on adolescent brain development (the Canadian Medical Association had urged a minimum age of 21);
- A new restricted recreational regime will allow possession of up to 30 grams, and provision for home-grow of up to 4 plants per residence not exceeding 1 metre in height – this makes small amounts for personal use and social sharing possible, but law enforcement may be disappointed with the home-grow provision, which police believe will be hard to enforce.
- All producers will be federally licensed, and no export (or import) across Canada’s borders will be permitted – this will build on the current medical system and allow the government to licence and inspect for product purity and production quality, and containment in the domestic market will ease friction with the United States.
- Distribution and retail regulations will be set by provinces – this will give provincial and territorial governments a major role in deciding where and how cannabis can be sold and consumed.
- There will be restrictions on where cannabis can be smoked, similar to tobacco, and rules governing its promotion and marketing, with measures to protect young people with child-proof packaging, advertising rules and label requirements – this will mean that cannabis won’t be on grocery store shelves or advertised on TV and Canadians won’t be allowed to smoke a joint on the bus.
- Edibles have been excluded for now, pending new regulations – the government clearly listened to the medical concerns around dosage and wants to conduct further studies before extending legalisation to edible products.
- The bill will amend the Criminal Code to introduce new penalties (and stricter sanctions) for the sale of cannabis to under-18s, and there will be a new regime for impaired driving in a parallel bill. Penalties for individuals breaching the personal possession limits will be on a sliding scale, from ticketing up to jail time – these measures are designed to limit any spread of the legal cannabis supply into the school age population, with heavy 14-year maximum prison sentences proposed (and already criticised as draconian by some activists).
- An impaired driving standard will be set, but no impairment rules for workplaces – the standard itself will require additional training for police and new roadside drug testing equipment (which is not yet widely available).
- The recreational market will co-exist with the medical cannabis system, and be reviewed after 5 years – the government wants both to run in parallel for now but could potentially decide to merge the two systems for licensing in due course depending on how the recreational market develops.
- Government will fund a “broad public education campaign” with a (pretty modest) budget of $9.6M over five years and has committed to monitor the health and economic impacts – this spend would be in addition to anything that provinces or municipalities choose to fund on promoting safe and responsible cannabis use.
On the day the bill was launched, three of Trudeau’s Cabinet ministers (health, justice and public safety) along with Bill Blair MP, the former Toronto police chief, joined forces to set out the plans, reflecting the cross-government agenda, and further details are expected later in the summer. Despite how radical this reform appears to British audiences, the new law led to no major political row and much of the media coverage was short-lived, with Canadians appearing to have got accustomed to the idea, or at least not feeling concerned by the prospect. In other media around the new announcement, the PM himself appeared on a special Vice news webcast to discuss the law change here. The audience raised issues beyond cannabis and one questioner put Trudeau on the spot about the opiods crisis which continues to kill record numbers in Canada this year, and an issue causing much more widespread voter concern than how to legalise pot.
The framework for cannabis legalisation is now clear but how it is implemented is yet to be decided. As a federal system, the new law is the responsibility of Ottawa, but how it is put into effect is largely up to provincial governments who will decide how cannabis is distributed and retailed in their province. Each province will approach it differently and some, like New Brunswick, have decided to involve their legislature early by creating a committee to advise on the regulatory approach, while Alberta intends to do a public consultation this summer.
Some key decisions remain outstanding. Firstly, the fundamental pricing mechanism is still undisclosed. The Ministry of Finance needs to outline pricing and taxation plans and essentially the task force explored both a taxation and a minimum pricing model linked to strength. Either model will need to offer consumers an affordable, quality product that can compete with (and rapidly erode) the current black market, or else risk leaving the market of cheaper, poor quality cannabis in criminal hands. A new report, released on 20th April by a Toronto-based think-tank – the CD Howe Institute – set out why price will be a critical factor.
Secondly, each province must legislate to bring the new regime into effect, and they have the power to raise the minimum age limit (but not lower it), to lower the personal possession limit, or further curtail personal cultivation. They can also decide zoning requirements for cannabis businesses, and set rules regarding consumption in cafes or other public places. In essence, the provinces – responding to their local context and factoring in public opinion and the economic situation – have the means to legislate to create either a permissive or a restrictive model, within the broad framework set by the Canadian government. Some parts of the country – like Ontario and British Columbia – are likely to see the largest economic benefits and with more popular support locally for legalisation, may pursue a more liberal licensing regime. Other more conservative provinces (like Saskatchewan) might hold back even after legalisation next year and restrict access to cannabis with a higher minimum age and home-grow restrictions.
Thirdly, how the law is implemented locally will determine how Canadians can buy their cannabis. In the official Q&A on the bill, the government explicitly states that Canadians will be able to legally acquire cannabis online, via federally licensed suppliers, if they live in a province that makes accessing retail cannabis difficult. It also indicates that the federal law would not prohibit vertical integration (buying direct from producers’ own retailers), though provinces may still prevent this, as applies in the pharmaceutical sector.
Much of the politics around legalisation is still unclear. It hasn’t been confirmed which committee will review the Cannabis Act, and until the Bill gets debated, we cannot know what if any delay it will encounter in the Senate. The Liberals have a solid majority in the Commons so the legislation is likely to pass, but opposition MPs may still pursue amendments or seek to slow its passage.
The Conservative leadership race continues, and until a new federal Tory leader is in place, the party’s policy platform is in flux, so we aren’t clear on what their position on cannabis legalization will be. The Globe reported the views of the main contenders, and only one has so far pledged to repeal it, citing concerns about adolescent health.
What seems clear is that the contours of the debate will be around implementation – not the rationale for legalization. As even senior police officers have come to realise, that ship has sailed. But the implementation itself is far from simple, and legalisation opens up other debates. Issues already raised include concern about what the new law means for enforcement in the period leading up to July 2018, disagreement around the appropriate age limit, and the legacy of the old law for individuals with cannabis convictions. Expect to see other debates emerge around branding restrictions and where cannabis can be sold.
The case for pardoning individuals with cannabis convictions or expunging their records has been given new urgency by the announcement and is bound to build momentum. The Government is holding to the line that the law is the law until it changes but the ongoing criminalisation of people for using cannabis now sits uncomfortably with the official policy to legalise it by next summer, and some national newspapers have urged a transitional period of decriminalisation. In practice, the imminent legalisation may have an impact on enforcement and diminish the appetite of prosecutors to pursue such cases.
The local political dimension will be important in the coming months as provinces gear up for their role in legalisation. In the upcoming provincial election on 9th May in British Columbia, the party leaders have not been drawn on the issue, even though it is provinces – not cities or national government – that will decide how cannabis is sold. In the recent BC election debate, the sitting Liberal Premier, Christy Clark, made a passing reference to the law change by indicating that she favoured a higher age limit of 19 – in line with alcohol – and then accusing John Horgan, her NDP opponent, of wanting cannabis sold alongside alcohol in government-licensed liquor stores.
This may be the front for the political fight over cannabis here, with Liberals wanting cannabis retailed via online or pharmacy sales only, and other parties favouring the existing distribution and retail system used for alcohol. Ironically, the government-controlled model might also be favoured by Conservatives in other provinces. The NDP opposition party have suggested that smaller, craft producers should be encouraged in place of big corporate cannabis players already establishing themselves in this nascent industry.
Some in the sector have started to agitate for a very liberal model here in BC along the lines of Colorado (including unrestricted advertising), to help promote “BC Bud” and compete with Ontario – the province with the highest concentration of licensed producers (24 out of the current 42). And there is a vocal constituency pushing for full branding rights for cannabis products to inform consumers and further undermine the black market, set against the health lobby that favours plain packaging and limited point-of-sale marketing.
A new opinion poll, released after the government’s announcement, showed majority public backing for the legislation – with 63 per cent agreeing with it, and young adults (18-34), and voters in BC, being the strongest supporters. However Canadians are not convinced the bill will succeed in restricting access for young people – the Government’s stated policy aim – and a majority think the minimum age of 18 is too low. This polling is the first to test public attitudes to elements of the bill, and finds that certain elements are not popular – with some scepticism about allowing personal cultivation, or mail order cannabis. The previous 2016 poll by Angus Reid found a 9-point shift in favour of legalisation since similar polling in 2014, showing that Trudeau’s policy, and now an actual piece of federal legislation, is largely going with the tide.
Blair Gibbs is a former UK government official who served as an advisor to the former Mayor of London Boris Johnson and the Justice Secretary Michael Gove. He is advising VolteFace on criminal justice policy and developments in Canada.