This article originally appeared in Queen's Law Reports 2018. Read the entire magazine issue on our alumni publications page.
The legalization of marijuana for recreational use in Canada, expected to take place this year, is a game-changer for lawyers, businesses, citizens and governments. It will have significant implications in many different areas of law, raising challenging new questions and offering exciting opportunities to break new ground for members of the legal profession.
As the first major industrial country to legalize recreational marijuana nation-wide, Canada will be scrutinized as a first mover. It has an opportunity to lead the world in socially responsible legalization and regulation of the production, distribution and consumption of cannabis while protecting public health. For this article, Queen’s Law Reports invited the views of 11 professionals – 10 law alumni and a physician – who have already established their bona fides in the complex specialties attending the regulation, business, and health risks of what will be seen, historically, as a legal, political, and cultural revolution in Canada.
“Canada is already seen as a leading example of a safe, federally regulated industry for medical cannabis,” says Trina Fraser, Law’97 (Com’94), co-managing partner of Brazeau Seller Law in Ottawa and advisor to the cannabis industry on legal and business issues. “Many countries around the world are now looking to Canada because we’re going to be the first G7 country to legalize recreational consumption of cannabis on a federal level. It’s important for us to get it right.”
As early leaders in the industry, Canadian entrepreneurs and businesses, and their legal advisors, also have a rare international edge in realizing the economic development possibilities in an emerging, growing global business.
Politics of prohibition roll-back
The legalization of cannabis is long overdue. That’s how Nathaniel Erskine-Smith, Law’10, MP (Liberal) for Toronto Beaches-East York, sees the issue through a legal, political and personal lens. “Prohibition has been a complete failure. Almost half of Canadians report using cannabis in their lifetime, and we don’t want to treat them as criminals,” he says.
Experience with other controlled substances shows there’s a better way than prohibition to limit or reduce the potentially harmful effects of cannabis. “A more successful approach is through public health regulation and education,” he says, noting that restricting commercial advertising, for example, has been effective in reducing harmful effects from tobacco use.
Erskine-Smith sponsored an e-petition urging the Canadian government to allow citizens to grow their own recreational cannabis at home when legalization is enacted, just as alcohol users have the right to home-produce wine and beer. The government’s proposed legislation currently permits up to four plants per household.
A key goal of legalization and regulation from a government and legal perspective is to shrink or eliminate the booming, illegal black market in production, distribution and sales and the attendant loss of tax revenue. “Most Canadian users will want to seek out legal pot, where there is quality control,” he says. “I expect to see gains in undercutting the black market after legalization; the more diversity in the legal marketplace, the better it will be for consumers.”
Constitution allows provincial diversity
Marijuana legalization is a good example of how Canada’s Constitution can be seen in action. While the federal government is responsible for legalization, it’s the provinces that have the power to regulate the legalized industry within their jurisdictions – the sale, distribution and marketing of cannabis, and who will be able to buy it.
“Part of our understanding of federalism is that the provinces are different and the best policy in one province may not be the best in another,” says Law’s Associate Dean (Academic) Cherie Metcalf, Law’02, a constitutional law scholar. “Their choices reflect their distinct concerns and priorities.” The provinces also have flexibility to experiment with different regulatory approaches. “Since the provinces can take and are taking somewhat diverse approaches to regulating the production and sale of cannabis, we’ll be able to see over time which ones work best.”
This constitutional framework lets the provinces learn from each other’s experiences and evolve their models over time, while the country showcases various regulatory approaches to the world. Metcalf sums it up this way: “We’ll lead the way in legalizing cannabis nationally, and the provinces will provide diverse examples of how it can be done. We can be a leader in showing which approaches are more, or less, successful.”
Metcalf is confident that a long history of federalism in action will help to make the legalization work. “Our federal system provides a model for successful ways of managing this kind of transition from an absolute prohibition to a legally regulated industry,” she says. “The biggest challenge is the short time-frame for the provinces to develop and implement complex regulations. Many provinces are piggybacking on their existing ways of dealing with alcohol and tobacco, which is the easiest approach.”
Regulatory licensing issues
Determining who will be eligible or excluded from applying and being approved for a licence to produce, distribute or sell cannabis for recreational use is one of the most important and challenging regulatory and commercial issues in this emerging growth industry. Trina Fraser, a commercial lawyer and experienced medical cannabis practitioner, testified on the issues of amnesty and issuing licences for previously illicit cannabis market participants before the House of Commons Standing Committee on Health in September 2017.
Fraser argued that tolerance for some level of prior illicit market participation when granting security clearance for licence applicants should go beyond simple possession or small-scale cultivation to include trafficking as well. “Otherwise, everyone involved in the operation (and supply) of compassion clubs and dispensaries will still be excluded,” she said. “This would significantly impair the ability to achieve the government’s stated objectives of reducing both the illicit market and burdens on the criminal justice system.”
According to Fraser, a Canadian framework for legalization that allows for the inclusion of prior market participants who aren’t a threat to public health and safety advances the development of a healthy, thriving, legal cannabis industry.
“The illicit market in Canada is entrenched and pervasive,” she points out. “If the objective is to minimize the black market, you can’t turn a blind eye to the people who were involved in it, and it’s naïve to think people who operated in the black market will stop. Why don’t we bring those who aren’t a threat to public safety and health into the fold of the legalized industry, subject to licensing and oversight? The legal industry will benefit from their breadth of knowledge, they’ll pay tax on their income, and sales and excise taxes will be collected on the products they sell.” Fraser emphasizes that those convicted of offences that involved young persons, guns, violence, or controlled substances other than cannabis should be excluded. So should those with established connections to organized crime.
Matt Maurer, Law’06, Chair of Minden Gross LLP’s Cannabis Law Group in Toronto, provides business and regulatory advice to a wide range of cannabis stakeholders, including licensed producers, producer applicants, owners of businesses that provide ancillary services, and foreign businesses looking to enter the Canadian market. Like Fraser, he supports inclusive and broad participation in the commercial marketplace. “Diversity of production there is a good thing,” he says. “There should be a place for craft and smaller growers, not just large producers that build big factories. It’s important to allow more people to participate in the industry, and there should be a place for those with prior experience, depending on the nature of their involvement in the grey or black market.”
Approach to public health risks
The legalization of cannabis is grounded in the belief and research evidence that a public health approach to reducing its use and harmful effects will be more effective than criminalization has been. Public education campaigns about responsible use and potential health risks, targeted at the general population, but especially at youth, parents and vulnerable populations, are a key part of the government’s rollout strategy. Provincial regulations governing production, sale and distribution, including restrictions on purchasers’ age, packaging, promotion, advertising and marketing, also aim to minimize harms of use.
Despite this proactive approach, Dr. Chris Simpson, Acting Dean, Queen’s Faculty of Health Sciences, and recently President of the Canadian Medical Association (2014-15), is concerned that the genuine health risks associated with recreational marijuana use are not well understood by the public and are minimized or dismissed by some stakeholders in the cannabis sector who play up its potential healing benefits and make unsubstantiated health claims.
“The public health risks of marijuana have been underplayed,” he says, “and there is this mythology about health benefits from its potential therapeutic use, for which there is little evidence except for a very limited number of conditions, including some forms of seizure disorders and some chronic cancer pain.”
The danger he sees is that this could potentially lead to a normalization of cannabis, wider recreational use and greater overall harm to Canadians’ health. “Although legalization is the best way to minimize harm here, as it is with alcohol and tobacco, this does not mean we’re selling a healthy product or that marijuana is without serious health risks,” he says. “We should try to build into the legislation regulatory measures that help to change the culture in a way that doesn’t normalize marijuana use.”
There are several serious health risks associated with regular cannabis use, especially for young people, that he believes should be highlighted in public health education and campaigns. “We do know that inhaling marijuana smoke will increase the odds of lung disease and heart disease for any regular user,” he says. “In people under 25, regular marijuana use is associated with changes in cognitive function, such as IQ decline. Habitual use also increases the risk of developing psychotic episodes in people under 25, possibly for those with a genetic predisposition who might not be aware of their risk.”
Another health problem physicians in hospital emergency departments see regularly is “cyclic vomiting syndrome” frequently developed by habitual users. “They risk dehydration, heart arrhythmia and dangerous electrolyte imbalances, and the only relief is a hot shower.”
Simpson recommends governments and regulatory agencies be proactive in using the kinds of public health approaches proven effective in reducing tobacco smoking, including unattractive packaging and labels with prominent health warnings. “We’ve reduced the national smoking rate from about 45 per cent to 17 per cent with regulatory measures,” he points out. “Health Canada has a major role to play in very strict regulation of cannabis marketing, advertising, labelling and packaging. Distributors and retailers should not be able to make health claims that aren’t true.
“It would also be good for all the tax revenues from cannabis to be directed specifically towards public health spending to combat the negative health effects from cannabis use.”
Ann Tierney, Law'89, Queen’s Vice-Provost and Dean of Student Affairs, adds that universities and colleges also have particular concerns for their communities. “Queen’s is connecting and collaborating with colleagues across the sector,” she says, “and the legalization of cannabis is the subject of discussion at all post-secondary institutions.”
Queen’s approach has been to set up a campus-wide committee led by Environmental Health and Safety to look at policies, protocols, practices, supports and resources – “not just for students, but for the whole campus community,” she says. This committee plans to have a framework in place by fall.
“From a Student Affairs perspective, we are looking at education and a harm-reduction approach to legalized cannabis on campus, much like our efforts and strategies related to alcohol,” Tierney says, noting that many first-year students are under 19 when they arrive, and most of them live on campus in Queen’s residences. “But we will also be considering protocols for our off-campus, university-owned housing,” she explains. “There will be many conversations with stakeholders in the coming months.”
Cannabis practice a ‘field of dreams’
For cannabis law practitioners, the upcoming legalization and regulation opens the door to a dynamic new field of practice where their legal and business advisory services are now and will be in high demand.
“This is a once-to-twice-a-generation opportunity for lawyers,” says James Munro, Law’04, co-founder of the Cannabis Practice Group at McMillan LLP, Vancouver. “To be a first mover in any area of law is exciting because you’re shaping an industry. Just four years of experience in the cannabis sector makes you very experienced, which is comical, but also true.”
Munro sees Vancouver having a special connection to legalization because cannabis has been a central part of the city’s culture for so long. “Lawyers and other professionals here wanted to get involved in the cannabis sector early on. B.C. is a unique jurisdiction where dispensaries have been operating for years. Obviously, they were illegal, but their staffs became experts. Why would you not take advantage of their expertise?” he asks, noting that the B.C. government has decided that having operated an illegal dispensary will not, on its own, exclude an applicant from being considered for a licence.
Vancouver is a resource city, and Munro has drawn on his experience serving clients in the mining sector to advise Canadian licensed producers in the cannabis sector on innovative financing methods, such as streaming transactions in which a licensed producer (the streamer) provides an upfront deposit to a Canadian start-up cannabis company in exchange for the right to purchase future deliveries of cannabis at a pre-determined price.
Contrary to Ontario’s decision to monopoly-market pot the way it does liquor, Munro views the B.C. model of public and private retailers as best suited to encouraging a thriving legalized industry. “Monopolies make people lazy. A hybrid retail model encourages competition, which generally is good for consumers.” He believes Canada has an opportunity to lead not only by setting high standards in legalizing and regulating a new industry, but also in realizing the economic benefits of establishing Canadian cannabis as a global brand leader. “Brand recognition is going to be a key feature for success internationally,” he says. “France is known for its wines and Scotland for its scotch. To stay in front in the cannabis sector, we need to bake it into our DNA that Canada will be a leader in product safety and quality.”
Bold initiative to benefit First Nations
David Sharpe, Law’95, CEO of Toronto-based Bridging Finance Inc., has a bold plan to help Canada’s First Nations take advantage of opportunities in the high-growth cannabis sector. Bridging Finance has teamed up with Denver-based MJardin Group, the world’s largest producer of legal cannabis, to establish an infrastructure fund to provide First Nations with access to capital for business ventures in the production, marketing and distribution of marijuana when it’s legalized in Canada.
Sharpe, a Mohawk from the Bay of Quinte First Nation near Deseronto, Ontario, has built a successful career as a business lawyer and entrepreneur. He says there is a “tremendous opportunity for First Nations economic development in the cannabis sector. Through these partnerships, First Nations will have equity ownership of cannabis production and retail facilities. This is about controlling their own destiny and selling a product with a strong medicinal benefit. The goal is to create good jobs and a sustainable industry that will be there for generations to come.”
Bridging Finance provides non-distressed private debt financing to small- and medium-sized businesses across North America and has become the “go to” source of capital for First Nations economic development through projects in the fishing, housing and infrastructure sectors. “The cannabis opportunity is very appealing to a lot of First Nations chiefs in Canada,” he says. “The First Nations will drive the enterprise and determine the ideal locations within their territories for cannabis production and retail facilities. MJardin, with its expertise in cultivation and production, will train them in all facets of the business. We bring a culturally sensitive approach to our projects with First Nations and the capital to make the proposed cannabis business idea real.”
Production facilities are already planned for First Nations communities in Manitoba and Ontario, and similar agreements have been signed in several other provinces. “The investment community is very excited about our First Nations cannabis offering; response has been overwhelmingly positive. We expect to raise about $300 million to $500 million in the infrastructure fund and plan to invest about $100 million for production within the next nine months,” he says.
More broadly, Sharpe sees participation and ownership in the cannabis business providing greater equality of opportunity for First Nations communities, especially their children. “When you create economic development and more jobs, communities can fund good housing, clean water, better schools and programming, and more kids will go to university,” he says. “These are all things that other children in Canada already benefit from.”
Coaxing tax compliance
One of the key policy goals of the upcoming legislation is to ensure that producers, distributors and sellers in Canada become tax-compliant. According to Statistics Canada, the country’s cannabis black market was worth as much as $6.2 billion in 2015. “Most of the revenue generated in the black market is untaxed,” says Professor Art Cockfield, Law’93, a tax law scholar and policy consultant. “The big problem is that Canada’s licensed medical marijuana companies, who do pay tax, currently produce only about five per cent of the marijuana consumed by Canadians.”
The challenge for all levels of government is to adopt regulatory and tax policy measures that will encourage and result in Canadian consumers buying most, or virtually all, of their cannabis from licensed, legal sources that pay taxes. Cockfield supports the recommendation, in a report by the Parliamentary Budget Officer, that the government should reject “sin taxes” on marijuana, like those levied on alcohol and cigarettes, because they encourage a black market by pushing prices too high. He maintains legalized recreational pot sales should at first be subjected only to the HST, which is 13 per cent in Ontario. Instead, under the current federal government proposal, there will be HST plus an additional excise tax of $1 per gram of marijuana or 10 per cent of the final retail price, whichever is higher.
But that’s only a first step towards boosting tax compliance and shrinking the black market. Cockfield says the provincial regulatory schemes should allow for the development of a vibrant and innovative market, a diverse mix of large and small participants who can offer consumers an abundant supply and a wide range of choices at competitive prices.
“I support efforts in the western provinces for fair regulation and flexibility in the marketplace” he says. “If Health Canada or provincial regulations are too strict and throw up barriers to entry for new businesses with previous dispensary experience before legalization, that will benefit black market pot sellers and big pot producers, but not smaller players or consumers.”
Criminal defence concerns
Sean Robichaud, Law’04 (Artsci’01), founder of Robichaud’s Criminal Defence Litigation in Toronto, is concerned that legalization and regulation may have the unintended effect of enhancing criminalization, particularly with respect to the application and enforcement of proposed impaired driving laws. “I’ve gone from a yes in favour of legalizing marijuana to a trepidatious no,” he says.
As an example, he cites proposals in legislation that would extend police powers to demand roadside testing even without the need for the present minimal standard of “reasonable suspicion” for the presence or use of intoxicants while in the care and control of a motor vehicle. He and many others in the criminal defence community are expressing concerns that constitutional challenges against the proposed legislation will inevitably follow as a result of possible violations of people’s right to protection from “unreasonable search and seizure.” More problematic, he argues, is that the tests proposed (such as saliva testing and “drug recognition evaluation” assessments) are highly unreliable in actually proving the intended purpose of the proposed changes, namely: impairment while operating a motor vehicle. “The consequences of this may place many innocent Canadians before the justice system as a result of highly subjective and unreliable evidence.”
Robichaud is equally concerned that marijuana can stay in the system for a long time, and users metabolize the drug differently, making it difficult to measure impairment reliably. “Before we hold people criminally responsible, we ought to have a system in place that has an objective measure of reliability in establishing a connection between presence of drug in a person’s system, and actual impairment,” he argues. “Otherwise, the legislation is both incompatible, unproductive, and grossly unfair in a context of ‘legalization’.”
James Munro agrees that a solution to this problem is urgently needed. “Cannabis impairment is less understood than alcohol impairment. There’s not a perfect test, which is a challenge on the road and in the workplace. Someone will figure out how to judge cannabis impairment objectively, but they haven’t cracked the code yet,” he says.
Robichaud is also concerned about increased penalties for anyone selling or giving minors access to cannabis, which could result in extreme and disproportionate consequences for certain violations that were not enforced or in effect before legalization. “The legal definition of ‘trafficking’ is very broad and includes not just selling but offering, an intent to offer, or sharing, whether or not money is provided. Anyone who is party to this offence by act or omission can be held accountable as well.”
He sees potential here for a very broad application of this new law to people who are unaware of the risks of simply being around underage people who are consuming marijuana. He uses the example of an 18-year-old who has a party at his house (in a province where 18 is ‘legal’) and a joint is passed around. “Though all the 18-year-olds are presumably smoking a joint legally, as soon as a 17-year-old guest takes a hit, they are all now party to an offence with the potential for very severe and grossly disproportionate penalties – up to 14 years in jail,” he says.
“A parent who provides the house where the party takes place and who knowingly lets this happen may be considered a party to the offence by aiding and abetting it,” he adds. “They may also face the risk of their property being forfeited under the Civil Remedies Act, as it is being used in the commission of this new serious criminality.”
Challenges in safety-sensitive workplaces
Denis Mahoney, Law’93, a labour and employment law partner at McInnes Cooper in St. John’s, Newfoundland-Labrador, and an Advisory Committee member of the Queen’s Centre for Law in the Contemporary Workplace, sees significant challenges for employers in safety-sensitive industries arising out of marijuana legalization. Employers have a duty to ensure a safe workplace, but testing for cannabis impairment and fitness for work is technologically complex and must be balanced with employee accommodation and privacy rights.
“It’s difficult even for an experienced physician to determine impairment,” Mahoney says, adding that he’s disappointed that the Task Force on Cannabis Legalization and Regulation didn’t include an occupational health and safety perspective. He advises employers to develop clear policies about what’s acceptable and not acceptable in terms of cannabis use inside and outside their workplace, “but general recreational use of marijuana outside the workplace on a person’s own time should not be a concern with respect to the person’s fitness to work for non- safety sensitive positions.”
It’s also in employees’ interests, he maintains, that appropriate company policies are in place to address and protect against cannabis impairment at work. “Workers have fought hard to improve workplace health and safety,” he adds. “I’m advocating for measures to avoid loss of life or serious injury resulting from cannabis impairment, particularly with respect to employees in safety-sensitive positions.”
MP Nathaniel Erskine-Smith, on the other hand, believes Canadian workplaces have had time to adjust since the legalization of medical marijuana and that legalized recreational use shouldn’t present major new problems. He applies a simple, common-sense rule: “We don’t tolerate people showing up to work drunk and we shouldn’t tolerate people showing up to work high,” he says.
Canadian lawyers on a global stage
All in all, Canada’s broad-scale legalization of marijuana is an exciting new development that touches many different legal fields and facets. Because Canada is the first G7 country to legalize cannabis at the national level, this legislation offers lawyers practising here a rare opportunity to lead, learn, innovate and develop specialized expertise, skills and advisory services that clients will need and demand locally, provincially, across Canada and eventually around the world.
It’s an opportunity for these lawyers to shape the future of a burgeoning national and global growth industry and to help replace an outdated, failed prohibition model with a public health approach aimed at lessening harm from use, reducing a large illicit market, retrieving billions in hidden tax revenue, and easing an unnecessary burden on the criminal justice system as well.
“The legalization of cannabis will be a worldwide phenomenon,” says James Munro. “The world is watching what Canada does, and, if we do it well, other countries will follow quickly. We need to show we can roll out a system of legislation that works in Canada and use that experience to help roll it into use against a criminal black market throughout the world.”
BY MARK WITTEN