From Toques to Tokes: Two challenges facing nationwide legalization of cannabis in Canada

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Abstract

Background

In 2015, a new Liberal Government came to power in Canada, elected on a platform that included legalization and regulation of cannabis for recreational purposes. Their legislation, based on recommendations from a Federal Task Force on Marijuana Legalization and Regulation, is due in early April 2017.

Methods

This commentary utilizes Canadian Federal policy papers, previous literature, and internal and international agreements to examine two key areas critical to the development of a nationwide regulated market for cannabis in Canada; the need to overcome restrictions to legalizing cannabis in United Nations’ drug control treaties, and the unique challenges that non-medical cannabis creates for navigating interprovincial trade policies in Canada.

Results

Irrespective of UN conventions that appear to prohibit legalization of cannabis the Government is preparing to bring forward legislation as this article goes to print. At the same time significant squabbles impede the selling of even beer and wine inter-provincially in Canada. This paper identifies the challenges facing Canadian legalization efforts, but also shows how the legalization legislation may provide opportunities to engender significant change beyond the simple legalization of a specific drug.

Conclusion

This commentary does not argue for any specific course of action for Canada, but rather explores the nuance of legalization absent from the declaration in the Liberal party platform. The paper argues that Canada’s efforts may hasten the dismantling of the UN drug control structure, and provide renewed opportunities for intern-provincial trade in Canada.

Introduction

On October, 2015 the Liberal Party, led by Justin Trudeau, swept to power with a surprise win in the Canadian federal election. The Liberal party platform comprised a number of progressive policies, including a commitment to legalize cannabis across Canada.1 “To ensure that we keep marijuana out of the hands of children, and the profits out of the hands of criminals, we will legalize, regulate, and restrict access to marijuana.” (Liberal Party, 2015, p. 55). The Liberal Government appointed former Toronto Police Chief Bill Blair, now a Liberal Member of Parliament, to lead the development of a coherent plan for North America’s first nationwide non-medical cannabis market. A Task Force on Marijuana Legalization and Regulation, headed by former Minister of Justice Anne McLellan delivered recommendations to Parliament in December 2016. Given the apparent restrictions to legalizing cannabis in United Nations’ (UN) drug control treaties, and the interprovincial trade and regulatory issues that have plagued Canada since confederation in 1867, setting up a nationwide regulated cannabis market is no easy task. This commentary explores these two issues and examines opportunities to turn challenges into positive outcomes for the legalization process, both domestically and internationally. We provide further insights for Canadian policymakers and an account of the legalization challenges for future states intent on non-medical cannabis legalization and regulation.

Any discussion of national drug law reform must take in to account a state’s international obligations under the UN treaties controlling drugs. These treaties were at the forefront of discussion during the Special Session of the UN General Assembly on the World Drug Problem (UNGASS) in April 2016. During UNGASS, Canada’s Health Minister, Dr. Jane Philpott, addressed the assembly and made clear the Government’s intention to legalize cannabis (CBC, 2016). One of Minister Philpott’s deputies had previously told the Commission on Narcotic Drugs that, “[Canada] will seek to align its objectives for a new marijuana regime with the objectives of the international drug-control framework and the spirit of the conventions.” (Geller, 2016, p. 7). The implication was that Canada intended to move forward with cannabis legalization despite what many would argue are clear prohibitions contained in the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (UN, 1988). These international issues are well known, and while some have cited an inherent, if underappreciated, flexibility within the three major UN drug control treaties (Collins, 2015), others have argued such flexibility is a myth propagated as “legally fallacious—but politically potent” (TNI, 2016, p. 7) by countries dissatisfied with the state of drugs policy regulation as it relates to cannabis.

While many people have chimed in on the validity of cannabis legalization efforts without changes to the UN drug control treaties (Bewley-Taylor and Jelsma, 2012, Caulkins, 2016, Collins, 2017, Graham, 2015, Hoffman and Habibi, 2016), a far less appreciated issue threatens to derail Canadian efforts to legalize cannabis. Historically, trade between the provinces in Canada has required intensive negotiation and internal treaties in order to flow smoothly as each province wields significant power to control and protect its industries. While every US state has its own criminal code (in addition to US Federal criminal laws) Canada has a unified criminal code. The duties of the Federal government in Canada are broadly restricted to issues, including but not limited to national defense, criminal law, banking, foreign affairs, postal duties, aboriginal rights, and fisheries. Canada’s long running inter-provincial trade troubles are perhaps most visible in the burgeoning wine sectors in both Ontario and British Columbia. In both provinces, retail distribution of wine is controlled by government run stores, and in each province it remains difficult to obtain wine from the other, though recent initiatives have made it possible to order wine online between the two provinces. This difficulty springs from Importation of Intoxicating Liquors Act 1985 which largely prevents shipment of alcohol between provinces unless done so by an agency vested by a particular province to sell alcohol. In addition, each Canadian province has different restrictions on the retail distribution of alcohol, and all provinces, except Alberta, rely on a largely monopolistic structure controlled by government-run retail stores.

The external controls and internal conflict present significant hurdles to overcome beyond the more traditional legalization questions of distribution models, minimum age requirements, and concerns over impaired driving. This piece will examine the two issues in greater depth and suggest that addressing each challenge might be an opportunity to engender significant and much needed change.

Section snippets

The internal Canadian conundrum

Internal trade in Canada is marred by overly complex and diverging regulations, and contested policies despite internal agreements (WTO, 2011). Such is the complexity of this component of the legalization question that the current Government’s first discussion paper on the subject omitted any significant discussion of interprovincial variation in distribution models (Government of Canada, 2016b). Even the Task Force report in December 2016 stayed relatively clear of the topic, suggesting that

An internal resolution

The need to maintain the flexibility and power afforded to provinces in the federal system must be balanced with the need to ensure relatively equal access to cannabis for all citizens once it is a legal product. De facto prohibition as the result of some municipalities or provinces blocking local production and distribution would undercut the goal of eliminating the black market, harm interprovincial trade, and potentially set up court challenges. While the AIT proved that provinces and the

Conclusion

In both the issues addressed here, Canada finds itself challenging long held beliefs and policy positions. Internally, protectionist policies and overly complex regulation have stymied the development of interprovincial trade. Policymakers focused on what is best for their province, and their industry, fail to see the benefits of acting upon mutually identified shared interests in order to effectively empower the beneficial aspects of trade. A similar claim might be made for the international

Funding source

This research did not receive any specific grant from funding agencies in the public, commercial, or not-for-profit sectors.

Acknowledgements

None.
Conflict of interest
There are no conflicts of interest to report regarding the paper entitled ‘From Toques to Tokes: Two Challenges Facing Nationwide Legalization of Cannabis in Canada’.

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