Deciding where federal & provincial authority lies in regard to legalization of commercial & personal production, age restrictions and taxes will take time
Marijuana Legalization. Like making great wine, braising a perfect pork shoulder, or convincing your mother that leaving a law firm to run a marijuana company is a good idea: marijuana legalization will take time. It may even take a long time. But like good wine, great food and living your dreams, the time and energy expended is well worth it when it’s time to enjoy the end result.
With the news following the Federal election, some believe that legalization and regulated sales of cannabis to adult recreational users is just around the corner. While the excitement is great, there are three major challenges that must be overcome:
(1) Who will regulate the adult use marketplace?
At the risk of boring you to death, a quick primer on Canadian constitutional law is needed. When Canada was born, constitutional powers were divided between those bestowed on the federal government in section 91 of the Constitution and the provincial powers set out in section 92. Generally, the federal government control issues of national scope: militaries, import/export and the criminal law; and the provinces get everything else including local law enforcement, regulating cities and towns, controlling the roadways, and anything considered “local or private in the province”.
To date, marijuana has been regulated as a criminal matter. Grow it — jail. Sell it — jail. Possess it — jail. Criminal Prohibitions have only been subject to limited carve-outs, particularly surrounding possession, production and sale in regards to medical marijuana. This has been an effective decriminalization for certain individuals: medical patients and their providers. For medical marijuana patients and their suppliers, certain activities involving marijuana are legal, but for everyone else – Jail.
This creates a Constitutional question well suited for a law school exam: If the criminal law is not being used, then who gets to write the rules on marijuana? Where does the constitutional power to regulate marijuana lie? There is a strong argument that, like liquor and securities regulation, the power falls to the provinces as a “local or private” matter. While this may be a good thing, allowing for nuanced laws to meet the needs of each province and territory, that also means that the federal government will need to find support for its policies amongst the various provincial and territorial governments. Something that has never been a speedy process in our history. In the alternative, the federal government may try to move unilaterally, but such a move may not be constitutionally sound.
(2) What do we do with our international commitments?
A second challenge will be what to do with our international commitments, such as those found in the Single Convention on Narcotic Drugs of 1961, the Convention of Psychotropic Drugs of 1971 and the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. In essence, these treaties require Canada to fight a war on drugs, including marijuana. To legalize would likely require a change to our commitments: either through amendments or withdrawing from our obligations.
A related challenge will be ensuring our trade and tourism partners do not treat Canada, its people and its exports negatively as a result of marijuana legalization. While I certainly believe the world’s views of marijuana are improving daily, we are a long way off from universal acceptance.
While both of these can certainly be overcome, again it will take time.
(3) The devil is always in the details
Perhaps the biggest challenge will be in the details. How and where should marijuana be produced? Should limited home production be permitted? Who should be able to sell it? Will there be storefronts? How old do you need to be to buy it? How much tax will we pay?
The foregoing is just a small subset of the numerous issues that will need to be addressed for a comprehensive regulatory scheme around marijuana for adult recreational use. To get it right will take time, particularly when it involves the support of the provincial and territorial governments. While I believe our new government does want modernize our marijuana laws, doing so will be a challenge — one I hope we don’t shy away from.
Like many of the finer things in life, if you want to do something right it is going to take time. I believe the same is true for marijuana legalization. Whether you are a future entrepreneur, consumer or stakeholder, the benefits to be gained from a methodical, well-reasoned path to legalization will outweigh any delays. There is a reason wine is aged, pork is cooked slow and cannabis needs to be properly cured and I’ve been working for the past year to convince my mother I didn’t waste an entire decade in school: the end result is well worth the time invested.
- John Fowler