Reefer regulation madness

By: on January 27, 2018 |

Canada’s Liberal government has earned heavy criticism for neglecting or abandoning numerous campaign promises, but this year they are poised to deliver on a big one – the legalization of cannabis. On or about July 1, nearly a century after suffragette Emily Murphy badgered Parliament into making pot illegal, prohibition is set to finally end. Before you celebrate, or lament, this historic event, however, consider this: the welter of provincial laws designed to regulate the production, sale, storage, and consumption of cannabis suggests that when the stuff is technically legal, there will in fact be more ways than ever for Canadians to run afoul of the law.

This should not come as much of a surprise – not only because this intoxicating herb was prohibited for so long and still is across most of the world – but because this is exactly what provinces did, and still do, in tightly regulating the sale and use of alcohol almost a century after the end of its prohibition. In fact, provincial governments are modelling their new cannabis rules on those that have been in place for decades to control alcohol.

For example, despite warnings from medical experts that cannabis use could harm brain development until people are well into their twenties, all provinces are matching the legal age for pot use at the 18 or 19 they use for alcohol except Manitoba, which is going with 19 for cannabis and leaving alcohol at 18. Likewise, all provinces intend to control the wholesaling of cannabis, just as they do alcohol.  And most will have a large hand, if not a monopoly, in the retailing of it, as they do with alcohol.

One exception is Alberta, which sold off its government liquor stores 20 years ago and now has ten times more private retailers. There all cannabis stores will be privately run and there will be no cap on licences (although municipalities may set location limits). The Newfoundland, Manitoba, and Saskatchewan governments have also said they have no intention of being in the retail business, although Saskatchewan has capped private licences at 60 and Newfoundland has reserved the option to put government stores in areas without private ones. British Columbia, which has a mix of public and private liquor stores, is looking to replicate that hybrid for cannabis. Unlike most provinces, where pot stores won’t be allowed to sell anything but the dried leaves and consumption paraphernalia, BC is still considering retail cohabitation for cannabis and alcohol. Quebec, Ontario, Prince Edward Island, and New Brunswick are leaning toward stand-alone government-run pot stores, while Nova Scotia has, despite Ottawa’s recommendation to the contrary, decided to sell cannabis in existing government-run liquor stores.

Under current law, legal retailing of cannabis is supposed to be limited to a few approved companies who mail it to Canadians with easily obtained doctors’ prescriptions. But there are brick and mortar retailers (a.k.a. “dispensaries” or “compassion clubs”) operating in broad daylight in major cities – particularly Vancouver and Toronto, which have an estimated 50 or more each – that routinely flout the law. Police and city officials have largely ignored them (apart from some recent busts in Ontario), but federal and provincial officials are promising more vigorous enforcement of the new laws after legalization takes effect. Ontario is going to protect its state-run monopoly with fines of up to $250,000 and two years in jail for anyone operating non-government retail stores. BC is hinting at a less punitive approach to convince existing shops to join the fold of sanctioned retailers.

One of the primary goals is to snuff out the multi-billion-dollar black market. But it won’t be easy to replace the existing mature, efficient and competitive illegal retail system with government-run stores that have to charge various sales taxes and price-in unionized staff costs, and likely offer limited hours, locations, and product variety. This is especially true in Ontario and Quebec, which are only planning to open 40 and 20 government-run stores this year, respectively. For context, the legal pot state of Colorado – with half the population of Ontario – has 800 private cannabis retail outlets.

Figuring out how to sell pot may be the easy part. Other regulatory minefields governments must navigate include where to grow it, store it, and smoke it, and how to tell if consumers are too impaired to drive or work.

The federal legislation allows up to four plants to be home grown for personal use. Most provinces are not altering that provision, except Manitoba and Quebec, which have decided to outlaw personal cultivation. In Alberta, home growing is only allowed indoors, and plants can be no more than a metre tall. All provinces are so far upholding the federal maximum possession allowances of 30 grams on your person and 150 grams at your residence. But New Brunswick has legislated that, as with firearms (but unlike alcohol and prescription drugs or Tide pods), cannabis must be locked up at home to keep children away from it.

Inevitably, governments are also borrowing heavily from their tobacco regulation handbooks. Tobacco restrictions grow more onerous in Canada by the year, clamping down ever harder on flavours and packaging and, of course, on where blandly flavoured and frighteningly packaged smokes can be consumed. Health Canada has just completed a feedback phase on proposed pot packaging regulations that, as with cigarettes, promises dire health warnings on containers made to look as unappealing as possible.

One of the first brick and mortar marijuana dispensaries in Vernon, BC featuring an array herbal options. (Image Credit: Charlotte Helston)

Arguably the thorniest issue, however, is where governments will allow cannabis – which is certainly more pungent than tobacco, and potentially has more impactful second-hand smoke effects – to be consumed. For many non-users, “I just don’t want to smell it” is the first and sometimes only concern they have on this issue. Vaping would essentially eliminate the stink (or the negligible risk of an inadvertent contact high), but so far no province has made any regulatory distinction between public smoking and vaping.

Ontario, PEI, and Newfoundland have decided to restrict cannabis use to residences, and BC has hinted it may follow suit. If it does, this will be a great disappointment to pot users in laissez-faire jurisdictions such as the interior city of Nelson, where it is not uncommon today for tobacco and marijuana smoke to mingle on the outdoor patios of local bars. Where home-only rules are instituted, where will those who live in smoke-free apartments or condos be able to consume legal cannabis? This may explain in part why Ontario is considering allowing “BYOC” lounges – which have operated for over a decade in Toronto – to continue. So far, however, there is no indication that anything similar might be allowed for cigarette smokers, let alone the tobacco cognoscenti who favour pipes or cigars.  Presumably they will still be allowed to shiver on street corners – at a legislated distance from parks or doorways, of course.

Other provinces like Alberta and Quebec are saying you will be able to smoke cannabis wherever smoking isn’t prohibited, but Quebec has decided to ban all smoking on college campuses as part of its legalization plan. This is billed as a win-win to simultaneously reduce youth cannabis and tobacco consumption, in a province where the legal age for pot smoking will be 18. But it may not be a win for those who live adjacent to any Quebec campus, as legions of students will now be congregating on their sidewalks day and night smoking both tobacco and cannabis.

Yet the biggest challenge of all for pot policymakers is how to protect citizens from drug-impaired drivers. Some 14 percent of Canadian adults admit to being cannabis users, so the phenomenon of Canadians driving with THC in their blood is hardly a new one. Nevertheless, as governments aspire to take over the drug business, they feel a more urgent responsibility to deal with its side effects, real and imagined.

Complicating matters considerably is that there is far less consensus about how to measure cannabis impairment than there is with alcohol. There has been relentless tightening of alcohol impairment penalties across Canada in the last decade, including increased use of administrative penalties at the side of the road such as automatic license suspensions, fines, and even car seizures for drivers registering a blood-alcohol level as low as .04. This approach has been mostly met with concerns about due process, with scientific questions about what level actually signifies impairment being far more muted. But at least breathalyzer technology provides lawmakers and enforcers with a valid measuring device.

Cannabis is much trickier. While saliva-based tools are being developed, its active ingredient THC is typically measured via a blood sample. Because it is fat-soluble, however, it is much harder to accurately translate into real-time impairment. Most of the THC leaves the blood within an hour of consumption, but it still affects the brain for a few more hours, meaning blood measurements are prone to false negatives initially. That then changes to a likelihood of false positives since the THC continues to circulate in the bloodstream from fat stores for days and even weeks after consumption. Federal legislation has set a two-level threshold for legal impairment. Two nanograms of THC per millilitre of blood will earn a driver a fine, five ng/ml a possible prison term. But those amounts could be found in the blood of drivers who have not consumed cannabis for many hours or even days after impairment wears off.

Criminal lawyers like their odds in defending clients against charges based on such shaky science, and police and prosecutors know it. Last November the Alberta Association of Chiefs of Police (AACP) published an open letter pointing out that roadside testing is fraught with uncertainty: “The science related to impairment due to cannabis use is unresolved, and the Federal Government has yet to approve instruments that would objectively measure roadside impairment.” That same day, however, Alberta’s Transportation Minister Brian Mason introduced legislation prohibiting anyone with 2 ng/ml from getting behind the wheel. When asked if this was a true measure of impairment, he airily suggested that anyone who consumes cannabis should probably wait 24 hours before driving. If the same rule was applied to alcohol, half the population would be forced to park their cars.

Mason was an Edmonton bus driver before he became a politician, so he may be seeing opportunities to get more people to use public transit. But chances are some of his former colleagues occasionally smoke pot to relieve the pain of another Oilers’ defeat and then go to work the next day, evidently no worse for wear. When cannabis was technically illegal it was in some ways easier for employers to pretend no employees or applicants used it. Now that it is being sold recreationally under government auspices, though, should owners concerned about safety or productivity start demanding blood samples from new applicants or current workers, and reject or reprimand those registering a trace of THC from a joint that may have been smoked days or weeks before? At the other extreme, how should they deal with employees who return from lunch smelling of skunk? For the moment the provinces seem content to leave the hardest cases – workers with a medical marijuana prescription – up to the courts, employers, and unions to sort out, as they have been trying to do with workplace drug testing for many years.

The legalization of cannabis in Canada has been sold as a great leap forward for personal freedom, but instead governments are enveloping it in regulation, including laws rooted in poor science that menace basic civil liberties. The tax income once touted as a big benefit of legalization is now likely to be consumed, and then some according to municipal politicians or police chiefs, by the cost of enforcing all the new rules. The three levels of government, mired in confusion and evidently anticipating disaster, are already pointing fingers at each other.

All things considered there is really not much that is “free” about Canada’s pending legalization of pot.


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About Bill Bewick

Bill Bewick is an Edmonton-based political consultant and public policy analyst who served as the Wildrose Official Opposition Director of Policy from 2010-2017. He has a Ph.D. from Michigan State University and teaches American Politics at Athabasca University.