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Cannabis and Sparking Up Public Law

October 16, 2018

Roz Bahrami

Wednesday, October 17, 2018, is the day a wide range of new legal mechanisms come into effect, all “sparked” (and I promise not to put that word in quotes again!) by the legalization and regulation of recreational cannabis use in Canada.

This day has occasioned a host of important questions (and no small measure of moral panic) in some quarters as well). Will children be more likely to access cannabis tomorrow?

Should we regulate cannabis more like tobacco (with new and ever-expanding no-smoking zones and public education) or more like alcohol (with strict rules on when someone who has consumed it can drive or work), or both? How will medical users of cannabis be distinguished from recreational users (a problem we associate more with opiates than with tobacco or alcohol)? How will cannabis rules be harmonized across municipalities, provinces, Indigenous communities and federally? How will detailed rules about the amount of cannabis which can be grown, or distributed in various forms, be enforced? Will investment in cannabis industries differ in legal form or liability from other aspects of the Canadian economy? Where will the new revenues from cannabis go? How can users be expected to know the myriad of new rules and regulations they are or may be engaging?

These are good questions, and to each, public law is working on a solution, though usually, it is a complicated one. Cannabis falls into a grey area for the legal system, where legislation makes certain conduct legal, but limits that conduct through a host of regulations (think gambling, prostitution, and tobacco, as other examples) – this is what Bill Bogart has termed the realm of “permit but discourage.” For example, Halifax has passed a municipal by-law banning smoking of any kind on all city property (including parks and sidewalks!). Under the federal Cannabis Act scheme, adults can be in public spaces with up to 30 grams of dried cannabis but not 31 grams, and can grow up to 4 plants at home for personal use but not 5, but it is up to provinces to determine other details around the sales, distribution, and use of cannabis, including what will be delegated to municipalities. A number of Indigenous communities have now passed their own rules too, some pursuant to arrangements with provinces and some based on self-government and inherent sovereignty grounds.
You can consume cannabis at the age of 18 in Alberta but must wait until you are 19 in Ontario and until you are 21 in Quebec. You can buy cannabis in private stores in B.C. but only to those who obtained licenses through the Government wholesaler, while initially, in Ontario, only the online Government store will distribute cannabis (though it promises to open up the market with a new licensing scheme to come in April 2019). See the official patchwork regulatory quilt here.

While this just scratches the surface of the complexity at all levels of government in Canada around the legalization of cannabis, you get the idea. Through the catalyst of cannabis, Canada is experiencing a jolt of innovation in public law – and many jurisdictions are grappling in new ways with enduring questions about the relationship between the government and markets, the relevance of evidence in the assessment of public risk, and how to turn on more or less a dime from illegal to legal conduct. Of course, we have been here before. Prohibition and subsequent regulation of alcohol in Canada (a brief national phenomenon between 1918-1920 but common throughout provincial and municipal jurisdictions through the early part of the twentieth century) also served to advance a host of public law doctrines in Canada and reflect much about Canadian society.

Cannabis legalization itself is a very Canadian public law story, in which a changing culture led to law reform and reforming laws has led to culture change, with the involvement of community activists, law reformers, legislators, litigators, jurists, and public servants. Starting at least from the important law reform work of the Le Dain Commission into Non-Medical Use of Drugs (1969-72), to the first legal victories carving out medical marijuana from the sphere of criminalization such as the Ontario Court of Appeal’s decision in R. v. Parker in 2000, to the Cannabis Act – Bill C-45 passed in June 2018, public law has shaped the debate on cannabis – from discourses on how to deal with a moral scourge to discussions of the assessment of risk based on evidence of harm, and where criminal justice and health care, individual freedoms and regulatory standards, have been the subject of a delicate and dynamic balance. No doubt this will continue and intensify as federal-provincial, provincial-municipal, federal/provincial/municipal and Indigenous agreements and disagreements are sorted out, with the involvement of courts, tribunals and regulators at almost every stage charting the journey.

While I will be interested along with everyone else on how legalization of cannabis affects our society, our communities and our families tomorrow and in the days ahead, I will also be curious to see how public law evolves as a result of this experience. Will we find a way through cannabis to advance the goals of Reconciliation? Will regulatory instruments developed to address cannabis at the federal, provincial and municipal level alter our sense of the public and private spheres? How will we measure the success of the regulatory efforts developed in response to cannabis? How will our approach to those convicted of cannabis use or distribution in the past change as those exact same activities tomorrow become legal?

Public law is the place where we will tell the collective story of who we are, how we got here, and how we want to live in the future. In this sense, whether or not you light up, what tomorrow will spark will undoubtedly affect us all!

Editor’s Note: This article by Lorne Sossin, titled “Cannabis and Sparking Up Public Law” was originally published October 16, 2018, on Lorne Sossin’s Law Blog. It can be found here

Lorne Sossin served as Dean of Osgoode Hall Law School from 2010 to 2018. Prior to his appointment, he was a professor with the Faculty of Law at the University of Toronto. Lorne has also published numerous books, journal articles, reviews and essays. He is currently a professor at Osgoode Hall Law School.