Canada looks abroad for lessons ahead of legalizing cannabis

On April 13, 2017, Canada’s federal government tabled two bills to legalize the consumption and sale of marijuana: Bill C-45, which addresses the regulation, sale and cultivation of recreational cannabis, and Bill C-46, which focuses on strengthening impaired-driving measures. Prime Minister Justin Trudeau’s Liberals, who first pledged to legalize marijuana in their 2015 election platform, plan to enact both pieces of legislation by July 2018. 

The timeline is shrinking, but the questions are growing. Canada is on track to become the first federation, and the first G7 country, to legalize and regulate marijuana at the national level. All three orders of government are now grappling with how to ensure that the proper regulations, laws and by-laws are synced up and ready to go by the time this legislation is scheduled to come into effect, and in a way that serves the best interest of all Canadians.

Canada is navigating an uncharted territory of policy challenges and social implications, and the world is watching. What lessons can our policymakers, analysts and stakeholders draw from other jurisdictions that have gone down this path?

McGill University’s Institute for Health and Social Policy (IHSP) held a conference in April to address some of these questions, bringing together academics, policymakers and high-ranking government officials from Canada, the US, Portugal and Uruguay to discuss a range of challenges and opportunities that Canada faces as it moves ahead with its plans to legalize cannabis.

“Legalizing marijuana in Canada is one of the most bold and potentially risky policy measures to have been adopted by the Canadian government in quite a long time,” observes Daniel Weinstock, director of the IHSP at McGill University. “Its implications and moving parts are numerous.”

How, for example, should Canada distinguish between regulating recreational and medicinal uses? How might legalization impact different communities? How will Canada eliminate the illegal market? How should government regulation balance revenue with public health? And how do Canada’s plans to legalize marijuana square with our international obligations?

Existing legislation in other parts of the world offers some insight, much of which was shared in Montreal last month.

Lessons from Uruguay

When it comes to the legalization of marijuana, Uruguay is a pioneer. In December 2013, the Uruguayan parliament approved a bill legalizing the production, sale and consumption of recreational marijuana. It was the first national drug policy of its kind, and after decades of hard-line, prohibitive drug laws and punitive policies, this small South American country placed itself at the vanguard of international drug policy reform. To date, Uruguay is still the only nation in the world that legally allows marijuana for recreational purposes.

The system is centralized, government controlled and strictly regulated. Only citizens and permanent residents are allowed to access marijuana legally. Users must first register with authorities and have their purchases tracked. (According to lawyer Leonardo Costa Franco, who spoke at the McGill conference, 34,108 people are currently registered under the Uruguay system — equivalent to one percent of the population.) Adults are permitted to buy up to 40 grams of marijuana every month, and the product is sold only from approved pharmacies.

Uruguay, wedged between Argentina and Brazil, chose the pharmacy model for a few reasons. “In part, it was because of geopolitics and to reassure their neighbours, but also because people trust pharmacies there. And there’s the additional benefit of connecting people to potential health services,” Hannah Hetzer, who spoke at the conference, told OpenCanada. Hetzer serves as senior international policy manager with the New-York based Drug Policy Alliance. In 2013, she was in Uruguay working on its campaign to legalize marijuana.

It’s important to distinguish between regulating recreational and medicinal uses, she stresses. “It might make sense for medical marijuana to be sold in pharmacies, but I don’t think people should have to register and provide their name for a database to consume for non-medical purposes.” Uruguay also has a complete prohibition on direct and indirect advertising of marijuana products. “Theirs is a very non-commercial model,” says Hetzer. “No advertising, no product diversification. It’s just a few different THC [tetrahydrocannabinol] and CBD [cannabidiol] levels, just the flower itself, no edibles.”

Unlike Uruguay, Canada’s plans for legalizing marijuana at a national level involves engaging with the complex dynamics of federalism. This is no easy task.

As it stands, the federal government will be responsible for regulating the production of cannabis, establishing rules around possession limits and minimum age limits for purchase and consumption, advertising, tracking seed to sale, establishing personal cultivation and the ongoing oversight of the medical cannabis regime. The provincial and territorial governments will be responsible for creating the regulatory regimes and governing certain aspects of the legalization framework, including distribution, how many plants residents can grow for personal use, the selection of a retail distribution model and workplace safety. Much like alcohol regulation, provinces will also have discretion to set higher age limits or more restrictive possession limits.

Municipalities are expected to be closely involved with zoning, business licensing and building codes, workplace safety and enforcement of regulations around public consumption and impaired driving. There could be shared jurisdictional responsibility in areas such as public consumption, rules for retail locations, taxation from cannabis sales, public education, public health and law enforcement. The issue of home cultivation is one that already seems particularly thorny; Manitoba and Quebec have said they will prohibit home cultivation entirely, despite the four-plant limit permitted under the proposed federal law.

Hetzer is encouraged by the fact that Canada is allowing municipalities and provinces some freedom to choose to go about things in their own way. “There’s a lot to be said for having localities decide what fits them best,” she says. “It will be complex because there will be differences. The hope is that operations are smooth between the [government] levels. There will be a lot to figure out.” In fact, because of its federal system, Canada may end up developing a number of different models that can be tested out, monitored, evaluated, and possibly applied elsewhere.

The legalization of marijuana is a process, not a one-off event. To this end, Hetzer encourages Canada to build flexibility into the system, and be prepared to right what goes wrong. 

Lessons from the US

In the US, marijuana is illegal at a federal level. However, nine states and the District of Columbia have legalized marijuana for recreational use for adults over the age of 21. Medical marijuana is legal in another 21 states.

“In the US, we have progressively gotten better with each initiative at writing into the law social justice provisions…that are based on learning from the previous jurisdictions what went well, and some of the things that didn’t go well,” Hetzer explains.

Take edibles, for example. Unlike Uruguay — where edibles are not permitted under the law — the US has a great deal of product diversification. “We originally saw out of Colorado scare stories of people who had consumed too many doses of edibles,” Hetzer says. “You could buy a bar of chocolate with like 16 doses in it, and you’re meant to auto regulate. But who eats one tiny piece of chocolate? We learned that packaging and doses are important — not just information but breaking it down into different doses. This is the great thing about regulation. If something is not working, you can fix it.”

Trudeau’s government has framed its approach in terms of health and harm reduction, protecting youth, and countering the damaging effects of over-criminalization for drug related offences. During his keynote talk at the IHSP conference, former Toronto police chief Bill Blair, who now serves as a Liberal member of parliament and parliamentary secretary to the minister of justice and attorney general of Canada and to the minister of health, stressed that legalizing and regulating cannabis is not the same thing as promoting its use. “It’s not as though we’re introducing [cannabis] into Canadian society,” he said. “What is new is a different set of choices, and the ability to make informed decisions.”

Hetzer says that Canada should base its policy approach on evidence and best practices, not rhetoric or what will win political points. She argues that the best way to protect people is “to switch out the fear based, just-say-no education for evidence based information,” and suggests Canada look at Colorado’s ‘Good to Know’ campaign. “It’s very honest,” says Hetzer. “These are the things to know about the law, what you can and can’t do. It’s not promoting use, but if you are going to use, these are the things you need to look at.”

We also know that the war on drugs has disproportionately impacted certain communities globally, but there’s less information about how this has actually played out in Canada in regards to marijuana. In the US, it is clear that black and Latino communities have been over-criminalized by punitive drug policies, policing and mass incarceration. In Canada, while there is a lack of nation-wide research on the correlation between marijuana related arrests and convictions with race or ethnicity, data shows that black and Indigenous populations are overrepresented in Canada’s federal prisons for drug related offences as a whole. A 2017 Toronto Star analysis and a 2018 VICE study showed that black and Indigenous people are more likely to be arrested for possession of marijuana than white people.

Consequences of a criminal record for marijuana possession can be devastating, including work, travel and housing restrictions. Although cannabis possession charges have been on the decline in the last few years according to Statistics Canada, Hetzer recommends that Canada make record expungement a priority. The Trudeau government is said to be studying the idea of amnesty for possession charges. 

She also suggests all levels of government work closely with police to make public consumption a low law enforcement priority. “Regulation is great when it comes to making arrests plummet in terms of use and possession. But what we are seeing [in the US] is a shift in policing practices, arresting people for public consumption. We have to be mindful of that happening, to ensure that the absolute numbers are down, but that police aren’t just shifting to over-arresting for those offences.”

Part of this will involve creating public consumption spaces where people have somewhere to legally consume. “Some people may not be able to do it at home because of their family, or if they live in public housing,” Hetzer notes.

She points to the system of social clubs in Uruguay as a model to explore. Registered users can set up cannabis cooperatives of 15 to 45 people to grow marijuana, which enables them to plant up to 99 plants in the same space. Uruguay exempts cannabis from taxes otherwise imposed on agricultural products, only mandating a value-added tax for sale. “The cannabis membership clubs [are based on a] non-profit model, so they can’t sell outside their club.

“I’m highly in favour of marijuana regulation, but I am also concerned with over-commercialization and the power of big companies. As much as Canada can prioritize non-profit models, small business licenses and then try to have internal checks on red lines where industry can influence too much, the better.”

Research, monitor, evaluate

Hetzer recommends Canada do as much monitoring and evaluation of the legalization process as possible. “Marijuana regulation is pretty new. But the world is heading in that direction, and we’re going to have to learn from different models.”

In particular, she encourages Canada to support robust, multi-year research studies on the benefits and risks of medical marijuana and opioid related harms. From an international perspective, it’s a gap that needs to be filled. For example, the National Institute on Drug Abuse, a US federal government research institute, does not allow for funding of studies that could show potential benefits of illicit substances, including marijuana.

“It’s really problematic,” explains Hetzer. “It limits how much [the US] can contribute to the debate around the efficacy of marijuana in treating different things. This is why the majority of the good medical marijuana research comes out of other places, like Israel and the Netherlands, because [in the US] we’re not allowed.” These research restrictions mean that the US is unable to create an evidence base around potential benefits of marijuana, as well as its risks.

Finally, there is concern that the government’s plan to legalize non-medical and non-scientific cannabis use will place Canada in violation of international drug control conventions. Canada is signatory to three UN conventions prohibiting the production, possession and consumption of drugs, including cannabis: the Single Convention on Narcotic Drugs of 1961; the Convention on Psychotropic Substances of 1971; and the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

The Trudeau government has still not revealed how it plans to stay in compliance with the conventions. It is now too late to withdraw from the treaties before legalization takes effect, since they require a notice of withdrawal six to 12 months in advance.

“I think it’s high time those conventions be reformed,” says Hetzer. “It’s unlikely to happen soon. But the discussion at the UN has been changing over the last few years. There are more and more countries talking about reform, so the more those voices like Uruguay and Canada show up explaining their health and harm reduction principles in international arenas, the better.”