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Jun 2018 | Leadership & Change Management

CANADA’S NEW CANNABIS REGIME
PETER THURLEY, PT COMMUNICATIONS AND CONSULTING SERVICES

Canada’s new cannabis regime is in its final stages of legislative review, and how municipalities manage legalization matters. The most important thing municipalities need to know is that they will need to extend training about cannabis beyond the basic sphere of law enforcement. Indeed, municipalities should consider cannabis education as a priority for ALL staff, not just staff who may be directly responsible for enforcement. This includes legal regulations and basic education about cannabis, itself. Cannabis will be available as a legal product across Canada, and no matter what size a municipality may be, municipal staff will need to know the basics to make the best decisions for the future of their community. This requires letting go of various preconceptions about cannabis and its users, as well as welcoming cannabis education into municipal forums.

 

I. High-level Overview of the Federal Legislation

 

Any description of the framework for cannabis in Canada comes with the caveat that this discussion is subject to the passing of enabling federal legislation, the Cannabis Act (Bill C-45). At press time, the bill is still working its way through the Senate; until such a time as this legislation is passed, the recreational use of cannabis remains illegal. Along with the Impaired Driving Bill (C-46), which is outside the scope of this piece, the Cannabis Act sets the baseline for the Canadian cannabis regime, while leaving much of the implementation to each province. I trust that as we are mere months away from legalization, most municipalities are already familiar with what the Cannabis Act does; so, I will simply highlight a few key points of the legislation.

First, the bill aims to keep cannabis out of the hands of children and youth by taking a public health approach to cannabis legalization. Second, it eliminates the illegal market and invests the profits back into important Canadian social programs. Recognizing that most municipalities have important responsibilities with respect to the enforcement of laws, Trudeau’s Liberal government agreed to transfer 70 percent of tax revenue to the provinces if money found its way into the coffers of municipalities.

The federal government has set the Minimum Age for recreational cannabis use at 18, with each province having the ability to set a higher age if desired. In all cases, provinces have aligned the age with the legal age to consume alcohol in their jurisdiction. While some provinces have allowed for the co-location of alcohol, most have created a system that forbids the co-location of alcohol and cannabis sales.

While it may feel counterintuitive, key to achieving these goals is the need to ensure that legal cannabis remains reasonably accessible, with prices low enough to cut out the illicit market, while ensuring a steady tax revenue.

 

II. Interprovincial Systems

 

Trina Fraser, CannaLaw® group leader at Brazeau Sellers Law in Ottawa, has put together a helpful one-page chart (Figures 1, 2, 3) that provides an overview of regulations across the country. While it will be important to review your specific provincial legislation in detail, I would suggest that municipalities understand how each provincial system works with the proposed regulations.

 

III. What Municipalities Need to Know

 

The Federation of Canadian Municipalities has recently published a thorough guide on cannabis legalization. Notably, FCM commented on the role that the Canadian Charter of Rights and Freedoms plays in ensuring reasonable access to cannabis, once legal. FCM was very clear that municipalities cannot get away with overbearing or overreaching bylaws. This is particularly important when it comes to the accommodation of medical cannabis patients; there are greater burdens placed on municipalities to ensure that the Charter rights of medical patients are not violated. That said, municipalities are empowered to make decisions regarding building codes and zoning, as well as the production, processing, and consumption of non-medical cannabis. The guide lays out the way some municipalities have chosen to address zoning and proximity issues, treating cannabis production and processing facilities in the same way they do other adult type businesses.

 

Notably, it is within the right of a municipality to prohibit all cannabis businesses in a community, provided enabling legislation from the appropriate jurisdiction allows them to do so. In the province of Manitoba, for instance, communities have been allowed by the provincial government to refuse to host any kind of cannabis business, including a private or public cannabis store. These prohibitions can extend to the point of forbidding cannabis production by modifying bylaws to exclude cannabis from the definition of agriculture.

Restricting cannabis retail locations to the point of inaccessibility, to keep cannabis out of the hands of young people, is not the best approach. The central purpose of the Cannabis Act is to open accessibility to regulated cannabis produced safely and reliably, in order to drive out undesirable illegal and unsafe activity. Relegating retail cannabis locations to the outskirts of town or otherwise less accessible places will simply help to maintain the illicit market.

Banning cannabis-based businesses will not prevent residents from using cannabis, nor will this prevent medical cannabis users from accessing their medicine through the existing ACMPR program. According to the FCM guide, this means recognizing that some pharmacy chains have already entered into contracts to carry medical cannabis, and that jurisdictions should be careful not to restrict this kind of medical sales.

One of the larger challenges is enforcing provincial public consumption and smoking regulations. Cannabis has a particularly noticeable odor, which quickly becomes a nuisance, not dissimilar to cigarettes or cigars. Many people are intolerant of smoking, and complaints make enforcement difficult and expensive. Communities should recognize that it is inevitable that there will be complaints with respect to cannabis use on private property.

It’s also important to recognize that consuming cannabis is also frequently a social activity. One way that communities can get around the nuisance of smoke and smells is to authorize the opening of ‘cannabis cafés,’ or Vape Lounges, which can act as a release valve for cannabis users who may be tempted to congregate in public or in parks, further taxing local enforcement systems. While it may be distasteful to some, creating spaces for legal cannabis users to consume with others will ultimately have the desired effect of keeping cannabis users off the street.

One of the controversial components of the federal Cannabis Act is permission granted to Canadians to grow up to four plants in their dwelling-house, unless provinces choose to regulate otherwise. Thus far only Manitoba and Quebec have forbidden personal home growing, though there has been significant resistance from the country’s landlords, real estate investors, and home owners. In a February 2018 report from the Financial Post, David Hutniak, CEO of Landlord BC, said, “Can you imagine you’re living in a 100-unit apartment, and in theory, there could be 100 grow-ops in that thing? I mean, that’s ridiculous.”

While Mr. Hutniak may be worried about his 100 units taking up the art of cannabis growing, the data suggests that less than one percent of medical users grow their own plants, and that few recreational consumers will consider growing their own plants in the future. The average cannabis consumer will be more concerned about ease of legal access than they will be about setting up a grow room in their bedroom.

Moreover, as FCM notes, “there is no reason … for those engaged in the activity not to comply with applicable building construction and safety standards. They don’t need to stay ‘under the radar’ of law enforce­ment.” That said, there is no concern about possible Charter violations. If a municipality chooses to place restrictions to building codes such that home growing is not possible, it will be important to remember that they will be responsible for ensuring compliance through their own means of enforcement.

“While many communities will be focused primarily on enforcement of regulations, the ones who spend time, money, and energy on balanced and effective staff training programs will ultimately be the municipalities who come out on top.”

 

IV. Training Matters

 

While many communities will be focused primarily on enforcement of regulations, the ones who spend time, money, and energy on balanced and effective staff training programs will ultimately be the municipalities who come out on top. The education of municipal staff, in addition to law enforcement officers, will require an open mind; municipalities across Canada must face the reality that cannabis is going to be legal by the fall of 2018, and will only continue to grow as a social activity within Canadian society. As Dr. Mark Ware noted in his presentation to the Senate Committee on Social Affairs, Science and Technology on May 9, 2018, the legalization of cannabis as an adult use product is a paradigm shift for all of us, and it will be easy for none of us. In his closing comments to the committee, Dr. Ware asked Senators to “think of cannabis not as a dangerous drug with potential harms but instead to start thinking of it as a cultivated plant with a diverse set of benefits.” Municipalities that do not make this shift in thinking risk being left behind, their feet firmly planted in a 20th century War-on-Drugs mentality.

It may come as a surprise to many municipal governments that there are already many medical and recreational cannabis users in their community from all walks of life that they likely don’t know about. It’s important to recognize that not every person who consumes cannabis will become a problem or issue for governments to deal with. Indeed, the vast majority of cannabis consumers use a little bit of cannabis as a way of de-stressing, or otherwise just having a good time with friends. From one or two puffs as a sleep aid, to a BBQ with friends and family, cannabis has been used discreetly by Canadians for a very long time. According to a 2016 study by Deloitte, in partnership with another Toronto research firm, out of “5,000 Canadian adults (19 years or older) from coast to coast, 1,000 … identified as current recreational marijuana consumers.” The same snapshot determined that an additional 17 percent of the adult population would like to try cannabis if it was legal. With nearly 40 percent of the population either consuming cannabis or open to trying it as a legal product, it is important to recognize that cannabis has, and will continue to be, a part of Canadian society.

Training municipal staff, especially those who are used to treating cannabis as an illicit substance, and who may be unwilling to change their attitudes, can be met with resistance. They’ll be used to having conversations about cannabis as if it were a purely negative thing – a substance to be avoided at all costs. From law enforcement, to bylaw officers and public health agencies, few are aware of the complexity of the plant, its constituent parts, or the way that it works in the body. This frequently means that when experts are asked to come and speak to municipalities on cannabis, there are important pieces of the puzzle that are missed.

Finding knowledgeable and unbiased people to provide the training to municipal employees can be difficult. Human Resources and Health and Safety departments will have to adjust their policies and procedures with respect to cannabis usage on the job, and any “hangover” effects. With legalization, there could also be an increase in the cost of benefits programs, particularly within extended health care benefits.

 

PETER THURLEY, Principal & Chief Writing Officer at PT Communications and Consulting Services, became a medical cannabis patient in 2015 after the removal of a 25lb desmoid tumour that burst his bowels and left him with significant neuropathic chronic pain, a panic disorder and PTSD. Seeing a reduction in opioid use and a drastic increase in quality of life, Thurley became an ‘accidental’ cannabis advocate, with published pieces in the National Post, the Ottawa Citizen and CBC Opinion Online. He lives in Kitchener, ON and is a member of the Board of Directors at Canadians for Fair Access to Medical Marijuana. Thurley can be found online at peterthurley.ca or @pfthurley.com. 

 

Sign up for our Editorial Round Table webinar on July 5th, 2018 1 - 2 PM ET to discuss all of the Leadership and Change insights of the issue. It is your opportunity to connect with the contributors, ask questions of your own, and engage with municipal leaders across Canada.