The Cannabis Act has been approved by the Senate and the House of
Commons has rejected 13 of the Red Chamber’s recommendations, including
the prohibition of branded merchandise by marijuana companies and
allowing provinces to prohibit home cultivation, but as Bill C-45 nears
its official rollout, many details about how the market will be
regulated remain unknown.
Trina Fraser, co-managing partner at
Brazeau Seller LLP, has been a legal adviser to the industry for five
years and was just retained by the Cannabis Canada Council. Earlier this
year, the Cannabis Canada Association, Canadian Medical Cannabis
Council and Canopy Growth Corporation merged to create the Cannabis
Canada Council, now Canada’s preeminent marijuana industry trade
“This is really the point at which the majority of
the licensed producers have now joined together under this one umbrella,
whereas it was kind of disjointed before. I think it's going to have a
much stronger voice now that it is much more united and will have a much
larger mandate,” Fraser says.
Fraser wants the government to provide clear
guidelines for licensing as there is currently a “real lack of clarity
and transparency in the decision-making process,” she says.
process by which a prospective marijuana producer becomes legitimate
first involves getting a criminal record check. They then file a
security clearance application form, which is submitted to Health
Canada, which then passes it on to the RCMP. The RCMP then carry out a
more in-depth investigation into the person applying, which includes
their work history, family ties, criminal investigations or complaints,
and a report is made and sent back to Health Canada. Health Canada then
determines whether that person “poses a risk to the integrity of the
legal framework for cannabis in Canada,” Fraser says.
with the law is that Health Canada has discretion over granting security
clearances for those seeking licences to grow and produce marijuana,
which Fraser says denies her the clarity to be able to advise clients. A
potential criterion for being denied is whether the person has had any
involvement in the illicit market, she says.
before the House of Commons and has made submissions to Health Canada
expressing that security clearance tests need to be drafted in a clear
way and that prior involvement in the marijuana business should not form
the basis for refusal, she says.
Fraser says that as long as
someone has no history of violence, connection to organized crime or
involvement with other drugs, something like producing cookies or
brownies that were sold in a dispensary should not exclude someone from
the legal market.
“This is a very unique situation we have here
where we have such an established, pervasive illicit market,” she says.
“From a very practical perspective, I don't think you're going to do
very well at achieving the objective of displacing the black market if
you're systematically excluding the black market from the legal one.”
says the rules seem to have been drafted in a way that prior illicit
conduct with cannabis is a good indicator of future illicit conduct.
“I don’t think that’s necessarily the case,” she says.
to Statistics Canada, the country’s cannabis black market was worth as
much as $6.2 billion in 2015. For those in the industry to want to stay
legal and tax-paying requires regulations and tax policy that does not
push consumers, sellers and producers back to the black market, says
Queen’s Law professor Arthur Cockfield.
Cockfield says taxes should be low and should not include excise taxes, such as those that apply to cigarettes and alcohol.
the longer run, you could consider raising them, but the first thing is
to get this vibrant market away from the mob and then go from there,”
Cockfield also recommends that illegal dispensaries, in
operation prior to legalization, be allowed to operate in the legal
“If they’re still in the black market, they’re not going to comply with tax law,” he says.
Cockfield does not want to see marijuana taxed like alcohol and
cigarettes, criminal defence lawyer Jordan Gold says the law surrounding
driving while intoxicated from marijuana is trying to mimic roadside
testing for drinking and driving, even though police are not
scientifically capable of doing so.
“They're sort of trying to
shoehorn in legislation that fits with the model for drinking and
driving, but there are significant differences,” Gold says.
is no accurate way to determine if someone is under the influence of
marijuana, says Gold. Taking their blood and testing for THC is
insufficient because, when a person uses marijuana, it stays in their
system long after a person has sobered up. For regular users, their
blood contains THC for weeks after use.
“If it can stay in your
system for a long time, it's impossible to expect people to never drive
if you ever use cannabis or if you're a regular user. You can’t drive
for fear that you may be arrested and charged and convicted,” he says.
retail is regulated at the provincial level, so provinces are
developing their own rules, such as Ontario’s Cannabis Act, proposed
Gold says that the mixture of the federal and provincial laws “criminalizes some pretty benign and absurd things.”
federal law makes it illegal to possess or distribute illicit cannabis,
which would be product not obtained from someone not licensed under the
provincial act. Gold says Ontario’s act is “very broad” and prohibits
selling to a person who looks to be under age 25 without asking for ID.
technically speaking, if you buy cannabis and you look under 25 and the
employee forgot to ask for ID, you're now in possession of illicit
cannabis and which is a serious crime under the federal act,” he says.
In Ontario, you’re also not allowed to distribute to a person who appears intoxicated.
you're at a party and someone’s had a few drinks and you pass them a
joint, technically, you've just breached the Ontario Act and the person
who is taking the joint is now holding illicit cannabis under the
federal act,” he says.
Gold says legalization will represent
positive steps away from spending resources policing and prosecuting
cannabis offences and criminalizing those who use the drug, although
“there are many, many behaviours associated with using cannabis that
remain criminal under this bill with serious consequences.”