- Email: [email protected]
The Canadian Cannabis Act legalizes and regulates recreational cannabis use in 2018
Health Policy 122 (2018) 205–209
Contents lists available at ScienceDirect
Health Policy journal homepage: www.elsevier.com/locate/healthpol
Health Reform Monitor
The Canadian Cannabis Act legalizes and regulates recreational cannabis use in 2018夽 Chelsea Cox a,b,∗ a b
Dalhousie University, Schulich School of Law 6061 University Ave, Halifax, NS, Canada
a r t i c l e
i n f o
Article history: Received 22 August 2017 Received in revised form 9 January 2018 Accepted 10 January 2018 Keywords: Cannabis Legalization Drug policy Drug reform
a b s t r a c t Canada is on the cusp of an unprecedented change in its governmental approach to recreational cannabis consumption. By July of 2018 the country will legalize and regulate recreational cannabis use across the country via the implementation of the Cannabis Act, representing the second country in the world and the first in North America to do so. With almost half of Canadians having admitted to using the drug illegally, this change in policy has been long advocated. While medical cannabis has been legal since 2001 this represents the first time in recent history that recreational cannabis will be legal on a federal level. As the country moves away from criminal prohibition into a framework centered on harm minimization and public health and safety, the policy specifics are being worked out by a variety of stakeholders. With limited peer-reviewed research and similar regulatory schemes to shape the Cannabis Act off of, Canada is entering unchartered territory. As other countries around the world struggle with illegal cannabis consumption, the Canadian example and novel regulatory scheme could prove a useful guiding tool for future policy in other jurisdictions. The following paper discusses key areas to watch and a brief intro of how Canada got to where it is and the foundational need for a shift in policy. © 2018 Elsevier B.V. All rights reserved.
1. Policy introduction Recreational cannabis use has been the subject of criminal sanctions over the past century creating societal tension between those that use cannabis socially and the resulting criminal law penalties. Cannabis has been used recreationally for thousands of years yet it’s illegality continues to be maintained by governments internationally. Despite the drugs illicit status in Canada, almost half of Canadians have admitted to using the drug, signalling a disconnect between the current law and actual societal practices. This disconnect has spurred government action, engaged policy-makers, and highlighted the need for regulatory change in Canada. In 2015 the current Trudeau-led government stated that they will federally legalize and regulate recreational cannabis sale and use by July 2018 [1]. This will make Canada the second country in the world to legalize and regulate the drug’s consumption in a recreational capacity on a federal level. Uruguay became the first country in the world
夽 This is a EUROB funded article. ∗ Correspondence to: 61 Town Rd, Falmouth NS B0P1L0, Canada. E-mail address: [email protected] https://doi.org/10.1016/j.healthpol.2018.01.009 0168-8510/© 2018 Elsevier B.V. All rights reserved.
in 2015 to legalize recreational cannabis as a tactical response to a powerful illicit market and high crime rates associated with the drug sales. Canada’s plan to federally legalize and regulate recreational cannabis sale and use marks a fundamental shift in policy, with the overarching aim to align public health and community safety with actual societal usage. While eight states in the US allow regional, state-level access to recreational cannabis, Canada is planning an unprecedented federal change, reforming and regulating cannabis use and sale across the country. Many countries around the world allow criminal exemptions for those using cannabis in a medical capacity, however its use recreationally remains illegal. By removing criminal sanctions for consumption and enforcing a regulatory framework, the Canadian government will aim to place the focus on public health and education rather than criminal prosecution [1]. In 2015 the Canadian government officially signaled that the current prohibitory approach to cannabis had been unsuccessful and formally committed to legalization with the goal of July 2018 [1]. Moving from a prohibition model to one of legalization will allow the federal focus to be placed on harm minimization, restricting youth access, social education, and maintaining public health and safety as central policy tenements [1].
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C. Cox / Health Policy 122 (2018) 205–209
Fig. 1. Medical Cannabis Registrations from 2001-present.
2. Medical and quasi-medical cannabis in practice Canada’s commitment to legalize and regulate recreational cannabis marks a significant shift in Canadian policy. The government will not only enable personal consumption and possession of the substance but will also introduce a regulatory framework for manufacturing, distribution, sale, and marketing. Legal recreational cannabis access and use will run alongside an established medical exemption in Canada. Medicinal cannabis, or cannabis use as directed by a health-care practitioner, has been legal in Canada for over fifteen years as directed by a decision in 2001 from a provincial-level court which lifted the blanket prohibition on cannabis on the basis that it deprived an individual’s constitutional right to make decisions regarding their healthcare interventions [3,4]. This court ruling sparked the implementation of the Marihuana Medical Access Regulations which laid the federal regulatory framework for enabling medical cannabis users to be exempted from criminal penalties for cannabis possession [5]. In 2001, after the implementation of these regulations, 100 citizens were granted access to legal medicinal cannabis. That number has increased substantially over time to 37,800 in 2013 and reaching over 200,000 in 2017 [5]. A further regulatory change in medical cannabis access occurred in 2014, minimizing the role of government in the regulation of cannabis within the medical community. Prior to 2014 each person applying for a medical exemption was required to receive special access from Health Canada, the federal regulatory body. In 2014, the regulations minimized the government’s role as gate keeper, leaving pricing schemes and the distribution of medical cannabis up to private industry while also placing the onus on physicians to decide when prescribing was appropriate based on limited peer-reviewed research and an increasing demand from Canadians seeking a legal way to use cannabis [5]. In tandem with this regulatory change, the government publically announced its future plan to legalize recreational cannabis [1]. These two events shifted the cannabis regulatory landscape in Canada, resulting in an escalation from those seeking legal access to the cannabis via the medical exemption irrespective of whether their need was fundamentally medically-based [6]. Over 200,000 people accessed cannabis through a medical exemption in 2017 with that number rising in 2018 as shown in Fig. 1 [6,18,19]. The exponential increase in Canadians seeking access to a legal form of cannabis through medical exemptions has enabled a grey area of quasi-recreational cannabis use to proliferate under the guise of medical allowance. Fig. 1 depicts the growth over time of Canadians granted medical access to cannabis. The latest released market data from Health Canada places the total number of medical client registrations at 235,621 at the end of 2017 and into 2018–an exponential growth
from 100 registrations in 2001 when medical cannabis was first legally exempted [6,19]. This graph represents the significant growth in Canadians granted medical access to cannabis and exemption from criminal penalties [6,18,19]. Individuals are able to possess, use, grow and/or purchase cannabis legally with a medical exemption. This number has risen exponentially, rising from 100 in 2001 to over 200,000 in 2017 [19]. This has resulted in a cannabis regulatory environment rift with public misconceptions. With the federal government signalling that recreational cannabis use will soon be legal while simultaneously maintaining the substances illicit status, Canadians are unsure of the current legality of the substance. The country has seen a significant increase in “medical” cannabis dispensaries, “medical” mail-order cannabis services, and other grey market stakeholders operating under the exempted allowance umbrella of medical cannabis, while in reality servicing those using cannabis recreationally. These early market stakeholders are positioning themselves within the legal medical market in hopes of gaining access to the legal recreational market in 2018 [7]. Despite operating in the public eye these cannabis distribution services are still considered criminal activity however, various provinces have taken various approaches in dealing with these grey areas businesses. Police raids, by-law implementation, and disregard and allowance by municipalities are all approaches taken by different provinces in relation to the current sale of cannabis through dispensaries storefronts [7,8]. Illegal or not, these storefronts and points of sale have become an established method of “medical” cannabis distribution as legalization of recreational cannabis looms and Canadian seek access to the drug. This disconnect between public perception, market development, and police intervention showcase the current tangled cannabis atmosphere in Canada. As a response to this climate of disconnect and to help solidify how legalization should take form moving forward, the Canadian government formed a cannabis legalization Task Force in June of 2016 to engage the public and formulate a framework for regulating recreational cannabis [2]. The findings of the Task Force culminated in a 100-page report that discussed policy considerations ranging from ensuring a safe supply chain of cannabis to recommendations for appropriate tax schemes [2]. The Task Force actively involved Canadian citizens via a public consultation process which ran alongside the involvement of key stakeholders ranging from Indigenous representatives to the Canadian Medical Association [2]. The result of the Task Force’s work has helped form the foundational framework that the federal government is currently working within as it begins to draft the Cannabis Act via Bill C-45. This Act will enable legal recreational cannabis consumption, sale, and possession across the country [9].
C. Cox / Health Policy 122 (2018) 205–209
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Fig. 2. Spectrum of Drug Policy Options.
3. From prohibition to regulation The underlying rationale for the change from one of prohibition to one of regulation can be found in the preliminary wording of the prospective Cannabis Act [9]. The objective of the Act is rooted in redirecting focus and resources from criminal prohibition to governmental regulation. The goal of legalization and regulation is to minimize the associated harms with an illicit market, restrict youth access, establish a proper safety and quality regulatory environment, deter and eventually eliminate the illicit market, and reduce the burden that prohibition has placed on the criminal justice system [9]. Legalization, when viewed as a graph (Fig. 2) is regarded as the most capable regulatory framework in providing the balance of public health goals and criminal market deterrence [2]. As illustrated in Fig. 2, the relationship between the potential social and health harms of cannabis and spectrum of potential drug policy intervention (ranging from ultra-prohibition to commercial promotion) favors strict legal regulation rather than the current legal prohibition. This level of government regulation and oversight acknowledges that cannabis use will occur regardless of criminal sanctions seeking instead to minimize associated harms and ensure a strict and controlled regulatory environment. The shaded green area labelled ‘strict legal regulation’ represents where Canada aims to fall as it implements its new cannabis policy framework in July 2018 [2]. It is within this space that stakeholders agree the objectives of the prospective Cannabis Act can be met. ‘Prohibition with harm reduction/decriminalization’ follows models seen in Portugal and the Netherlands but lacks the governmental oversight, involvement, and regulation that Canadians seek. ‘Light market regulation’ on the other hand would allow the market to sort itself out with little governmental regulation [2]. This level of control is also undesirable due to the multiple unknowns associated with cannabis use and the potential risks that have come to fruition with Big Tobacco when governments take a hands off approach to regulation [2]. Strict legal regulation is rooted in strong governmental oversight and seeks to limit harms, diminish illicit market activity, and enable policy makers to tread carefully into unchartered territory while maintaining control. This is a marked change from past medical cannabis regulation which only exempted those who used and possessed cannabis from criminal sanctions. The federal government is not only lifting the criminal ban on recreational cannabis use and possession but will also take an active role in cannabis regulation across lev-
els of consumption from seed to sale. The government will play a fundamental role in cannabis manufacturing, distribution, marketing, and purchasing [2,9]. With high social support for this form of regulation the future implementation of the Cannabis Act seeks to align Canadian public opinion and practices with appropriate policy intervention and regulation [10]. 3.1. Policy implementation: considerations & discussion As Canada moves forward in the drafting of the Cannabis Act there remains little background evidence to inform how the new policy and regulations should be developed and drafted. There are no modern examples in the world of legal cannabis regulation on a federal level that mirror the scope that Canada is attempting to achieve [25]. While the Task Force looked to jurisdictions where recreational cannabis has been legalized for guidance, there remains minimal federal guidance for a nationwide approach of this scale [2]. What has occurred as a result of the lack of analogous comparators are parallels to be made between recreational cannabis regulation and alcohol regulatory schematics. Infrastructure and regulatory bodies currently in place for alcohol are being positioned to help support and direct regulatory considerations for recreational cannabis [25,26]. While each province in Canada will be separately responsible for setting up their own regulations regarding retail and utilization, the following areas of consideration cut across the country and have been given considerable discussion as legalization moves closer. 3.1.1. Minimum age The prospective Cannabis Act will federally regulate how cannabis can be produced, marketed, and distributed, however policies surrounding consumption will be left to Canada’s thirteen individual provinces and territories [1]. This mirrors alcohol regulation in Canada. Allowing individual provinces to determine consumption schemes ensures that they are adaptive and reflective of each provinces distinct demographic however it can also cause inconsistencies across the country. A current example of this is the consumption age of alcohol in the Canada; in some provinces an 18-year old is considered legal drinking age while in others it is 19. Current discussions are being held as to what the appropriate legal age should be for cannabis consumption moving forward. The Federal Task Force has recommended an age no younger than 18, taking into account a wide variety of stakeholder responses [2].
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Table 1 Potential Models of Market for Recreational Cannabis Sale. MODEL
Potential Advantages
Potential Disadvantages
Jurisdictions
Public (Government Monopoly)
• Existing infrastructure • Expertise in restricted substances • Government control and public health grounded focus
• Co-location of alcohol and cannabis • Lack of competition to hedge out illicit market (monopoly market)
• Nova Scotia • New Brunswick • Ontario
Private (Commercial free market)
• Expertise and knowledge of cannabis • Flexible to market needs • Competition drives prices and product innovation
• Minimized government involvement • Driven by profit rather than public health objectives
• Colorado
Hybrid (Government & private industry)
• Existing infrastructure with free market capabilities • Combines government oversight with cannabis expertise
• Potential to inadequately hedge out illicit market
• British Columbia • Manitoba
While the Task Force recommended no younger than 18, the Canadian Medical Association has advocated for a minimum age of 21 due to the effect that cannabis can have on the developing brain [11]. There is tension with where to set the minimum age as two main objectives of legalization are to deter the illicit market while also restricting youth access. Setting an age too high may push younger consumers into the illicit market while an age too low could proliferate the harm concerns raised by the Canadian Medical Association. So far, two provinces have officially signaled that they will set their minimum age at 19 will others have signaled that they will set their minimum age at 18 as to match alcohol and tobacco legal purchasing age [2,12,20]. 3.1.2. Driving under the influence A second policy consideration that is leaving legislators concerned is how to deal with driving under the influence of cannabis [1]. There is a lack of conclusive evidence on the effects of cannabis consumption on driving which runs in tandem with a lack of accurate testing mechanisms to determine whether an individual is driving while impaired [13]. While driving under the influence of any drug is illegal and subject to serious penalties there is no precise way of testing cannabis impairment [14]. Canadian surveys have suggested that those who drive while under the influence of cannabis are twice as likely to crash is comparison to non-users which signal a need for regulation [13]. Law enforcement agents have dealt with individuals driving under the influence of illegal cannabis for decades and this will be an area of policy development to watch moving forward; especially as novel reports generated from Colorado, where cannabis is legal, have found that over 50% of legal cannabis users have driven high in the past 30 days [14]. With a lack on conclusive evidence on the individualized effects that cannabis can have on driving ability there is a further lack of direction from the Canadian government on how this policy consideration will be tackled. The issue of impaired driving is one which touches jurisdictions across the world and Canada has yet to verbalize or signal how it plans to tackle driving while under the influence which may present constitutional legal challenges moving forward among others. 3.1.3. Market creation As dialogue and cannabis policy begins to develop in Canada ensuring balance between commercialization and public health remains a key consideration and point of contention. While the legalization of recreational cannabis will enable a new market to develop, the underlying ethos advocated for by the Task Force and directed via the Cannabis Act is one grounded in public health [2,9].
With public safety and harm minimization underpinning the move to a legalized market, determining how best to set up access and sale remains a fundamental element in regulation [2]. Fueled by the proliferation of grey market “medical” dispensaries and market systems developing ahead of legalization, there remains a question as to the most appropriate market model [15]. The Task Force formally recommended that cannabis not be co-located with alcohol or tobacco stores, have well-trained and knowledgeable staff in charge of selling, ensure access to a mail order system, have a limit on store density, and ensure selling locations are an appropriate distance from community centers, parks, and schools [2]. Table 1 highlights the three main market models under consideration in Canada. A government run monopoly would create a solely public market with complete government control over cannabis sale, a private market would see little to no government involvement in the sale of cannabis letting the free market sort itself out, and a hybrid model would see a partnership between government and private industry. All three models of market creation would adhere to legal requirements as directed by the Cannabis Act and subsequent Provincial regulations but vary in the amount of governmental control and oversight. While the dynamics and specifics of market development for recreational cannabis are still being determined in Canada, brick and mortars stores in addition to online selling platforms will be utilized to sell recreational cannabis. Table 1 highlights the potential advantages and disadvantages of each model of market development. These three models have been discussed as potential market frameworks for Canadian provinces to sell and distribute cannabis upon legalization [22,23,26,28]. The public model has been adopted by most East Coast provinces and will see the existing liquor corporations take full control of cannabis distribution, sale, and oversight providing a singular stream for recreational cannabis. The liquor corporations will sell cannabis alongside alcohol in brick and mortars stores as well as through online platforms. No province has signaled a solely private market. The hybrid model, one in which the government and private industry work together has been advocated for across the country and is likely to be adopted in Western provinces [22,23]. An example of the hybrid model would be governments providing licenses to private companies that enable cannabis sale and/or distribution. In addition to selecting the most appropriate market model an issue that is becoming more realizable as legalization moves closer is the existing gap between demand and production [16]. The current production of legal cannabis in Canada occurs in the medical space, with potential producer’s going through a stringent application and licensing process through the federal regulatory body,
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Health Canada. In order to ensure recreational cannabis is available this process is being progressively scaled up, with Health Canada doubling the amount of licenses it approved in the last year [24]. The goal is to ensure an adequate and quality supply of recreational cannabis to meet the demands of the new market in addition to deterring the illicit market. While experts agree that there will be a shortage in the months following legalization the hope is to close the gap and push out the illicit market with quality cannabis [16]. Close adherence to the supply and demand dynamics of this newly created market will be useful to other jurisdictions, in that Canada will be the first of this scope in the world. Finding the balance between meeting consumer demand, ensuring a safe and quality product, and hedging out the illicit market will be a dynamic that will require active oversight. 3.1.4. Maintaining a medical framework A final consideration will be the need to maintain the integrity of the medical cannabis framework while also enabling a legal recreational market to flourish. The Task Force has recommended maintaining a dual system, while also calling for increased promotion and support of sound research into the medicinal properties of cannabis [2]. A dual-system has been further supported by researchers, physicians, and patients due the fundamental difference that a medical cannabis access program has in comparison to a recreational legal market [17]. One is centered on providing a therapeutic intervention, while the other focuses on use for recreational and social purposes. Cannabis in the clinical space has proven to be a viable treatment option for many Canadians and maintaining the integrity of the medical access program is an important health policy consideration moving forward [2,17]. What remains to be seen is if the infrastructure for these two systems will differ, in addition to how the government will ensure that medical cannabis remains accessible when the recreational market becomes legal. In jurisdictions where the medicinal cannabis market is being implemented and regulated, looking to a well-established Canadian market can prove useful in terms of policy development. The dynamics of the medical market will shift in Canada after legalization and tracking these changes will be a necessary step for governments to ensure that medical need is being met appropriately and adequately. 3.2. Conclusion The Canadian governments plan to legalize and regulate recreational cannabis by July 2018 is an unprecedented change in North American and Internationally. The new policy is rooted in the recognition of failure that criminal prohibition has had on cannabis utilization, and the subsequent need to re-focus policy and regulation on health impacts and public safety. Legalization through the creation of a strict regulatory environment aims to re-focus the way in which the Canadian government responds to cannabis use and align drug policy with actual societal practices. The specifics of this new policy are still being drafted, debated, and discussed, as a wide range of stakeholders engage with the hopes that the new regulatory environment will meet its objectives of public health and safety. With other countries around the world struggling with high rates of illegal cannabis consumption the spotlight will be on Canada as it makes the move to legalization. Acknowledgements The work was conducted through the bursary support of the Schulich Academic Excellence Internship Award and through the subsequent allocation of research space at the Hastings Center.
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References [1] Government of Canada, (n.d). Health: Cannabis: Introduction of the Cannabis Act: Questions and Answers 2018. Retrieved from: https://www.canada.ca/ en/services/health/campaigns/introduction-cannabis-act-questions-answers. html. [2] Government of Canada. A framework for the legalization and regulation of cannabis in Canada; 2016. Retrieved from https://www.canada.ca/en/services/ health/cannabis-cannabis/task-force-cannabis-legalization-regulation/ framework-legalization-regulation-cannabis-in-canada.html. [3] Leung L. Cannabis and its derivatives: review of medical use. J Am Board Fam Med 2011;24(4):452–62. Retrieved from http://www.jabfm.org/content/24/4/ 452.full. [4] Parker Rv. ONCA, 49 O.R (3d) 481; 2000. Retrieved from https://www.canlii. org/en/on/onca/doc/2000/2000canlii5762/2000canlii5762.html. [5] Health Canada, (n.d). Medical Use of Cannabis. Retrieved from: http://www. hc-sc.gc.ca/dhp-mps/marihuana/index-eng.php. [6] Global News. Number of medical cannabis users soar across Canada, now almost 130k; 2017. Retrieved from http://globalnews.ca/news/3268705/ number-of-medical-cannabis-users-soars-across-canada-now-almost-130k/. [7] Patrick Cain for Global News. Pot dispensaries are sprouting up all over Canada. Here’s why; 2017. Retrieved from http://globalnews.ca/news/2645660/incanadas-illegal-pot-market-a-legalized-future-takes-shape/. [8] Betsy Powell for The Toronto Star. Toronto pot shop raids: huge success or costly attack?; 2017. Retrieved from https://www.thestar.com/news/city hall/ 2017/04/07/toronto-pot-shop-raids-huge-success-or-costly-attack.html. [9] Parliament of Canada. House of Commons of Canada: bill C-45: an act respecting cannabis and to amend the CDSA, Criminal Code, and other Acts; 2017. Retrieved from http://www.parl.ca/DocumentViewer/en/42-1/bill/C-45/firstreading. [10] Osborne G, Fogel C. Perspectives on cannabis legalization among recreational users. Contemp Drug Prob 2017;44(1), Canadian http://dx.doi.org/10.1177/0091450916670393. Retrieved 2017. [11] Kelsall D. Cannabis legalization fails to protect Canadas youth. Can Med Assoc J 2017;189(2), http://dx.doi.org/10.1503/cmaj.170555. Retrieved 2017. [12] Alexander Quon for Global News. N.B. to set legal cannabis age at 19, sale through crown corporation; 2017. Retrieved from http://globalnews.ca/ news/3544709/n-b-to-set-legal-cannabis-age-at-19-sale-through-crowncorporation/. [13] Brubacher J. Cannabis and motor vehicle crashes. BCMJ 2011 http://www.bcmj. org/council-health-promotion/cannabis-and-motor-vehicle-crashes. [14] Abigail Abrams for Time. Colorado’s cannabis DUIS are down 33%; 2017. Retrieved from http://time.com/4749802/colorado-cannabis-dui-drop33-percent-2017/. [15] Solomon Israel for CBC News. Cannabis industry gets boost from legalization; 2017. Retrieved from http://www.cbc.ca/news/business/cannabis-businesseslegalization-date-1.4042599. [16] Jacquie Miller for Ottawa Citizen. Canada’s legal pot market won’t be able to meet the staggering demand if legalization happens next year: experts; 2017. Retrieved from http://ottawacitizen.com/news/local-news/ expect-some-empty-shelves-and-lineups-when-canada-legalizes-pot. [17] Cairns E, Kelly M. Why support a separate medical access framework for cannabis? CMAJ 2017;189(28), http://dx.doi.org/10.1503/cmaj.170427. Retrieved 2017. [18] CCIC. (n.d). Marihuana Medical Access Regulations. Retrieved from: http:// www.ccic.net/index.php?id=107,804,0,0,1,0. [19] Government of Canada. Market data: licensed producers; 2018. Retrieved from https://www.canada.ca/en/health-canada/services/drugs-health-products/ medical-use-marijuana/licensed-producers/market-data.html. [20] Patrick Cain for Global News. Setting the cannabis age at 19 is not practical at all’ lawyers says; 2017. Retrieved from https://globalnews.ca/news/3786997/ marijuana-legalization-age-19-loopholes-ontario/. [22] CBC News. How the provinces are planning for pot legalization; 2017. Retrieved from http://www.cbc.ca/news/canada/province-pot-marijuanalegal-1.4405084. [23] Financial Post for the Canadian Press. The user guide to legal pot in all Canada’s provinces, territories; 2017. Retrieved from http://business.financialpost. com/commodities/a-brief-look-at-provincial-approaches-to-recreationalmarijuana-sales. [24] Global News. Ottawa to more than triple cannabis licenses to boost production; 2017. Retrieved from https://www.theglobeandmail.com/news/politics/ federal-government-cannabis-production-licences/article37391066/. [25] Pacula R, et al. Developing public health regulations for marijuana: lessons from alcohol and tobacco. Am J Public Health 2014;104(6), http://dx.doi.org/10.2105/AJPH.2013.301766. [26] Haden M, Emerson B. A vision for cannabis regulation: a public health approach based on lessons learned from the regulation of alcohol and tobacco. Open Med 2014;8(2). [28] Julie MacEachern for Nova Scotia Government & General Employees Union. Cannabis distribution in Canada: a literature review of the policy options and potential implications for public health; 2017. Retrieved from https://www. nsgeu.ca/filemanager/pdf/NSGEUCannabisReport.pdf.
Contents lists available at ScienceDirect
Health Policy journal homepage: www.elsevier.com/locate/healthpol
Health Reform Monitor
The Canadian Cannabis Act legalizes and regulates recreational cannabis use in 2018夽 Chelsea Cox a,b,∗ a b
Dalhousie University, Schulich School of Law 6061 University Ave, Halifax, NS, Canada
a r t i c l e
i n f o
Article history: Received 22 August 2017 Received in revised form 9 January 2018 Accepted 10 January 2018 Keywords: Cannabis Legalization Drug policy Drug reform
a b s t r a c t Canada is on the cusp of an unprecedented change in its governmental approach to recreational cannabis consumption. By July of 2018 the country will legalize and regulate recreational cannabis use across the country via the implementation of the Cannabis Act, representing the second country in the world and the first in North America to do so. With almost half of Canadians having admitted to using the drug illegally, this change in policy has been long advocated. While medical cannabis has been legal since 2001 this represents the first time in recent history that recreational cannabis will be legal on a federal level. As the country moves away from criminal prohibition into a framework centered on harm minimization and public health and safety, the policy specifics are being worked out by a variety of stakeholders. With limited peer-reviewed research and similar regulatory schemes to shape the Cannabis Act off of, Canada is entering unchartered territory. As other countries around the world struggle with illegal cannabis consumption, the Canadian example and novel regulatory scheme could prove a useful guiding tool for future policy in other jurisdictions. The following paper discusses key areas to watch and a brief intro of how Canada got to where it is and the foundational need for a shift in policy. © 2018 Elsevier B.V. All rights reserved.
1. Policy introduction Recreational cannabis use has been the subject of criminal sanctions over the past century creating societal tension between those that use cannabis socially and the resulting criminal law penalties. Cannabis has been used recreationally for thousands of years yet it’s illegality continues to be maintained by governments internationally. Despite the drugs illicit status in Canada, almost half of Canadians have admitted to using the drug, signalling a disconnect between the current law and actual societal practices. This disconnect has spurred government action, engaged policy-makers, and highlighted the need for regulatory change in Canada. In 2015 the current Trudeau-led government stated that they will federally legalize and regulate recreational cannabis sale and use by July 2018 [1]. This will make Canada the second country in the world to legalize and regulate the drug’s consumption in a recreational capacity on a federal level. Uruguay became the first country in the world
夽 This is a EUROB funded article. ∗ Correspondence to: 61 Town Rd, Falmouth NS B0P1L0, Canada. E-mail address: [email protected] https://doi.org/10.1016/j.healthpol.2018.01.009 0168-8510/© 2018 Elsevier B.V. All rights reserved.
in 2015 to legalize recreational cannabis as a tactical response to a powerful illicit market and high crime rates associated with the drug sales. Canada’s plan to federally legalize and regulate recreational cannabis sale and use marks a fundamental shift in policy, with the overarching aim to align public health and community safety with actual societal usage. While eight states in the US allow regional, state-level access to recreational cannabis, Canada is planning an unprecedented federal change, reforming and regulating cannabis use and sale across the country. Many countries around the world allow criminal exemptions for those using cannabis in a medical capacity, however its use recreationally remains illegal. By removing criminal sanctions for consumption and enforcing a regulatory framework, the Canadian government will aim to place the focus on public health and education rather than criminal prosecution [1]. In 2015 the Canadian government officially signaled that the current prohibitory approach to cannabis had been unsuccessful and formally committed to legalization with the goal of July 2018 [1]. Moving from a prohibition model to one of legalization will allow the federal focus to be placed on harm minimization, restricting youth access, social education, and maintaining public health and safety as central policy tenements [1].
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C. Cox / Health Policy 122 (2018) 205–209
Fig. 1. Medical Cannabis Registrations from 2001-present.
2. Medical and quasi-medical cannabis in practice Canada’s commitment to legalize and regulate recreational cannabis marks a significant shift in Canadian policy. The government will not only enable personal consumption and possession of the substance but will also introduce a regulatory framework for manufacturing, distribution, sale, and marketing. Legal recreational cannabis access and use will run alongside an established medical exemption in Canada. Medicinal cannabis, or cannabis use as directed by a health-care practitioner, has been legal in Canada for over fifteen years as directed by a decision in 2001 from a provincial-level court which lifted the blanket prohibition on cannabis on the basis that it deprived an individual’s constitutional right to make decisions regarding their healthcare interventions [3,4]. This court ruling sparked the implementation of the Marihuana Medical Access Regulations which laid the federal regulatory framework for enabling medical cannabis users to be exempted from criminal penalties for cannabis possession [5]. In 2001, after the implementation of these regulations, 100 citizens were granted access to legal medicinal cannabis. That number has increased substantially over time to 37,800 in 2013 and reaching over 200,000 in 2017 [5]. A further regulatory change in medical cannabis access occurred in 2014, minimizing the role of government in the regulation of cannabis within the medical community. Prior to 2014 each person applying for a medical exemption was required to receive special access from Health Canada, the federal regulatory body. In 2014, the regulations minimized the government’s role as gate keeper, leaving pricing schemes and the distribution of medical cannabis up to private industry while also placing the onus on physicians to decide when prescribing was appropriate based on limited peer-reviewed research and an increasing demand from Canadians seeking a legal way to use cannabis [5]. In tandem with this regulatory change, the government publically announced its future plan to legalize recreational cannabis [1]. These two events shifted the cannabis regulatory landscape in Canada, resulting in an escalation from those seeking legal access to the cannabis via the medical exemption irrespective of whether their need was fundamentally medically-based [6]. Over 200,000 people accessed cannabis through a medical exemption in 2017 with that number rising in 2018 as shown in Fig. 1 [6,18,19]. The exponential increase in Canadians seeking access to a legal form of cannabis through medical exemptions has enabled a grey area of quasi-recreational cannabis use to proliferate under the guise of medical allowance. Fig. 1 depicts the growth over time of Canadians granted medical access to cannabis. The latest released market data from Health Canada places the total number of medical client registrations at 235,621 at the end of 2017 and into 2018–an exponential growth
from 100 registrations in 2001 when medical cannabis was first legally exempted [6,19]. This graph represents the significant growth in Canadians granted medical access to cannabis and exemption from criminal penalties [6,18,19]. Individuals are able to possess, use, grow and/or purchase cannabis legally with a medical exemption. This number has risen exponentially, rising from 100 in 2001 to over 200,000 in 2017 [19]. This has resulted in a cannabis regulatory environment rift with public misconceptions. With the federal government signalling that recreational cannabis use will soon be legal while simultaneously maintaining the substances illicit status, Canadians are unsure of the current legality of the substance. The country has seen a significant increase in “medical” cannabis dispensaries, “medical” mail-order cannabis services, and other grey market stakeholders operating under the exempted allowance umbrella of medical cannabis, while in reality servicing those using cannabis recreationally. These early market stakeholders are positioning themselves within the legal medical market in hopes of gaining access to the legal recreational market in 2018 [7]. Despite operating in the public eye these cannabis distribution services are still considered criminal activity however, various provinces have taken various approaches in dealing with these grey areas businesses. Police raids, by-law implementation, and disregard and allowance by municipalities are all approaches taken by different provinces in relation to the current sale of cannabis through dispensaries storefronts [7,8]. Illegal or not, these storefronts and points of sale have become an established method of “medical” cannabis distribution as legalization of recreational cannabis looms and Canadian seek access to the drug. This disconnect between public perception, market development, and police intervention showcase the current tangled cannabis atmosphere in Canada. As a response to this climate of disconnect and to help solidify how legalization should take form moving forward, the Canadian government formed a cannabis legalization Task Force in June of 2016 to engage the public and formulate a framework for regulating recreational cannabis [2]. The findings of the Task Force culminated in a 100-page report that discussed policy considerations ranging from ensuring a safe supply chain of cannabis to recommendations for appropriate tax schemes [2]. The Task Force actively involved Canadian citizens via a public consultation process which ran alongside the involvement of key stakeholders ranging from Indigenous representatives to the Canadian Medical Association [2]. The result of the Task Force’s work has helped form the foundational framework that the federal government is currently working within as it begins to draft the Cannabis Act via Bill C-45. This Act will enable legal recreational cannabis consumption, sale, and possession across the country [9].
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Fig. 2. Spectrum of Drug Policy Options.
3. From prohibition to regulation The underlying rationale for the change from one of prohibition to one of regulation can be found in the preliminary wording of the prospective Cannabis Act [9]. The objective of the Act is rooted in redirecting focus and resources from criminal prohibition to governmental regulation. The goal of legalization and regulation is to minimize the associated harms with an illicit market, restrict youth access, establish a proper safety and quality regulatory environment, deter and eventually eliminate the illicit market, and reduce the burden that prohibition has placed on the criminal justice system [9]. Legalization, when viewed as a graph (Fig. 2) is regarded as the most capable regulatory framework in providing the balance of public health goals and criminal market deterrence [2]. As illustrated in Fig. 2, the relationship between the potential social and health harms of cannabis and spectrum of potential drug policy intervention (ranging from ultra-prohibition to commercial promotion) favors strict legal regulation rather than the current legal prohibition. This level of government regulation and oversight acknowledges that cannabis use will occur regardless of criminal sanctions seeking instead to minimize associated harms and ensure a strict and controlled regulatory environment. The shaded green area labelled ‘strict legal regulation’ represents where Canada aims to fall as it implements its new cannabis policy framework in July 2018 [2]. It is within this space that stakeholders agree the objectives of the prospective Cannabis Act can be met. ‘Prohibition with harm reduction/decriminalization’ follows models seen in Portugal and the Netherlands but lacks the governmental oversight, involvement, and regulation that Canadians seek. ‘Light market regulation’ on the other hand would allow the market to sort itself out with little governmental regulation [2]. This level of control is also undesirable due to the multiple unknowns associated with cannabis use and the potential risks that have come to fruition with Big Tobacco when governments take a hands off approach to regulation [2]. Strict legal regulation is rooted in strong governmental oversight and seeks to limit harms, diminish illicit market activity, and enable policy makers to tread carefully into unchartered territory while maintaining control. This is a marked change from past medical cannabis regulation which only exempted those who used and possessed cannabis from criminal sanctions. The federal government is not only lifting the criminal ban on recreational cannabis use and possession but will also take an active role in cannabis regulation across lev-
els of consumption from seed to sale. The government will play a fundamental role in cannabis manufacturing, distribution, marketing, and purchasing [2,9]. With high social support for this form of regulation the future implementation of the Cannabis Act seeks to align Canadian public opinion and practices with appropriate policy intervention and regulation [10]. 3.1. Policy implementation: considerations & discussion As Canada moves forward in the drafting of the Cannabis Act there remains little background evidence to inform how the new policy and regulations should be developed and drafted. There are no modern examples in the world of legal cannabis regulation on a federal level that mirror the scope that Canada is attempting to achieve [25]. While the Task Force looked to jurisdictions where recreational cannabis has been legalized for guidance, there remains minimal federal guidance for a nationwide approach of this scale [2]. What has occurred as a result of the lack of analogous comparators are parallels to be made between recreational cannabis regulation and alcohol regulatory schematics. Infrastructure and regulatory bodies currently in place for alcohol are being positioned to help support and direct regulatory considerations for recreational cannabis [25,26]. While each province in Canada will be separately responsible for setting up their own regulations regarding retail and utilization, the following areas of consideration cut across the country and have been given considerable discussion as legalization moves closer. 3.1.1. Minimum age The prospective Cannabis Act will federally regulate how cannabis can be produced, marketed, and distributed, however policies surrounding consumption will be left to Canada’s thirteen individual provinces and territories [1]. This mirrors alcohol regulation in Canada. Allowing individual provinces to determine consumption schemes ensures that they are adaptive and reflective of each provinces distinct demographic however it can also cause inconsistencies across the country. A current example of this is the consumption age of alcohol in the Canada; in some provinces an 18-year old is considered legal drinking age while in others it is 19. Current discussions are being held as to what the appropriate legal age should be for cannabis consumption moving forward. The Federal Task Force has recommended an age no younger than 18, taking into account a wide variety of stakeholder responses [2].
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Table 1 Potential Models of Market for Recreational Cannabis Sale. MODEL
Potential Advantages
Potential Disadvantages
Jurisdictions
Public (Government Monopoly)
• Existing infrastructure • Expertise in restricted substances • Government control and public health grounded focus
• Co-location of alcohol and cannabis • Lack of competition to hedge out illicit market (monopoly market)
• Nova Scotia • New Brunswick • Ontario
Private (Commercial free market)
• Expertise and knowledge of cannabis • Flexible to market needs • Competition drives prices and product innovation
• Minimized government involvement • Driven by profit rather than public health objectives
• Colorado
Hybrid (Government & private industry)
• Existing infrastructure with free market capabilities • Combines government oversight with cannabis expertise
• Potential to inadequately hedge out illicit market
• British Columbia • Manitoba
While the Task Force recommended no younger than 18, the Canadian Medical Association has advocated for a minimum age of 21 due to the effect that cannabis can have on the developing brain [11]. There is tension with where to set the minimum age as two main objectives of legalization are to deter the illicit market while also restricting youth access. Setting an age too high may push younger consumers into the illicit market while an age too low could proliferate the harm concerns raised by the Canadian Medical Association. So far, two provinces have officially signaled that they will set their minimum age at 19 will others have signaled that they will set their minimum age at 18 as to match alcohol and tobacco legal purchasing age [2,12,20]. 3.1.2. Driving under the influence A second policy consideration that is leaving legislators concerned is how to deal with driving under the influence of cannabis [1]. There is a lack of conclusive evidence on the effects of cannabis consumption on driving which runs in tandem with a lack of accurate testing mechanisms to determine whether an individual is driving while impaired [13]. While driving under the influence of any drug is illegal and subject to serious penalties there is no precise way of testing cannabis impairment [14]. Canadian surveys have suggested that those who drive while under the influence of cannabis are twice as likely to crash is comparison to non-users which signal a need for regulation [13]. Law enforcement agents have dealt with individuals driving under the influence of illegal cannabis for decades and this will be an area of policy development to watch moving forward; especially as novel reports generated from Colorado, where cannabis is legal, have found that over 50% of legal cannabis users have driven high in the past 30 days [14]. With a lack on conclusive evidence on the individualized effects that cannabis can have on driving ability there is a further lack of direction from the Canadian government on how this policy consideration will be tackled. The issue of impaired driving is one which touches jurisdictions across the world and Canada has yet to verbalize or signal how it plans to tackle driving while under the influence which may present constitutional legal challenges moving forward among others. 3.1.3. Market creation As dialogue and cannabis policy begins to develop in Canada ensuring balance between commercialization and public health remains a key consideration and point of contention. While the legalization of recreational cannabis will enable a new market to develop, the underlying ethos advocated for by the Task Force and directed via the Cannabis Act is one grounded in public health [2,9].
With public safety and harm minimization underpinning the move to a legalized market, determining how best to set up access and sale remains a fundamental element in regulation [2]. Fueled by the proliferation of grey market “medical” dispensaries and market systems developing ahead of legalization, there remains a question as to the most appropriate market model [15]. The Task Force formally recommended that cannabis not be co-located with alcohol or tobacco stores, have well-trained and knowledgeable staff in charge of selling, ensure access to a mail order system, have a limit on store density, and ensure selling locations are an appropriate distance from community centers, parks, and schools [2]. Table 1 highlights the three main market models under consideration in Canada. A government run monopoly would create a solely public market with complete government control over cannabis sale, a private market would see little to no government involvement in the sale of cannabis letting the free market sort itself out, and a hybrid model would see a partnership between government and private industry. All three models of market creation would adhere to legal requirements as directed by the Cannabis Act and subsequent Provincial regulations but vary in the amount of governmental control and oversight. While the dynamics and specifics of market development for recreational cannabis are still being determined in Canada, brick and mortars stores in addition to online selling platforms will be utilized to sell recreational cannabis. Table 1 highlights the potential advantages and disadvantages of each model of market development. These three models have been discussed as potential market frameworks for Canadian provinces to sell and distribute cannabis upon legalization [22,23,26,28]. The public model has been adopted by most East Coast provinces and will see the existing liquor corporations take full control of cannabis distribution, sale, and oversight providing a singular stream for recreational cannabis. The liquor corporations will sell cannabis alongside alcohol in brick and mortars stores as well as through online platforms. No province has signaled a solely private market. The hybrid model, one in which the government and private industry work together has been advocated for across the country and is likely to be adopted in Western provinces [22,23]. An example of the hybrid model would be governments providing licenses to private companies that enable cannabis sale and/or distribution. In addition to selecting the most appropriate market model an issue that is becoming more realizable as legalization moves closer is the existing gap between demand and production [16]. The current production of legal cannabis in Canada occurs in the medical space, with potential producer’s going through a stringent application and licensing process through the federal regulatory body,
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Health Canada. In order to ensure recreational cannabis is available this process is being progressively scaled up, with Health Canada doubling the amount of licenses it approved in the last year [24]. The goal is to ensure an adequate and quality supply of recreational cannabis to meet the demands of the new market in addition to deterring the illicit market. While experts agree that there will be a shortage in the months following legalization the hope is to close the gap and push out the illicit market with quality cannabis [16]. Close adherence to the supply and demand dynamics of this newly created market will be useful to other jurisdictions, in that Canada will be the first of this scope in the world. Finding the balance between meeting consumer demand, ensuring a safe and quality product, and hedging out the illicit market will be a dynamic that will require active oversight. 3.1.4. Maintaining a medical framework A final consideration will be the need to maintain the integrity of the medical cannabis framework while also enabling a legal recreational market to flourish. The Task Force has recommended maintaining a dual system, while also calling for increased promotion and support of sound research into the medicinal properties of cannabis [2]. A dual-system has been further supported by researchers, physicians, and patients due the fundamental difference that a medical cannabis access program has in comparison to a recreational legal market [17]. One is centered on providing a therapeutic intervention, while the other focuses on use for recreational and social purposes. Cannabis in the clinical space has proven to be a viable treatment option for many Canadians and maintaining the integrity of the medical access program is an important health policy consideration moving forward [2,17]. What remains to be seen is if the infrastructure for these two systems will differ, in addition to how the government will ensure that medical cannabis remains accessible when the recreational market becomes legal. In jurisdictions where the medicinal cannabis market is being implemented and regulated, looking to a well-established Canadian market can prove useful in terms of policy development. The dynamics of the medical market will shift in Canada after legalization and tracking these changes will be a necessary step for governments to ensure that medical need is being met appropriately and adequately. 3.2. Conclusion The Canadian governments plan to legalize and regulate recreational cannabis by July 2018 is an unprecedented change in North American and Internationally. The new policy is rooted in the recognition of failure that criminal prohibition has had on cannabis utilization, and the subsequent need to re-focus policy and regulation on health impacts and public safety. Legalization through the creation of a strict regulatory environment aims to re-focus the way in which the Canadian government responds to cannabis use and align drug policy with actual societal practices. The specifics of this new policy are still being drafted, debated, and discussed, as a wide range of stakeholders engage with the hopes that the new regulatory environment will meet its objectives of public health and safety. With other countries around the world struggling with high rates of illegal cannabis consumption the spotlight will be on Canada as it makes the move to legalization. Acknowledgements The work was conducted through the bursary support of the Schulich Academic Excellence Internship Award and through the subsequent allocation of research space at the Hastings Center.
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