Drug Offences in Canada -- Emerging Issues Bulletin

Issue #4

Bruce A. MacFarlane, Robert J. Frater, Croft Michaelson

The Emerging Issues Bulletin in Drug Offences in Canada, 4th edition is intended to provide updates on notable drug policy, legislative and enforcement issues. These are issues that may have started to be addressed in case law in trial courts, or reflected in legislation just passed or being contemplated, or concerning new enforcement techniques by the police. By focusing on percolating issues, it is hoped that the section may alert practitioners to emerging legal challenges.

A sample from the most recent Bulletin is excerpted here. To continue reading from Drug Offences in Canada, 4th edition, sign up at the bottom of the screen for a free 14-day trial of CriminalSource on westlaw Canada.

The Road to Cannabis Legalization

The federal government’s announcement in the Speech from the Throne of December, 2015, that it would pursue legalization of marihuana, has led to a flurry of activity and highlighted the formidable obstacles on the road to legalization. The government’s Task Force on Cannabis Legalization and Regulation, whose report was released on November 30, 2016, recognized that the road may be a rocky one:

It will be a challenge for governments to manage the period between the coming into force of federal legislation, at which point cannabis will be legal, and the creation of regulations for the regime (in addition to the passing of provincial and territorial legislation and regulations). Some provinces and territories have urged that this period be as short as possible, to limit the growth of unregulated commercial activity.[1]

While the Task Force was focused on the period between the passing of the legislation and the creation of a full regulatory regime, the transitional problems may be even more acute in the here and now: after the policy has been announced and before any new law has been announced. For those who are anticipating a new regime, the day cannot come soon enough; for those who are concerned about the change, the present activity is a warning about further problems to come. Below, we deal with a number of areas illustrative of the difficult path to legalization.

Cannabis Dispensaries

No issue has received more attention than the proliferation of cannabis dispensaries. Such business initially catered to those requiring medical cannabis. With the announcement by the federal government that it intended to proceed with legalization, more businesses started opening in more towns and cities to service a wider clientele. The response of local governments has varied greatly. Some have immediately cracked down on such dispensaries to prevent them from operating; others have not considered it an enforcement priority. The City of Vancouver, where dispensaries were very numerous, decided to create by-laws to licence the businesses, charging entrepreneurs hoping to get in on the new “green rush”, $30,000 each.[2] Once the licensing by-laws were in place, Vancouver cracked down on those that had refused to pay, and thus were considered illegal businesses.[3]

A second problem for the businesses is the incidence of robberies. In Toronto, many have been the victims of violent robberies, but many have chosen not to report them, fearing attention from the police for a business of questionable legality.[4]

Canada’s International Commitments

Canada is a signatory to three multinational drug treaties[5] that require the signatories to criminalize possession of cannabis.[6] The Task Force noted that it was not within its mandate to advise the government as to how to address its international commitments. However, the International Narcotics Control Board (INCB), an independent body created by the 1961 Treaty to monitor compliance with drug treaties, visited Canada in October 2016. Among the topics discussed with federal government representatives, according to the INCB website,[7] was cannabis legalization. The website offers no details of the discussions, but promises that the discussions will be described in the 2016 Annual Report, expected in early 2017.

The American Experience

Legalization remains a highly contentious issue in the United States. Some states now have sufficient experience that statistics are now available on certain matters, and studies are starting to emerge analyzing that data. Because of the fierceness of the controversy, what the statistics show is subject to vigorous disagreement between the partisans on both sides of the legalization debate. Thus, if you want to read what the impact of legalization is in Washington State, you can read the report of the pro-legalization Drug Policy Alliance, which will tell you that the administration of justice is saving millions from the decline in marihuana offences, crime rates have decreased, the state has generated millions in revenues, and there has been no increase in youth use of cannabis.[8] On the other hand, the federally funded Northwest High Intensity Drug Area’s study details statistics about the rise of driving under the influence of cannabis, particularly by young adults (aged 18-25), and increased activity in THC extraction to produce high-intensity forms of cannabis.[9]

In Colorado, use of the statistics leads to the same sort of partisan debate. Perhaps the most realistic view is the sentiment expressed in a March, 2016 study by the Colorado Department of Public Safety, which began its report with an acknowledgement that “it is too early to draw any conclusions about the potential effects of marijuana legalization or commercialization on public safety, public health, or youth outcomes, and this may always be difficult due to the lack of historical data.”[10] Thus, the only certain advice we can provide for those looking to determine how legalization is playing out is that considerable caution is required in examining where the data came from, and who is doing the interpreting.

Cannabis for Pets

One of the most unusual emerging issues is whether there is room for a third market for cannabis, as a product for dogs, cats and other pets. Companies have sprung up in Canada and the United States to serve this potentially lucrative market. Cannabis for animals can come in two forms: medical marihuana, as consumed by humans, at a lower dosage;[11] or animal treats with cannabidiol, but no THC.[12] Needless to say, there are no studies to support claims of efficacy for pets, but the vendors say the products are popular.[13]

[1] "A Framework for Legalization and Regulation of Cannabis in Canada: The Final Report of the Task Force on Cannabis Legalization and Regulation" (A. Anne McLellan, Chair). Ottawa: Health Canada, 2016.

[2] "Vancouver Issues its First Licence to a Marijuana Dispensary", Globe and Mail, May 17, 2016 (http://www.theglobeandmail.com/news/british-columbia/vancouver-issues-first-business-licence-to-marijuana-dispensary/article30073025/).

[3] "Vancouver Shuts Down 22 Pot Dispensaries as Owners vow to Fight ‘Absurd’ Bylaw Crackdown", National Post, May 2, 2016 (http://news.nationalpost.com/news/canada/vancouver-shuts-down-22-pot-dispensaries-as-owners-vow-to-fight-absurd-bylaw-crackdown).

[4] "Police Urge Pot Dispensary Owners to Report Robberies", Toronto Star, January 23, 2017 (https://www.thestar.com/news/crime/2017/01/23/police-want-pot-store-owners-to-report-robberies.html).

[5] 1961 Single Convention on Narcotic Drugs (as amended by the 1972 protocol): the 1971 Convention on Psychotropic Substances; and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

[6] See, for example, Article 3(2) of the 1988 Convention.

[7] https://www.incb.org/incb/en/news/activities/activities.html.

[8] Drug Policy Alliance, “Marijuana Legalization in Washington State One Year after Retail Sales and 2.5 Years after Legal Possession” (July, 2015) (https://www.drugpolicy.org/sites/default/files/Drug_Policy_Alliance_Status_Report_Marijuana_Legalization_in_Washington_July2015.pdf).

[9] Northwest High Intensity Drug Area, “Washington State Marijuana Impact Report (March, 2016) (http://www.riag.ri.gov/documents/NWHIDTAMarijuanaImpactReportVolume1.pdf).

[10] Colorado Department of Public Safety, “Marijuana Legalization in Colorado: Early Findings” (March, 2016) (https://cdpsdocs.state.co.us/ors/docs/reports/2016-SB13-283-Rpt.pdf).

[11] ”Dogs and Medical Marijuana: Canadian Dogs website (http://cdndogs.ca/dogs-medical-marijuana/).

[12] See the website of Vancouver Island-based Mota “Cannabis Infused Products” (http://motacannabisproducts.ca/product/cbd-dog-cookies/ ); and Apawthecary Hemp Pet Treats, made by Apothecary Labs.

[13] ”Cannabis for Canines? Medicinal pot products a growing trend for Toronto pet owners”, CBC Online, November 30, 2016 (http://www.cbc.ca/news/canada/toronto/cannabis-for-pets-cbd-dispensaries-toronto-1.3873709).