17 Apr
17 April 2017 Adam Rodgers

An updated look at Cannabis Legalization in Nova Scotia following introduction of the Federal Cannabis Act

The federal government has adopted the main recommendations of the Task Force on Cannabis Legalization and Regulation, and has introduced the Cannabis Act to legalize the recreational use of marihuana by adults in Canada.  Cannabis will be available for sale, and people will be able to grow up to four plants of their own.

While many would see the legalization of cannabis as a victory for personal freedom, the government has instead presented their legislation as both a vehicle for protecting youth from the substance, and also a way of keeping the economic benefits of cannabis out of the hands of organized crime. The government has also announced that they will continue to prosecute non-medical possession of marihuana until as late as July, 2018.

Rather than an enthusiastic and fulsome fulfillment of their campaign promise, this legislation represents an effort to enact the minimum Charter-compliant version of legalization.

Both in having no transitional measures to deal with existing prosecutions, and by presenting legalization as a way to keep marihuana away from young people (strained logic at best) the government is signaling that it will continue to strictly prosecute violations. They have also given no indications that they will issue pardons to those with existing cannabis-related criminal records.

Provincial jurisdiction

Though the legalization of marihuana for recreational use has been initiated and lead by the federal government, most of the practical aspects of how marijuana production and distribution will work involves provincial “property and civil rights” jurisdiction, and accordingly will be decided by provincial governments. They now have just over a year to have something in place.

The Nova Scotia government has not indicated whether they are going to adopt the recommendations from the Task Force on Cannabis Legalization and Regulation report. If they do, here is how the system would work;

Where will it be sold?

Much debate has centred on where people will be able to buy cannabis. The Cannabis Act does not determine this issue, leaving it to the provinces to decide. Despite reports suggesting that the NSLC or  pharmacies were considering plans for becoming distributors of cannabis, it appears most likely that stand-alone, privately operated dispensaries will be where people will be able to purchase cannabis and cannabis products in person. These operations are already setting up.

Mail order options were recommended by the Task Force, which said that “rural and remote” users may have difficulty accessing a dispensary. The Cannabis Act takes a more restrictive approach, saying that if an entire Province (not just a “rural and remote” region within a Province) has no system of retail access, uses could purchase through the mail from the federal system.

It will be for the Provincial government, along with municipalities (either individually or through the UNSM) to determine how close is too close to such things as schools or community centres (for example), or whether special zoning might be required.

Who can buy?

The Task Force recommended a minimum age of 18 for those allowed to purchase and consume cannabis, noting that this is a “well established milestone in Canadian society marking adulthood”. They also said, however, that they would leave it to provinces to modify this (upwards) as they see fit, and suggested that some may wish to match the age to the legal age for consumption of alcohol.

In Nova Scotia, of course, that would mean increasing the suggested age to 19. The Canadian Medical Association recommended age 21, but these submissions did not persuade the Task Force. So, for Nova Scotia, the likely outcome would be either 18 or 19 as a minimum age.

How will cannabis be produced?

The Cannabis Act does not answer the questions of how cannabis will be produced in Canada. The Task Force had recommended that production standards be regulated by the federal government, but that otherwise, the regulation of cannabis production will be left to the provinces, each of which could take their own approach.

The Task Force recommended a “competitive private-sector production model”, rather than a Crown Corporation model, be adopted. It also recommended that small-scale production be encouraged, in the interest of creating market diversity and “preventing the development of monopolies and large conglomerates”.

Whether for commercial production, or personal cultivation, the Task Force recommended that outdoor growing be permitted. This was seen as not only a measure to ensure production was not cost-prohibitive for small-scale producers, but also as a limit on the environmental impact of production.

If Nova Scotia follows the Task Force recommendations on production, it is foreseeable that this could be a significant economic engine for rural Nova Scotia. Encouraging small-scale production also provides an opportunity for Nova Scotia producers to grow and excel in a market that may become national (or international) in scope in the coming years.

What’s next?

The next, crucial, step is for Provinces to establish the regulatory market framework. The lack of any substantive public comment by the Nova Scotia government, or indication that planning might be underway to design such a system, suggests that there may be at least some passive reluctance to having an established cannabis marketplace in this province.

The Task Force on Cannabis Legalization and Regulation report has had a significant impact on the drafters of the Cannabis Act and the legislation appears to be Charter-compliant. If our Provincial government adopts the conclusions from the Task Force, our system will have a legitimate and balanced framework. An unduly restrictive model would almost certainly draw Charter-related litigation. This potential, among other reasons, will ensure that structural decisions by Provincial governments throughout Canada will be watched with great interest over the next year.