Legalise It – Don’t Criminalise It: The Development of a Canadian Pot Policy

Amelia Bredo

In the recent federal election, the Liberal Party of Canada campaigned with the promise to “legalize, regulate, and restrict access to marijuana”. The current framework of criminalisation, the Liberals argued, traps too many non-violent offenders in the criminal justice system, which itself is expensive and supports organised crime, including the trafficking of hard drugs. They reasoned that by removing marijuana consumption and possession from the Criminal Code, creating new laws, and implementing a new regulatory framework, they could focus punishment on the most harmful activities, including the sale of this substance to minors. Furthermore, the creation of a federal/provincial/ territorial task force would ensure the best possible policy surrounding marijuana legalisation.

When the leader of the Liberal Party, Justin Trudeau, was elected Prime Minister with a majority government on October 19th, marijuana legalisation was not the first thing on most people’s minds. Many progressive Canadians were simply relieved to have finally escaped a Harper Government. After the big issues were contemplated, including an ambitious refugee plan that required immediate attention, some began to think, “Hey, wasn’t there supposed to be pot in corners stores or something by now?” While, during the election, the Conservative Party of Canada would have liked you to think this was the plan, marijuana legalisation is a process that will take many months of research and analysis before implementation is possible. And no, it probably won’t be available in neighbourhood convenience stores. Recent developments suggest that the Liberal Government has not, however, forgotten its legalisation promise.

Within the past few weeks, the legalisation of marijuana has re-entered the Canadian policy discussion. In mid-November, Manitoba Premier Greg Selinger suggested that the province’s liquor stores, specifically the chain retailer Liquor Mart, were the ideal place to sell marijuana to Canadians. Because the staff of Liquor Marts are already well-trained about the risks of alcohol, he reasoned, they would be similarly equipped to warn consumers about the potential risks of marijuana. He added that workers would not be required to consume the drug for descriptive purposes. In Ontario, where liquor reform is already on the radar, this may not be seen as a favourable option. Stringent limitations on liquor sales by the LCBO and The Beer Store are already matters of frustration. Ontarians are not likely to be eager to see another controlled substance enter the hands of what some consider to be quasi-monopolies.

In late-November, further developments for a potential pot policy were announced. Trudeau mandated Federal Health Minister Jane Philpott, Public Safety Minister Ralph Goodale, and Justice Minister Jody Wilson-Raybould, to construct a process for legalisation, with the aid of a federal/provincial/territorial task force that is yet to be created. In an interview with CBC News, Philpott conveyed the need to exercise caution in the implementation of a policy that continues to be controversial, while also agreeing that the current system is not working. The previous government’s “tough on crime” approach criminalised Canadians for minor offenses, and increased financial pressures on the criminal justice system. Philpott said that the task force would look to other jurisdictions where marijuana has already been legalised, such as Colorado and Washington State, though she stated that she has yet to see a perfect model.

Recreational marijuana use is currently legal in five US states, under varying degrees of regulation. The official Whitehouse website cautions Americans that marijuana use continues to be an offense under federal law, and that states themselves determine their own regulations regarding marijuana use. So far, Justin Trudeau’s promise of a federal task-force to investigate the best method for Canada-wide marijuana legalisation, eliminates this issue. Cohesion between the federal government and provinces will be key to ensuring that the black market in marijuana sales decreases in size and scope. Oregon, for example, where cannabis use is legal, continues to produce more marijuana than its pot-smoking citizens can consume. It is very likely that this excess in marijuana is being sold to Americans in states where marijuana use continues to be a criminal offense and, therefore, continues to bolster the black market. A nation-wide pot policy, as is under investigation in Canada, would significantly decrease this problem.

An assessment of American states where recreational marijuana use is legal, will assist Canadian researchers and policy makers in creating a more cohesive and successful model. Colorado and Washington State, which both implemented full legalisation in 2012, are the most well-known of these states. In Colorado, anyone over the age of 21, which is also the legal age to purchase and consume alcohol, may purchase marijuana from licensed marijuana retailers, and consume these products in areas that are not publicly accessible. Unlike the most well-known nation to legalise recreational marijuana use, the Netherlands, it is not legal to consume marijuana in public areas such as coffee shops. Furthermore, Colorado residents may purchase and be in possession of 1 ounce of marijuana at any given time, and non-residents may purchase ¼ ounce.

Although Colorado regulations guarantee that residents and tourists are strictly limited in the ways and places they produce, sell, purchase, and consume legal marijuana, major concerns regarding safety remain. The greatest of these concerns include the sale and regulation of edible marijuana products, as well as how to manage and limit occurrences of impaired driving. Edible marijuana products are a concern due to their general look of appeal to young children, and their high concentration of tetrahydrocannabinol (THC), the principal psychoactive agent in cannabis. Some states where recreational marijuana use is legal have reported an increase in the number of children admitted to hospital, and calls to poison-control hotlines regarding accidental marijuana use involving children. However, these numbers remain very low.

Another concern surrounding edible marijuana products is the regulation of ingredients, product packaging, and portion control. The American Center for Disease Control and Prevention (CDC) released a study in 2015 following the 2014 death of a Colorado man who jumped to his death after consuming an edible marijuana product. The cookie he consumed was labeled as containing “65 mg THC/6.5 servings”, though no message about the delayed effects of intoxication, as is expected when consuming edible marijuana products, was included on the packaging. Approximately 30-60 minutes after eating the cookie, and not yet feeling its effects, he reportedly consumed its remainder, and about 2.5 hours later he jumped off a fourth floor balcony. The report concluded that the delayed effects of THC-infused edibles may lead to the consumption of multiple servings in close succession which, in turn, can lead to greater intoxication and an “increased risk for adverse psychological effects.”

These findings, as well as the CDC’s estimate that 45% of Colorado’s marijuana sales are thanks to edible marijuana products, should encourage Canadian policy makers to enact stricter packaging laws than American states. All packaging of edible marijuana products should, for one, contain an advisory on the length of time it may take to feel the effects of the product, in addition to THC levels. Next, products should be packaged in single-serving portions. It should be obvious that one cookie, for example, is one serving.

How to best regulate and test for drug-impaired drivers is another issue that a Canadian pot policy will need to consider. What level of intoxication while driving a vehicle is acceptable? In Washington, five nanograms of THC per millilitre of blood, the equivalent of a blood alcohol level of .08, is the legal limit. Even with these regulations, it remains difficult for officers to test that drivers are within legal limits. Presently, the only way to know for certain if a person is above the legal limit is to perform a blood test, an act that needs to be court-ordered. Until a method for roadside marijuana testing is available, Canadian officers should be well-trained to recognize the effects of marijuana use, and should have greater abilities to order blood-work when a driver is suspected of being impaired.

The legalisation of recreational marijuana use should not be implemented without extensive research and analysis. Trudeau’s task-force must acknowledge and respond to the issues that American models are presently facing. The safety of the products that will be made available to Canadians, where they will be offered for purchase, and how their use will be regulated once legal, is of crucial importance. As federal health minister Jane Philpott told reporters in an interview with CBC news, “the world is going to be looking to Canada to make sure we do the job well.” For the sake of Canada’s reputation, and for the safety of Canadians, the legalisation of recreational marijuana use is unlikely to occur as soon as many citizens would hope.


Amelia Bredo is a 2017 Master of Public Policy Candidate at the School of Public Policy and Governance. She also holds an Honours Bachelor of Arts from the University of Toronto with a double major in English and History. Her policy interests include immigration, corrections, and social policy. 

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