By Richard Forbes.
Featured image via Justin Tang, CP.
In a bid to meet one of his party’s most controversial promises, the Trudeau government tabled its cannabis legislation last week. The Cannabis Act would restrict the sale of cannabis to those over the age of eighteen with limited allowances for possession and homegrown production. The plan is a win for public policy, legalizing – rather than decriminalizing – cannabis will curb the black market in a way prohibition could never hope to accomplish. But passing federal measures to remove the criminal prohibition of cannabis – as the government intends to do over this legislative session – is the easy part: to make Ottawa’s plans for legalization a reality, the heavy lifting will be done by provinces and territories over the course of this year in preparing their regulatory frameworks for legal, recreational cannabis.
And so begins the difficult process of developing a path forward. If you listen closely enough, that sound you hear is the busybodies of a dozen provincial policy working groups penciling their impending plans…
Some Quebec Liberals have signaled their concerns that legalization may be pushing ahead too fast but both Quebec and Ontario, reportedly working in close association with each other on the issue, have remained tight-lipped with regards to the nature of the regulatory framework that their provinces will adopt.
Wisely, the Cannabis Act gives provinces control over cannabis sales and distribution, including the latitude to set a legal age higher than eighteen. It’s this latitude, the exercise of provincial autonomy on the issue, which ought to make legalization work as it has for alcohol. Provincial policymakers face different cultural contexts in their respective environments, residents have different sensibilities and the existing underground market is not distributed evenly across the country. A ‘top-down’ federal regulatory framework imposed unilaterally could hardly hope to be sensitive to these social divergences.
Where the cash-strapped Maritimes sees revenue potential in its midst – a sanguine Nova Scotia Premier Stephen McNeil saying his province will “meet the timeline that is there -” the Prairies are approaching the subject with caution, questioning the implications of legalization on law enforcement costs and roadside drug testing. Ironically, policymakers in British Columbia, where the cannabis market is most developed, appear the most nonplussed with regards to how to respond: legalization poses greater challenges for regulators in the province, they’ll be attempting to muscle into a crowded existing market. BC candidates on the campaign trail have remained rather mum on the legalization file.
The history of alcohol prohibition in Canada is instructive in these regards. Prohibition was a topic of great constitutional interest in post-confederation Canada, seemingly positioned in the vague intersections of crime and trade and commerce – the many court rulings and reference cases on prohibition would come to define the complex relationship between the federal and provincial powers and their jurisdiction over alcohol. When Laurier rose to power in 1896, the issue was being hotly pursued by evangelicals and the temperance movement, posing a challenge for Canada’s first francophone prime minister, whose home province, Quebec, shared little enthusiasm for temperance with English Canada.
He held a national referendum on prohibition reluctantly as per a campaign promise, but wisely elected to not pursue the matter further despite the referendum results favouring prohibition. The national vote was 51.3% for federal prohibition (shades of Brexit here) with the Maritimes strongly in favour (82.8%) versus Quebec, which was strongly against (81.2%) and Ontario, more tenuously in favour (57.3%.)
(In contrast, a cannabis referendum, if polls are to be believed, would be a landslide in today’s Canada: with the highest support in British Columbia [76.2%] and the lowest in the neighboring Prairies [62.1%.])
Laurier’s decision to not enact a federal prohibition upheld the strange constitutional circumstances left by the Canada Temperance Act passed two decades before. The Canada Temperance Act had granted municipalities the power to hold local plebiscites on prohibition: a federal delegation of authority which was challenged constitutionally in Russell v The Queen. That act of parliament was upheld as constitutional under the federal government’s residual powers – its responsibility to maintain “peace, order and good government -” but future challenges would emphasize the role that provinces ought to play in liquor licensing and the regulation of drinking establishments, carving out a place for provincial autonomy on the sensitive issue.
Within each province, the laws regarding alcohol have ebbed and flowed with the culture and public morals of the province; we should expect cannabis laws to change with time too rather than remain static.
Officially, PEI didn’t end its dry run until 1949. In Ontario, last year marked the first year beer would be sold in grocery stores. Now it seems every week the Ontario Liberals are announcing new permits for beer sales in grocery stores in a cheap bid to salvage their poll numbers – part and parcel of a tried and true Ontarian ritual of teasing liberalized alcohol before an election season. It’s that ritualistic tantalism which has transformed Ontario’s liquor laws over the past forty years.
Many readers will remember signing their order for the LCBO attendant on a shame-filled slip; said attendant would then bring your order out in a discreet paper bag from the backroom. It wasn’t until 1969 that the first self-service LCBO was opened to a hysterical province (the drinking age was lowered two years later), but counter service stores weren’t phased out completely in Ontario until the mid nineties. By that point, Ontario Premier David Peterson’s pledge to bring alcohol to convenience stores had come and gone with the fall of Peterson himself.
Certainly, federalism will pose challenges to implementing legalization. Some provinces seem set to stall on implementing their framework, using their vital role in its implementation to frustrate the federal government’s efforts. But Ottawa has a non-offensive response to straggling and non-compliant provinces: e-commerce – a novel use of technology and the nonspatiality of the internet to advance cooperative federalism.
Indeed, despite the headaches that federalism can cause in cases like cannabis legalization, it’s the same legal order that allows for sweeping changes like legalization to be introduced in Canada. Provinces and territories will spend the next year deciding how to implement Ottawa’s plans for legalization, finding the right fit for their cultures, their circumstances: what should the legal age be? Where and how will sales take place? Under what conditions will sales take place? Getting these questions right in Canada means accepting different answers for different regions of the country. Not only – given our unique priorities – will we ask different questions, we will answer with plans of action that reflect the societal change we’re comfortable with at this moment in time.
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The Ribbon 