The Power of Perspectives

The Canadian Bar Association

Kim Covert

Cannabis Working Group comments on proposed regulations

February 27 2018 27 February 2018

 

The federal government continues to line up its ducks as its self-imposed 2018 deadline for cannabis to become legal in Canada quickly approaches.

The government released a consultation document, Proposed Approach to the Regulation of Cannabis, in November, focusing on licences, security clearances, tracking and reporting, products, packaging and labelling, medical use and health products.

The CBA Working Group on Cannabis commented on the consultation document in a recent submission, the latest in a line of submissions urging changes to the way Canada treats possession and use of marijuana dating back to 1978.

The Working Group on Cannabis includes representatives of the Administrative, Business, Commodity Tax, Constitutional & Human Rights, Criminal Justice, Health, and Labour & Employment Law Sections and the Children’s Law Committee.

The latest consultation document asked for input on questions such as where to draw the line between micro- and standard cultivators and processors, how to go about licensing for a diverse, competitive industry, and whether proposed rules and requirements for different categories of authorized activity hit the mark.

The document also asks for feedback on proposed requirements for security clearances for people working in various categories in the cannabis industry. Its rationale is that clearances would mitigate the risk that individuals associated with organized crime would infiltrate licensed organizations for the benefit of criminal organizations. While the Working Group supports this objective, it warns against over-reach.

“Given the scale of the projected industry, some of the expertise required, e.g., master grower and quality assurance, will likely be found in persons who do not meet the proposed security clearance criteria,” the Working Group says.

Security clearances processes are expensive, time-consuming and will be a draw on limited law enforcement resources if they’re carried out on the scale proposed in the document, so the Working Group recommends a more limited approach.

Since the purpose of the Cannabis Act is to transition from an illicit industry to a legal one, and there’s a “greater likelihood of undermining the illicit market if opportunities exist to participate in the regulated market,” the Working Group suggests that each application for a security clearance should be based on its own merits, and that people with a past criminal history shouldn’t automatically be declared ineligible.

“We caution that attempts to draw bright lines based on conviction records risks perpetuating disadvantage for individuals and communities already disproportionately affected by the criminal justice system,” the Working Group says. “For example, there is considerable support for the view that Canada’s drug policies, and cannabis prohibition in particular, have contributed to a ‘cascading descent’ into the criminal justice system for racialized, poor and Indigenous Canadians.”

The Working Group also cautions against relying on non-conviction records, stays of proceedings and withdrawals, police records about gang affiliation, or the indirect consideration of convictions for which a pardon has been granted, when determining an individual’s eligibility for a security clearance.

On a related note, the Working Group is concerned about administrative due process.

“The consultation document suggests a regime for the Minister to make administrative decisions for issuing and placing conditions on licences, permits and authorizations. With few exceptions … it does not identify mechanisms for these decisions to be reconsidered, appealed or reviewed. There is robust jurisprudence in Canada on the requirements of procedural fairness for administrative decisions, which cannot be overlooked.”

The Working Group believes there is merit in creating a centralized mechanism such as an administrative tribunal for reviews and appeals of administrative matters.

Other matters addressed in the submission include medical marijuana, the ability of veterinarians to prescribe medical marijuana for animals, labelling and packaging of cannabis products and youth access to cannabis, among others.

The government has said that draft regulations will not be pre-published in the Canada Gazette due to time pressures, but the Working Group urges the government not to skip this important step in the normal regulatory process.

“Regulations play an important role in completing the scheme envisaged in the proposed Act and we think it is important to get them right. The consultation document has done an admirable job in identifying some key ideas, but inevitably suffers from a vagueness of concepts and lack of detail that can only be remedied by translating ideas into draft regulations. The potential consequences of gaps and ambiguity in the regulations are significant: criminal charges; forfeiture of employment and business interests; confusion; delay in obtaining redress for administrative decisions; and, ultimately, reduce effectiveness in displacing the illicit market.”

 

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