Legal Recreational Pot? Addressing the details….

Justin Trudeau’s Liberal government won a majority in the recent federal election. Part of their platform that many Canadians paid particular attention to was their promise to legalize, regulate and tax recreational marijuana.

I walked by a bong, pipe and marijuana accessory store yesterday. They had a placard out on the sidewalk with large chalk letters on it stating “IT’S LEGAL NOW!!” Although that may be the belief of some optimistic, and/or perhaps uninformed Canadians, it is not the legal reality. There is a long complicated road ahead of the government elect, before Canadians will be legally smoking, vaping, dabbing or eating marijuana legally.

Legalizing marijuana is more complicated than just a change to the Criminal Code sections that currently make recreational use of marijuana a criminal offence in this country. There is a litany of other issues that must be simultaneously addressed in any potential change to the legislation scheme.  Just some of these issues include:

– How to effectively address marijuana impaired driving;

– How to keep the legal taxed marijuana competitive with the established illegal marijuana market;

– How to organize a legal recreational marijuana marketplace that will not conflict with the federal medical marijuana scheme that is in the process of being implemented; and  

– How to regulate the production, distribution and sale of legal marijuana.

With the recent legalization of recreational marijuana in some US states, including Washington and Colorado, there are other jurisdictions that the Liberal government can look to and hopefully learn what has worked and avoid some of the missteps that have made throughout the process.

Fortunately for Canada we won’t have the same banking issues that the US states have had to deal with. In the US, banks are regulated federally. While marijuana is still illegal at the federal level, states have passed laws to make marijuana legal.  The federally regulated  banks view the marijuana revenues as essentially coming from illegal activity. This has created a major problem for those involved in the U.S. marijuana industry.

In Canada we won’t have the same issue with banking, although, we will have problems. When they lost the majority of seats in the election, the Conservative federal government was in the process of implementing a new medical marijuana scheme. Previously, individually licensed local growers were able to provide marijuana to patients at an affordable rate that was competitive with the black market price. Under the new scheme, patients would only technically be able to buy their marijuana through a system that would provide product from large, centrally owned and heavily regulated growers, at set prices that are much higher than the black market prices in most areas of the country.

In order for a taxed and legal recreational marijuana market to be successful, its’ prices, including taxes, must be competitive with the established black market or it will fail. If the taxed, legal marijuana is available at this price point, it would make the medical marijuana redundant, because patients would abandon the medical system and buy the recreational marijuana because of the reduced price. This is an issue that must be addressed, by scrapping the medical marijuana scheme, allowing it to go back to the old system of independent growers or drastically reducing the price for patients under the new scheme.   

If the government is to make recreational marijuana available they also have an obligation to put in place, and effectively enforce, impaired driving laws related to marijuana. There are many issues that other jurisdictions have faced on this issue. Impairment can be difficult to measure and even more difficult to detect. Currently, the only reliable way to measure a driver’s THC (marijuana’s intoxicating substance) levels is by a blood test. Requiring blood tests from drivers who are simply suspected of marijuana impaired drivers is a landmine of a criminal legal issue.

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Where and how to produce and sell legal recreational marijuana, is also an issue that requires substantial consideration and planning. It is possible that the government may just confer contracts to the growers who are currently growing for medical marijuana and allow provincially regulated liquor stores to begin to sell the marijuana they grow. This seemingly simple solution would be strongly opposed by many groups, all looking to profit from getting their own piece of the recreational marijuana market. Regardless of how they work it out, the government will need a system that will make as sure as possible that legal marijuana is not available to minors, is available conveniently for adults and is still at a price point competitive to the black market. If the US can be taken as an example, it is likely that even once the system is arranged and legislated it will take in the neighbourhood of 1 to 2 years to get it up and running, and once it is up and running another couple years of growing pains is highly likely. Of course, these timeframes are all dependent on how hungry the legislators get while doing field research.

Regardless of what the guy at your local head shop may tell you, for now, marijuana for recreational use remains illegal in Canada, although enforced at drastically levels depending on the jurisdiction. We watch with great interest to see if legal recreational pot will become a Canadian reality.