25th October 2019
This is part 2 of Transform's interview with 5 leading Canadian policy experts. To read part 1, click here.
On reflection a year in, was the federal legislation adequate? and In terms of lessons for other countries what’s worked, what’s not worked, and what did they miss?
A flaw that need addressing was the absence, or at least minimization of the social justice aims of legalization. It seems that expungement of criminal records is off the table and we will be left with fee-waived record suspensions (pardons) which are largely inadequate as a remedy to prohibition. For example, a pardon still means you can’t travel to the US without applying for a waiver from that government for $500 (and not guaranteed you’ll get it) or employers using your past record as a basis to not hire you.
In principle, the public health aims of our packaging and very limited branding and marketing of cannabis make sense if cannabis existed in a vacuum. In reality, as time goes on, it makes less sense when cannabis has to compete with alcohol to consumers. There doesn’t seem to be any appetite to ratchet in alcohol advertising despite its documented harms – especially to young people – so it seems that cannabis is relegated to the sidelines in this respect. I think there is probably a happy middle-ground that should allow cannabis companies to differentiate themselves based on business practices (for example, there’s no incentive to be the highest quality producer if you’re not allowed to talk about how that makes your product better than others) and position products in relation to others in the store through branding.
The harsh sentencing provisions seem completely disproportionate to the spirit of legalization, but I haven’t heard of a lot of people falling under those. It may still be a bit early to tell.
It’s really easy to focus on the inadequacies of federal legislation but the shift in and of itself was pretty exciting. Some pieces did find what I think is the right balance – a federal minimum age of 18, packaging restrictions, home growing allowance – but its also important to note that everything outside of the regulated system were subject to even more harsher penalties, like possession of ‘illicit’ cannabis.
Social equity programming was also an afterthought – rather than create these initiatives in tandem, the introduction of Bill C93 (e.g. no fee expedited pardons for cannabis possession charges) came long after the introduction of legalization. It was disappointing to see Canada as a global leader in one regard, but totally miss the mark on the Act regarding social justice measures.
There were a few things happening at the commercial market level– the federal government for example had introduced a “navigator” program for indigenous owned businesses – but otherwise issues around social justice, criminal records, streamlining applications for production from marginalized communities or populations – were mostly absent. Even with the introduction of a streamlined pardoning process, meaning the waiting period and fee is waved, there is still questions about the accessibility of that process, and if these records should be expunged completely. I worry that expungement may not be an attainable goal because of poor recording keeping practices around arrest and charge data, so would like to see the focus on helping communities access those pardons that are already available.
From the consumer perspective, the thing I probably hear about the most is around the excessive packaging and environmental concerns–very closely related to the labeling requirements and child proof packaging required for cannabis products. There is some innovation, but it seems excessive with very little sustainable options available. the current practices are extremely wasteful, and the sustainability piece was largely ignored – even in regards to the substantial impact of indoor production.
A significant limitation of Canada's approach is the absence of expungements for those with criminal records for cannabis charges. Instead, Canada has allowed individuals with such criminal records to apply for record suspensions (i.e., pardons), thereby putting the onus on individuals to apply for relief. Record suspensions differ from expungements insofar as they can be revoked by subsequent governments or the Parole Board, can be accessed by some government and law enforcement agencies thereby continuing to risk negative effects on the individual, and can be accidentally disclosed since the records are not destroyed. A further limitation of Canada's approach is that those with anything other than a simple possession charge will not be eligible for pardons. Given that a simple possession charge by itself is rare, many of those with cannabis charges will not qualify. While Canada's legislation on pardons is a step in the right direction, it does not go far enough to rectify the negative impacts of a criminal record for cannabis charges, and will disproportionately impact visible minorities who are most likely to have been convicted of a cannabis offence.
What challenges do you see with the emergence of a relatively small number of very large corporate actors dominating the Canadian market?
I think it was a missed opportunity to not provide market access for those small producers not affiliated with organized crime (i.e. the majority of them). Many have decades of experience growing high quality product and their expertise is not being captured by the new system. One particular barrier to entry is now in order to get a license, a potential supplier needs to already have a facility in place. This was a reaction to too many people applying and not going forward, but it will have the opposite effect of making an application too risky for many.
Having big actors in the field doesn’t per se mean trouble, but I think when the market is largely centred on the big players without room for the micro and mid-range producers we’re going to see corporate capture of the regulatory process. There’s just too much concentrated money with too much influence there. It would be great if other countries could learn from this lesson and limit participation of large corporations without adequate participation of smaller actors.
There is definitely rightful concern about the domination of a small number of corporate actors in the cannabis space, or “big cannabis”. The introduction of the Cannabis Act last year did help, in that it introduced a variety of licensing classes and subclasses rather than one standard category, including “Micro Cultivation” which could be about the size of a hockey rink (200m2) – much smaller than a standard license. While this was a step forward by paving a more attainable path and requirements for smaller players it also recently faced a few steps backwards when the federal government announced this summer that facilities for these applications now must be completely built before submission, which can make smaller applications less viable and much more costly.
More mechanism to assist smaller players in entering the space is good for everyone – and there is an appetite in the consumer market for smaller batch cannabis production.
Also, it's been interesting to explore some of the bodies that sit on and behind these boards and corporations. There are multiple examples of individuals who have historically supported prohibition, or have actually had a hand in criminalization or creating legislation that harshly penalized cannabis users, growers and sellers. This can be concerning because the people who profited off prohibition are likely the same people who will profit off legalization. If countries are looking to legalize – it might be inevitable that a variety of players will come to the table, but facilitating entry to the market and benefits for communities traditionally harmed by prohibition should be top of the list, not an afterthought. Particularly, when examining the role individuals in the illegal cannabis space could play in the legal space, and what it means to have someone “go legal” – and the importance of an inclusive and flexible market.
There are a few issues here. The first is the lack of room for (and consideration of) smaller members-only non-profit collectives to push back against the over-commercialization of the market. The second is the disenfranchisement of racialized communities and women in the cannabis market. Overwhelmingly, the licensed producers and retailers are populated by white men at the executive level despite the harms of cannabis criminalization being experienced disproportionately by minority communities, especially black and Indigenous youth.
What sense do you have of the impact that the reforms have had on relations with other countries, including the US, and issues related to the UN drug treaties?
Hard to say where the US is these days because its democracy is imploding as we watch, but I’d say that backlash to Canada legalizing has actually been less significant internationally than I might have thought. Aside from the usual suspects at UN forums, nobody seems to be making a big deal about it. That said, I am increasingly hearing about issues with people crossing the US border and getting banned for drug use. That could largely be Trumpifying of the border, or a reaction to legalization. As far as I know, it didn’t cause any major hiccups in NAFTA renegotiation or in other international relations efforts.
Canada's cannabis policy reforms have garnered significant attention on the international stage, particularly at the Commission on Narcotic Drugs where member states opposed to cannabis regulation have been vocal in speaking out against Canada. While Canada is in technical non-compliance with the UN drug conventions, it remains to be seen if and how an arrangement that brings full compliance with the country’s international obligations will be pursued. Nevertheless, it is reasonable to expect that Canada's approach will have ramifications on other countries considering the adoption of cannabis policies that violate international legal obligations.
Where do you think we will be in 5 years time - in terms of the balance of the regulated and illegal market, and impacts of wider patterns of use, particularly risky using behaviours and youth use?
Providing that there is some honest effort at tweaking the legislation in the next few years to allow the market to grow, I would reasonably guess that it’s possible to capture at least 60-75% of the illegal market in Canada. I think the ‘prohibition 2.0’ people are going to be holdouts forever, but will over time be relegated as a quaint leftover of past policies. In five years, I’d expect that overall use numbers won’t really change, but if there’s a serious effort at evidence-based education and harm reduction, I’d imagine that risky behaviours and youth use would go down.
I think similar to other markets we’ll see adult use level out. It’s interesting to me that the fastest growing demographic is really baby boomers in Canada. While it’s really too early to say, some preliminary data shows youth use has actually remained steady. It’s likely that many of the ‘worst case scenarios’ will not materialize, and while legislation is not and won’t be perfect, I think we will see a net benefit from proper regulation. Even with the recent vaping “panic”, the answer is so clearly the proper regulation of vaping devices to avoid dangerous additives and production practices. Also, a recent study from the University of Northern BC found that the top 10% of users – e.g. the heaviest – were responsible for about two thirds of all legal cannabis consumed in the country last year. With emerging data we are just beginning to tap into where some of the harms may be situated.
Do you think the regulation of cannabis will help the cause for all drug decriminalisation, or the regulation of other drugs?
We are hearing a lot of discussion about the relationship of decriminalization to the overdose crisis and the stigma that criminalization perpetuates, which is good. I just don’t see people pointing to legalization and saying that it makes or breaks the case for decriminalization. The fact that the currently governing party that legalized cannabis has taken it off the table proactively doesn’t help either. For now, the Greens and NDP have it in their platforms, so there is hope.
As for legalization of other drugs, if it ends up that we did things well with cannabis that would bolster the idea that government can do such things with some competence. If it’s messed up, then the opposite of course. But, again, it’s a different case to be made when we talk about why it makes sense to legalize opioids or stimulants, for example. The narrative that cannabis should be legalized because it’s not all that risky works against what we’re trying to do with these other drugs, but I think there’s room to show people that the tools are similar, but it's an uphill battle.
Just as the introduction of medical cannabis has served as a prelude to recreational markets, I think both medical and recreational cannabis will lead to broader acceptance of wider reforms . We see evidence of this in the increased funding for and attention to clinical trials involving MDMA, psilocybin, LSD and ketamine. I think we’re going to see these substances become much more accepted as medicines for certain conditions as their evidence base grows. Similarly, we’ve recently seen ballot measures to decriminalize psilocybin in two American jurisdictions that have recreational cannabis. There’s a growing recognition (at least in some parts of the world) that the global war on drugs has been a failure, and that there are immense social and economic costs associated with this continuation. Cannabis serves as a good prelude for change.
In some ways – absolutely, especially as it demonstrates an alternative path for a substance that was illegal for so long. Some of the federal political parties have floated the idea of drug decriminalization, and in some pockets of Canada– notably Vancouver which has been hit hard with overdose related deaths – have been discussing safe supply and/or decrim pilot studies in particular communities. I’m not sure there is an appetite for it yet across Canada- but the conversation is becoming more palatable in mainstream media.
I would love to see a wider conversation around the regulation of other drugs, particularly since Canada has lost of 10,000 people to overdoses since 2016, but very little effective action, even dialogue, has been implemented. For example, we’re currently in the middle of an election, and the overdose and contaminated supply crisis has received very little attention. We’ve declared public health emergencies for so much less, and something which has impacted so many Canadians is barely being discussed on a national scale.
While Im hopeful that cannabis regulation will impact public opinion to support decriminalization and regulation of currently illegal drugs, this has not been reflected in the positions of federal political parties. Specifically, the Liberal government that regulated cannabis has explicitly not supported decriminalization of other drugs. As overdose fatalities continue unabated across the country, it is unconscionable that the logic justifying cannabis policy reform has not been extended to other drugs.