What Might Legalization Look Like Under the Conservatives?
Current Canadian federal polling shows that the Conservatives may well be on track to form government after the next federal election, on October 21st of this year. Among other policy areas which may see a radical shift, both cannabis legalization as a whole and the medical side of legalization are areas for concern.
Two possibilities exist for a Conservative government, a minority or a majority. The practical difference between these two situations for cannabis policy will be that in a majority situation, the Conservatives will be able to unilaterally change both legislation and regulations. In a minority situation, they will only be able to unilaterally change regulations, and will require the support of either the Liberals or NDP to change legislation. Before examining the details of both of those situations however, we have to discuss the role of the Senate.
The Limited Power Of The Senate
In the Canadian Senate, independent / non-affiliated senators currently enjoy a majority, which is unlikely to change for some time after a Conservative election victory given there is only one current vacancy which will likely be filled by the Liberals before leaving office. In a majority Conservative government, any changes to the Cannabis Act will still have to go through the Senate and receive support of a majority of senators.
Past conflicts between the House of Commons and the Senate, in particular the assisted dying legislation and the Cannabis Act itself have shown that the Senate will debate and oppose elements of legislation it disagrees with, but will eventually defer to the will of parliament. Rather than an effective check on the power of a majority government, the Senate will prove to be more of a thorn in the side of the Conservatives and if the government has the will for a protracted political battle, will likely be able to push through legislative changes to the Cannabis Act.
A Minority Conservative Government
In a minority government, the Conservatives would control Health Canada as well as likely have a cabinet minister responsible for overseeing the legalization regime. Andrew Scheer, in a French language interview, has said he will not reverse legalization, but will consider adjusting some of the rules.
Marilyn Gladu is currently the opposition Health critic, and is a likely choice for Health Minister. Given her oft-criticized quote about using toaster ovens to consume cannabis, and her persistent opposition to personal cultivation, she is unlikely to be a source of progressive cannabis policy. In a minority government however, there is some reassurance that personal cultivation would be unaffected given it is part of the legislation and not regulations. This is not to say personal cultivation isn’t in danger however, given the increase in provinces with Conservative premiers, she may ask them to prohibit personal cultivation at the provincial level. Manitoba and Quebec have already done this, however it is thought that completely prohibiting personal cultivation violates the supremacy clause of the constitution. This is a legal battle that still has to be fought, however.
Modifying the cannabis regulations will mostly affect the industry itself, and not consumers. The ACMPR / Cannabis Act saw a reduction in many areas of regulation, and it is possible that a Conservative government would reverse that process back to more stringent regulations closer to the MMPR-era cannabis regulations. This would have a negative impact on Licensed Producers as quality and security infrastructure designed to Cannabis Act regulations would have to be modified or entirely redesigned to comply with more stringent regulations. At the extreme, a rollback to requiring someone with security clearance present in every room with cannabis would heavily reduce productivity compared with the current regulation of only requiring a security cleared person to be at the licensed producer’s site.
An area that is of concern to patients, however , is the review of the medical cannabis program that is due to occur under the next government’s mandate. It is likely that the Conservatives will opt to completely shutter the medical system with recreational legalization in place, which will have several negative impacts for patients.
The biggest impact of this will be that personal cannabis production, even for medical patients would be limited to 4 plants, and prohibited entirely in Manitoba and Quebec. Patients would also be subject to recreational supply droughts, and would only be able to buy through recreational channels, which would either be a retail store or online sales through provincial entities such as the BCLDB, AGLC, and OCS. This would also affect LP’s in that without a medical line of business to manage, care and compliance positions exclusively dealing with medical access would likely be eliminated.
Another area of negative impact for patients would be on the public consumption side. In some jurisdictions, medical patients enjoy more public consumption privileges due to their medical status, which shuttering the medical program would revoke. This also extends to protections for consumption and cultivation in situations like patients who rent instead of own their own property. This will no doubt please both landlord associations and police, but will represent a significant reduction in access for patients and will likely generate more court challenges in the vein of the Allard case.
Health Canada resourcing is also a possible consequence of a minority government. Given the current backlog in licensing, a reduction in Health Canada staffing / resource levels would further exacerbate the supply problem as well as ongoing operations for existing licensed producers. Given the Conservative rhetoric around the Liberals running deficits, and the general opposition to legalization, starving Health Canada of necessary resources is a real possibility, although perhaps less likely than the other measures mentioned here.
The deadline for implementation of extract and edible regulations is October 17th, meaning that those regulations would have been in place for less than a week when the next election is decided. There is an additional measure of complication in that for any new cannabis product, a licensed producer must notify Health Canada and wait 60 days before sales can commence, meaning that if the regulations are not implemented before August 21st, no product will have hit store shelves after the next election. Industry analysis also generally tends to concluding products will not be appearing on shelves until Q1 or Q2 of 2020.
Without the power to change legislation however, the Conservatives cannot stop the new product classes, but they can modify the current proposed regulations to be even more restrictive or practically unworkable.
A Majority Conservative Government
In a majority government, the Conservatives will be able to unilaterally amend the Cannabis Act as well as take any of the actions described above. What does this mean for cannabis consumers and the industry?
A piece of low-hanging fruit would be recreational personal cultivation. The market for seeds and clones has been slow to start, with only a few producers offering a few varieties of seeds, and the first nursery license only recently having been granted. As such, this part of industry does not have the same amount of inertia as the rest of it and may tempt the Conservatives to completely eliminate personal cultivation from the Cannabis Act. If this was to occur, there would be no constitutional concerns regarding Manitoba and Quebec as personal cultivation would be banned throughout the entire country.
With the government having the power to amend legislation, extracts and edible product classes may also be in jeopardy. The Conservatives could easily delete the Cannabis Act sections requiring extract and edible regulations, or push the date further in the future. The latter is more likely given the rhetoric around legalized being ‘rushed’, but either action would heavily upset a large section of the industry as both cultivators and extract/edible specific companies would have timelines and projects thrown into disarray.
On the issue of cannabis amnesty, the measure the Liberals have brought forward in record suspensions has largely been viewed as a half-measure, and not nearly enough to right the wrongs of prohibition. Given the record of the Conservatives on pardons, it is unlikely they will implement a better system and may remove the record suspension provisions altogether.
There is a potential positive change however, in the area of taxing cannabis. Several prominent conservatives have support the Don’t Tax Medicine campaign, which the Liberals have largely ignored in keeping the tax on medical cannabis. If the Conservatives do not shutter the medical system, removing this tax is a possibility. The other major tax issue is the somewhat arbitrary fashion in which the Liberals have decided to tax some classes of extracts and edibles based on the THC percentages contained in the products. It is less likely that the Conservatives will alter this strategy, given they have largely embraced the narrative of ‘THC bad, CBD good’.
Beyond these obvious changes, the potential for Conservative amendments to the cannabis act is practically unlimited. Possibilities include harsher criminal penalties, more strict regulations on LP shareholder disclosure, bringing in federally binding guidelines on the amount of cannabis you can store at home, further marketing restrictions, and more.
What Should Canadians Expect From The Conservatives On Cannabis?
In summary, it is possible, but unlikely that legalization will completely be undone by the Conservatives. There are many parts of the legalization regime however that they may restrict in either a minority or majority government situation, and the Senate cannot be relied on as a measure to preserve existing legislation if they win a majority government.
There are some bright spots such as possibly removing the tax on medicine, but political history has shown that promises made when a party is in opposition do not necessarily transfer when that government assumes power. As such, both the Canadian public and the cannabis industry should make it well known that they expect sensible cannabis policy from their government, and demand specifics from election platforms on the issue of cannabis policy.
The original version of this article stated the Andrew Scheer has refused to say he would not roll back legalization. This has been corrected with his latest comments on the issue, which can be read in full here : https://nationalpost.com/news/politics/scheer-clarifies-that-no-a-conservative-government-would-not-re-criminalize-cannabis