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Did Canada Really 'Blow It' On Legalization?

Did Canada Really 'Blow It' On Legalization?

A recent article in the Financial Post saw Neil Selfe, CEO of Infor Financial Group Inc. lambast Canada for its rollout of legalization, saying that Canada ‘blew’ our opportunity to be a world leader in cannabis legalization and policy. Comparisons were made to the differences in US policy, and that the customer experience for purchasing cannabis in Canada is not unlike that of a person buying liquor in the 60’s. 

Some specific examples of Canada’s policy were pointed out, such as the ‘patchwork’ of different provincial policies, a lack of policy innovation and the severe restrictions on marketing and branding with which cannabis producers must contend. Also stated is that ‘we were first’, referring to the fact that Canada legalized cannabis before the US has at the federal level. To make an accurate analysis of whether we have ‘blown’ it though, we need to unpack a rather simplistic statement at what exactly Canada was ranked first. 

Canada was the first of the two countries to have a federally legal medical cannabis system, which the US is currently lacking. This was not created primarily by legislative change however, the original R v Parker court decision forced the government into creating a medical cannabis program. Even at this point however, the program was not legislated through our parliamentary system, but instead created as a set of regulations. The Canada Gazette is where regulations such as these are posted, and this happens at the whim of the government in power, a state of affairs that has led to a revolving door of medical cannabis programs prior to the passage of the Cannabis Act

The first program was the MMAR created by the Liberals, which was later changed to the MMPR under the Conservatives, and again to the ACMPR under the Liberals. There is an advantage to the lower overhead in creating these programs in the Gazette, but only if the government is amenable to progressive policy, and arguably none of the medical programs allowed for reasonable access as mandated in R v Parker. 

We were again first in the G7, but not first overall, to propose recreational legalization, which consequently meant defying UN treaties that have long shackled member countries from extending their medical cannabis programs to the general adult-use market. Uruguay and US states that legalized recreational cannabis before us drew the ire of the INCB, or the International Narcotics Control Board. In the end however, this rebuke was mostly posturing rather than any concrete consequences for the US, Uruguay, or Canada. 

Now that we know the exact details of where we rank ‘first’, we can examine Neil’s comments in an informed way. Firstly, we should look at the ‘patchwork’ element, as this is the comment with the least validity. Canada is a decidedly more federalized country than the US, which is to say more power rests with the federal government, and more decisions are made in Ottawa. Compared to the US our differences in policy between provinces and territories are not all that great, and are actually to be expected given the magnitude of difference in regimes for other controlled substances like alcohol. Alberta enjoys fully privatized liquor, whereas jurisdictions like Ontario have a government monopoly on sales of liquor. 

In comparison, each legalized state in the US has largely been charting their own destiny when it comes to legalization, with extreme differences such as Washington having collapsed the medical cannabis system into the recreational one, some states having established a very restrictive set of substances that are allowed, and even having set regulations on acceptable shapes of cannabis edibles. 

It also remains to be seen how cannabis will be legalized federally in the US, if the STATES Act, which is essentially federal decriminalization the ‘patchwork’ of state approaches will remain. With all this in mind, our differences in policy at the provincial and territorial level is not something that would largely be responsible for ‘blowing it’. Next, we have to look at how innovative our policy truly is. 

Going back as far as the most recent change to the medical program before the Cannabis Act, the ACMPR, the government has not been innovative so much as doing the bare minimum. The ACMPR was essentially an amalgamation of the MMAR and the MMPR, and the burdensome regulations of legalization are largely still rooted in the Harper Conservatives MMPR program, a regime which took to treating cannabis like nuclear waste. The Liberals had a good opportunity to revamp the system completely, and did not take advantage of it. 

We then have to look to legalization itself, and we see more minimal, rather than innovative policy. Plain packaging is an initiative borrowed from tobacco, and more to the point is that the legalization regime classifies cannabis as either ‘illicit’ or ‘licit’. This is somewhat borrowed from the MMPR, which primarily focused on legalizing the product rather than the medical user themselves. This provides for barriers to entry, and has likely contributed to the current supply issues rather than allowing current growers to simply have their cannabis tested and then sold. 

Another bare minimum policy initiative is that of record suspensions for previous cannabis possession infractions. Under the Harper Conservatives, pardons were renamed ‘record suspensions’ which are significantly less advantageous to individuals applying for them, especially given that the convictions can be reinstated if the government feels you have engaged in questionable conduct, somewhat akin to the US border policy of denying entrance to those who are deemed to have engaged in acts of moral turpitude. Given how long it took record suspensions to become Liberal policy, the government cannot be accused of innovative policy regarding equity in cannabis legalization. 

At the provincial level, the country has largely eschewed social consumption spaces despite some states in the US moving ahead on this front. In some areas of the country, non-homeowners have few to no places they can legally consume. Other examples such as some provinces disallowing home delivery, imposing a ‘social responsibility tax’, and other regressive measures lead to a conclusion that is not all that surprising, Canada’s ‘first-mover’ advantage is also a disadvantage in terms of these first steps being ultra-conservative ones. Aside from that, looking at the state of the restrictions on alcohol in Canada over 90 years after prohibition fell should not lead to hopes of innovative policy on cannabis. 

Finally, we have to look at the marketing and branding restrictions. Is this where we ‘blew it’? The answer may be ‘yes, but legalization would not have come to fruition otherwise’. The reason behind this assertion is simply an extension of what we saw during the Senate hearings on legalization. The Conservatives proposed an amendment that would have banned ‘swag’, or cannabis logos and advertising on ancillary products like t-shirts. Justification given was the ‘protect the children’ canard, and it is reasonable to assume this line of hysteria would have also been thrown against legalization if the restrictions on actual product packaging were not as permissive. As more proof of this we need look no further than Quebec, which has prohibited selling anything with cannabis leaf iconography.

This is not a defense of these extreme restrictions, however. The legal market has struggled to establish brands, whereas the legacy market has flashy packaging, attractive branding and other advantages over the legal ecosystem. Given the relative harms of cannabis, evidence-based policy would dictate it having the least restrictions, or at least the same restrictions as alcohol versus the current state of cannabis being regulated mostly like tobacco. US states also do not suffer these extreme restrictions, although recent measures in California have moved their restrictions closer to Canada’s. 

It remains to be seen what the final analysis will say about Canada, however we should not let the country's page in cannabis legalization history be completely dictated by financial analysis. As a first-mover, Canada defied the UN and their sovereignty-sapping drug treaties, opposition from US officials like then Attorney General Jeff Sessions, and obstructionist Conservative politicians at home. All of these struggles and more have paved the way for other countries to legalize, and even learn from our mistakes of which just a portion have been outlined above. 

The phrase ‘the right side of history’ is often used as a way to rationalize defeat, unfair policy, or outright injustice. Canada need not be relegated to being on the ‘right side of cannabis history’ however, if our government truly embraces an evidenced-based approach to cannabis and makes major adjustments to the regulations. In a holistic analysis, Neil’s concerns are accurate, however it is still not too late for Canada to shake off any accusations of ‘blowing it’, but time is running out. 

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