Pot legalization path has many twists and turns

Justin Trudeau campaigned on a plan to legalize marijuana, and his mandate letter to new Justice Minister Jody Wilson-Raybould indicates that he plans to keep that promise. But getting to legalization is a multi-step process that could take several different paths, experts say.

Trudeau issued public mandate letters to each of his cabinet ministers, outlining the priorities for their portfolios. Among other things, Wilson-Raybould’s letter states that she should work with the ministers of health and public safety to “create a federal-provincial-territorial process that will lead to the legalization and regulation of marijuana.”

The letter also includes a mandate to look at sentencing reforms, which could include controversial mandatory-minimum sentences for drug crimes that were brought in by the Conservative government, including for growing marijuana.

“It’s pretty encouraging that it’s in the mandate letter. It will be really interesting to see where it appears in the speech from the throne,” Craig Jones, executive director of NORML Canada, tells Yahoo Canada News.

But there are many factors involved in legalizing and regulating marijuana, and municipalities, provinces and territories and the country will all play a role in outlining what that looks like.

As a first step, Jones would like to see the end of all existing cannabis prosecutions, something the government could do by instructing the Public Prosecution Service of Canada to stand down.

NORML Canada is not united as an organization on what should come next, Jones acknowledges. One step could be passing the deletion of Schedule 2 from the Drugs and Substances Act in the Criminal Code, which would legalize it.

“It does create a vacuum,” Jones says of that path, “and would require the provinces to very quickly get their ducks in a row and figure out how they’re going to regulate.“

Provincial powers

Regional jurisdictions are an important factor to consider on the path to legalization. The provinces, for example, could determine the minimum age for legal marijuana purchases as well as if it is sold through a Crown corporation or privately. That could vary across the country, as it already does for alcohol and cigarettes.

Provinces and municipalities can also make their own decisions on factors like sales tax on marijuana — and even if they choose to ban its sale on their own, regardless of federal legalization.

Prosecution for marijuana-related crimes already varies across the country, depending on the priorities of individual police forces and municipalities. Vancouver has created an application process for medical marijuana dispensaries, for example, but RCMP in Nanaimo on Vancouver Island have ordered several dispensaries there to shut down.

An analysis done by CBC News in September found that charges for pot possession were up by about 30 per cent overall across Canada in 2014 compared to 2006, but that your likelihood of being charged with possession varied considerably by region.

In Kelowna, B.C., for example, there were 251 possession charges per 100,000 people aged 12 or older. But in St. John’s, N.L., there was only 11. The national average per 100,000 people, according to CBC News, was 79.

Lessons from U.S.

Other jurisdictions that have legalized pot can provide some models to Canada. Four U.S. states — Colorado, Alaska, Oregon and Washington — have legalized recreational marijuana and have had to deal with challenges like the regulation of marijuana edibles, home growing and impaired driving legislation.

In Colorado, for example, adults 21 and older are allowed to grow up to six marijuana plants themselves. If you purchase recreational marijuana in a store there is an additional 25 per cent sales tax on top of the regular tax for purchases in the state.

And because there is no approved saliva test for THC, the active ingredient in pot, in Canada or the U.S., states that have legalized marijuana have also had to decide how to test for its presence in cases where impaired driving is suspected. In Washington, for example, a blood test is used — and a warrant must be issued before it can be done, a problem when active THC takes just a few hours to dissipate in the body.

The Canadian Centre on Substance Abuse (CCSA) released its report Tuesday on the experience of legalizing cannabis in Washington and Colorado. The group sent delegations to Colorado and Washington, states that both legalized recreational marijuana in 2014, to study the implications of legalization.

“The primary message that we heard was the importance of a clear mandate for the goals,” Rebecca Jesseman, senior policy advisor for CCSA, tells Yahoo Canada News. "What is the problem to be solved and what are the goals to be achieved?”

Both states spoke of the importance of taking the time needed to implement legal changes effectively, Jesseman says. Colorado, in particular, only had a year to make the changes required to legalize recreational marijuana. The issue it had with edibles is an example of the importance of getting the legal framework right the first time, she says. Regulations in the state initially allowed one package of edibles to include multiple doses of cannabis — for example, a single brownie could have 10 doses. When the decision was made to change the laws it was inconvenient for both the state and producers.

“Everyone really agreed that it’s better to err on the side of caution and to make small, incremental changes,” Jesseman says.

What comes next?

The approach he personally supports is a public-health approach, Jones says, one that takes what Canada has learned about regulating alcohol and cigarettes and applies that to marijuana. For example, the public-health perspective is that delaying the age of introduction for marijuana is a good strategy, which means implementing minimum ages for purchase.

Jesseman agrees with that approach. Evidence shows that young people are more susceptible to the potential harms of marijuana use, she say. And we know that the drug can impair cognition and motor control, which means that it’s important to consider the implications of impaired driving.

Jones feels that a cautious approach is the likely way forward for Canada.

“The ‘Canadian Way’ is to be deliberative and to try not to reinvent the wheel if other jurisdictions have already been down this path,” he says. “I anticipate the PM will strike a fact-finding task force.“

Such a task force could involve consultation with jurisdictions in the United States that have already undergone legalization, as well as those further afield like Portugal and Uruguay.

‘If I were doing it, I would go to Colorado state and say, ‘What do you wish you’d done differently,’'’ Jones says.

That’s just what CCSA did, Jesseman says, and caution was their key takeaway.

“We definitely heard that it’s very important to take the time we need to get it right the first time and to invest proactively,” she says.

In the short term, what comes next will be determined by the willingness of Trudeau and his government to move forward, Jones says. But right now Trudeau has a strong mandate, public support and an incoming tide of regulatory changes south of the border on the side of legalization, he says.

“It’s one of those moments in history where you realize you can stand on shore and get wet, or you can get in a boat,” Jones says. “But the tide is coming in and there’s no stopping it.”