Wrong prescription for the Cannabis Act
On May 29, the Canadian Medical Association Journal published an editorial written by its editor-in-chief, Dr. Diane Kelsall, titled “Cannabis legislation fails to protect Canada’s youth.”
Dr. Kelsall takes issue with three aspects of Bill C-45, the federal government’s Cannabis Act. She argues that the minimum age for buying and consuming cannabis should be 21 instead of 18, with limits on the potency of cannabis for people under 25; that home cultivation should be prohibited; and that the federal government should set national regulations for distribution and retail. These well-intentioned suggestions are misguided and potentially harmful.
An age limit of 21 is unlikely to reduce cannabis use but certain to fuel the black market. Age limits help prevent youth from accessing intoxicants, but they would not be effective for adults. At best, these underage adults would obtain legal cannabis illegally. At worst, they would turn to illicit cannabis. Provinces would be wise to align their age limits for cannabis with their age limits for alcohol.
Setting the age limit above 18 or 19 is also arbitrary and paternalistic. After all, as Dr. Kelsall says, the aim is to protect youth, not to protect adults from themselves. If people can legally buy alcohol and tobacco at the age of 18 or 19 (not to mention enlist in the military), then how can we justify setting a higher age for cannabis? There is no doubt that alcohol and tobacco are both far more dangerous substances. Instead of treating adults like children, the government has decided to launch a “broad public education campaign (to) ensure that adults can make informed decisions about their use.”
Prohibiting home cultivation is similarly arbitrary. We allow people to make beer and wine for personal consumption, so what justification is there for prohibiting people from growing cannabis for personal consumption? Once again, the government’s proposal is eminently reasonable. People who grow cannabis must “take suitable precautions to protect children and young persons living in their home as they do now in storing prescription medicine, alcohol or other potentially harmful substances.” Section 12 of the Cannabis Act would, however, prohibit people from using flammable solvents to make cannabis extracts, for the same reason that people are prohibited from distilling their own spirits.
Dr. Kelsall seems to be unaware of the constitutional problems with trying to federally regulate the distribution and retail of cannabis. As lawyer Adam Goldenberg points out in a 2015 article for Policy Options, “Ottawa can legalize marijuana, but its power to regulate it will be limited.” His extensive survey of the relevant case law shows that regulating the sale of cannabis, like regulating the sale of alcohol, falls within provincial jurisdiction.
Although the federal government can use its authority over criminal law to make regulations related to health and safety, the provinces have the authority to decide when and where cannabis can legally be sold. The federal government would likely face a constitutional challenge if it tried to impose Canada-wide regulations of the kind that Dr. Kelsall proposes.
The Cannabis Act is not perfect, but it does provide a workable starting point for legalization. The important question now is how provinces and municipalities should regulate the sale of cannabis. In this phase, we should keep in mind that regulations are counterproductive unless they are proportionate and enforceable. If we tax cannabis too steeply or regulate it too strictly, we will only drive it back into the criminal underworld, where age limits, quality controls, and taxes have no force.
If people can legally buy alcohol and tobacco at the age of 18 or 19 (not to mention enlist in the military), then how can we justify setting a higher age for cannabis?