{"id":2694,"date":"2018-02-08T16:42:01","date_gmt":"2018-02-08T16:42:01","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2694"},"modified":"2018-10-12T17:13:20","modified_gmt":"2018-10-12T17:13:20","slug":"in-no-certain-terms-the-problem-with-parliaments-marijuana-legalization-law","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/in-no-certain-terms-the-problem-with-parliaments-marijuana-legalization-law\/","title":{"rendered":"In No Certain Terms: The Problem with Parliament’s Marijuana Legalization Law"},"content":{"rendered":"

– ubi jus est aut vagum aut incertum, ibi maxima servitus prevalebit –
\n<\/em><\/p>\n

On April 13, 2017, the Liberals introduced a long-awaited marijuana legalization law, Bill C-45, officially titled \u201cAn Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.\u201d The bill has now passed the House of Commons and is currently before the Senate. In the lead up to the bill\u2019s introduction, the mood among consumers and producers of cannabis-related products was hopeful, and market-capitalization of cannabis-related businesses increased dramatically. But these high expectations were ultimately met with disappointment following the introduction of the bill.\u00a0 Indeed, the stock prices of enterprises in the cannabis industry fell on average more than 7-8% the same day Bill C-45 was introduced. [1]<\/a><\/p>\n

The market\u2019s response can naturally be explained by a number of factors, but one of them is undoubtedly a lack of guidance and clarity in the proposed law.[2]<\/a> One of the hallmarks of a free society governed by the rule of law is that the people know and understand what the law is.\u00a0 The \u201cplayers,\u201d in other words, understand the \u201crules of the game\u201d before the game is played. Bill C-45 unfortunately falls short of this standard, and specifically in regard to what constitutes a \u201ccannabis accessory\u201d.<\/p>\n

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The Term \u201cCannabis Accessory\u201d<\/strong><\/p>\n

The term \u201ccannabis accessory\u201d is employed throughout Bill C-45. It appears in numerous parts of the bill, including prohibitions on promotions,[3]<\/a> packaging and labelling,[4]<\/a> display,[5]<\/a> selling and distribution.[6]<\/a>\u00a0\u00a0It also appears in the definition of many other terms found in the bill, such as \u201cbrand element\u201d, \u201cbrand-preference promotion\u201d, \u201cinformational promotion\u201d and \u201clabel\u201d. In effect, cannabis accessories will be regulated and dealt with in the Act, hence the producers and sellers of such accessories will have to comply with its dispositions.<\/p>\n

Perhaps most importantly, the term \u201ccannabis accessory\u201d appears in s.86(1)(c) of the bill, which has serious implications for personal privacy. Section 86(1)(c) provides that \u201can inspector may, for a purpose related to verifying compliance or preventing non-compliance with the provisions of this Act or of the regulations, enter any place, including a conveyance<\/u>, in which they believe on reasonable grounds (c)\u2002any record, report, electronic data or other document relating to the promotion of cannabis, a cannabis accessory or a service related to cannabis is located.\u201d [my emphasis] The stakes should not be understated.<\/p>\n

But what exactly is a cannabis accessory? Section 2(1) of the bill purports to define the term. It states that a cannabis accessory is \u201c(a) a thing, including rolling papers or wraps, holders, pipes, water pipes, bongs and vaporizers, that is represented to be used in the consumption of cannabis\u00a0or a thing that is represented to be used in the production of cannabis<\/u>; or (b) a thing that is deemed under subsection (3) to be represented to be used in the consumption or production of cannabis. (accessoire<\/em>)\u201d [my emphasis]. Moreover, section 2(3) states that \u201c[f]or the purposes of the definition cannabis accessory, a thing that is commonly used in the consumption or production of cannabis is deemed to be represented to be used in the consumption or production of cannabis if the thing is sold at the same point of sale as cannabis.\u201d<\/p>\n

 <\/p>\n

The Uncertainty with the Term<\/strong><\/p>\n

The aforementioned definition gives rise to uncertainty mainly because it encompasses \u201ca thing that is represented to be used in the production of cannabis.\u201d The problem is the following: producing cannabis will require many products and tools that are also required for many other activities. Effectively, this means that businesses that are thinly or remotely connected to the cannabis industry could be forced to comply with the relevant dispositions of the Act. Or they could not. The fact is that these businesses simply do not know if the Act will apply to their activities, and do not know if they should take the costly steps to prepare themselves in the eventuality that it .<\/p>\n

For example, consider a company who has been, for many years, building and installing greenhouses for producers of tomatoes, garlic, lavender, etc., and now all of the sudden counts a few cannabis producers as clients. Maybe the installations will be counted as a \u201ccannabis accessory\u201d and this company will be subject to the Act. Or consider a company that has been servicing buildings with hydroponic and irrigations systems for a long time that could be put in the same situation; if their systems are deemed a \u201ccannabis accessory\u201d, the Act could apply to them as well.<\/p>\n

In reality, there are a tremendous number of businesses that have almost nothing to do with cannabis specifically but that could nevertheless be swept up by the Act. This includes, but is not limited to, companies that (1) make specific types of lamps and bulbs, (2) provide ventilation systems, (3) sell temperature regulation devices, (4) are in the business of fertilizers and soil, and (5) provide any technology to track the growth and the quality of the plant.<\/p>\n

Understandably, the broad wording aims to regulate activities of business that are related to the production of cannabis, despite not being cannabis producers themselves. But, the wording as it stands is impermissibly vague, and this prevents businesses, market players and the public as a whole from knowing precisely what business activities will be subject to the rules. There are many unanswered questions regarding what constitutes a cannabis accessory:<\/p>\n