Can Bill 121 survive Nicole Sarauer’s five-point law-exploding weed critique?

Feature | by Gregory Beatty

The federal government’s July 1 target date to legalize recreational cannabis is looming, so it’s a good thing Saskatchewan finally joined the rest of Canada with draft legislation on how the distribution and sale will work. Better almost late than never, right?

Saskatchewan Justice Minister Don Morgan unveiled Bill 121, The Cannabis Control Act, in late March. The basics are consistent with most other provinces: 19 will be the legal age to buy and use cannabis, which will be available from stand-alone dispensaries and online sites; and people may home-grow four plants.

But  legalizing cannabis was never going to be straightforward. With a 100-year history as an illegal substance that even today is lumped in with heroin, crystal meth and crack cocaine in the Controlled Drugs & Substances Act, there’s  a lot of complexity involved.

Bill 121 had its first reading and will be studied in committee. When that happens, NDP justice critic and Real Actual Lawyer Nicole Sarauer will have some questions for the government. Five questions, to be precise.

First, a recap of how the system will work.

Ottawa has jurisdiction over producers and Saskatchewan, through the Liquor and Gaming Authority, will license a private wholesaler to distribute cannabis to 51 private retailers — six each in Regina and Saskatoon, with the rest scattered throughout the province. The retailers will be selected in a two-stage process, with an initial evaluation based on financial capacity and good character, followed by a lottery.

Now, onto Pot List Five. Cue the theme music.

1. Police & Inspectors

“There are some provisions that allow for access to information from those who are in a retail location as customers that I thought were pretty broad,” says Sarauer.

Part four of The Cannabis Control Act introduces the idea of “cannabis enforcement officers”, similar to liquor inspectors, who will have the authority (at any reasonable time) to enter and inspect retail premises — including any record or property the retailer is required to keep on the possession, sale and consumption of cannabis.

Under a different subsection, police are given the same powers without any requirement for a warrant.

Cannabis enforcement officers are also permitted to question customers.

“They can ask for proof of age, which is similar to liquor I’m assuming,” says Sarauer. “Then it says ‘and make other inquiries’. I don’t know what that means.”

Yet another subsection grants similar powers to police, says Sarauer.

“It says if a police officer enters a premises and seizes cannabis, they may demand the name and address of any person found there. It doesn’t say it has to be a retail premises, so it could be a private home,” she says.

Sarauer wonders about the Charter implications of those powers.

“When we’re talking about cannabis, there are lots of people concerned about their personal information getting out, and who will have access to it and for what purpose. Even though cannabis is being legalized, there’s still a stigma around its purchase and consumption. So we do have concerns about the search powers being given to police and cannabis inspectors.”

2. Transportation

Another provision that caught Sarauer’s eye is people being required, after purchasing cannabis, to drive directly to a legal place of consumption.

“You can’t stop to get gas, you can’t stop to get groceries,” says Sarauer. “I’ve now learned, which I was quite surprised to hear, that it’s the same for alcohol. Right now, I have a bottle of wine in my car, which is technically illegal, because I picked it up at the liquor store on my way to the office. Later, I’m going to go home and then go to another [function].”

The problem with cannabis regulations mirroring liquor laws is that many of those laws were enacted after Prohibition ended in the mid-1920s and were quite restrictive. Over the decades, as society’s attitude toward liquor relaxed, some of the restrictions were lifted. Others, such as the transport provision, simply aren’t enforced.

With cannabis, the government had a chance to take a 21st century approach to regulation. Instead, it’s opted for more of a Prohibition-era mindset.

“From my understanding, there are quite a few provisions in the alcohol legislation that are archaic, and just not enforced anymore,” says Sarauer.

“If we’re using that as a model for cannabis, I don’t know why we would do that with a bunch of unenforceable provisions.”

3. Public Consumption

Speaking of unenforceable, through a combination of provincial and municipal regulation, public consumption of cannabis—at least in smokeable form—will be largely prohibited. That’s in contrast to places such as B.C. and Ontario where cannabis lounges are being considered.

Private homeowners can smoke in their dwellings, but like restrictions on tobacco that landlords and condo boards are entitled to implement, renters and condo owners may be prohibited from smoking cannabis at home.

That would appear to leave them without any legal place to smoke, which could raise Charter concerns, says Sarauer — especially for medical users who depend on cannabis to treat debilitating conditions.

As for recreational users, while the tobacco parallel is superficially appealing, it’s far from accurate, as tobacco is highly addictive while cannabis is much more benign.

Ideally, common sense will prevail, so that if people are discreet when smoking up in public, they won’t be charged. That’s pretty much the way it is now anyway, so it would be hugely ironic to see a crackdown on public use once cannabis is legal.

But Bill 121 does leave that door open.

4. Retailing And Wholesaling

There are lots of questions around the distribution and retail system, too. Stats Canada has valued the recreational cannabis market in Canada at $7 billion. Then there’s the likelihood of a global market emerging as other countries legalize cannabis.

Those are big stakes. And, according to a recent Johnson Shoyama Graduate School of Public Policy report, the way Saskatchewan has set things up could shut out local craft producers and retailers.

That’s because, under Bill 121, nothing prevents a large federally licensed producer from controlling the entire commercial supply chain from wholesaler through retail outlets.

Sarauer shares the report’s concern.

“On the retail side, there are several qualifications you have to meet before you get into the lottery — one of which is a financial stress test which, to my knowledge, is largely subjective.”

The stress test, plus the equally subjective “good character” test, could be used to weed out local players.

“We should be doing everything we can to ensure these businesses are local, so the benefits and opportunities, as much as possible, are kept within the province,” Sarauer argues.

“The warehouse distributor will be privately owned too, instead of a SLGA model,” she adds. “We’re the only province that will have a private wholesaler, and we don’t know yet who is getting that contract.”

The application deadline for retail permits closed April 10. Later this month, the application process for the wholesaler opens. And the NDP will be watching, says Sarauer.

“You only have to look at the liquor store privatization in 2016 to see who got the contracts, a lot were larger businesses from out of province. So there are some legitimate concerns about who will be getting those retail permits, and the wholesale permit too. That will amount to some serious money.”

5. Impaired Driving

Sarauer’s final concern for our list is the zero tolerance policy toward drugged driving. It’s based on the alcohol model (again), but cannabis is metabolized differently by the body and even days after consumption, trace amounts of THC and other cannabinoids may show up in the saliva and blood tests police are authorized to demand.

“I’ve been hearing concerns even from police officers who are questioning the enforceability of the zero tolerance model the Sask. Party is putting forward,” says Sarauer.

“It might look good in a press release but when police have to pull someone over, enforcing this is going to be difficult,” she says.


Righting A Wrong

In 2016, with the federal Liberals already committed to cannabis legalization, 821 people in Saskatchewan were busted for possession.

“That was 51 per cent higher than the Canadian average,” says NDP justice critic Nicole Sarauer.

That statistic isn’t an anomaly, either. For many years, Saskatchewan has had a higher cannabis charge rate than most other provinces.

And the charges, typically, have fallen heaviest on Indigenous people and other marginalized communities.

Sarauer recently called on Justice minister Don Morgan to join her in petitioning Ottawa to establish an expedited pardon process.

“While a possession charge might be considered somewhat minor, it still results in a criminal record which can dramatically affect a person’s employment and ability to travel,” she says.

While a pardon process does exist, the Harper Conservatives, as part of their all talk, no brains “tough on crime” agenda, made it longer and more expensive.

And for many cannabis offenders—especially from marginalized communities— it presents a significant barrier.

“Understanding that it’s federal jurisdiction, we called on the provincial government to join us in asking for an expedited process to help right a historic wrong — the wrong being that it’s Indigenous people and people of colour who are more likely to receive convictions for cannabis possession,” says Sarauer.

“This is a government that doesn’t shy away from confronting Ottawa, even if it’s an issue outside its jurisdiction. But for whatever reason, they made it clear they weren’t going to join in our call to action. So we sent the letter to the federal government ourselves,” says Sarauer.