Why the provinces and territories should do most of the work on weed

Ottawa is again being accused of downloading problems to the provinces as it moves to legalize and regulate the sale of marijuana.

Ottawa is again being accused of downloading problems to the provinces as it moves to legalize and regulate the sale of marijuana.

Its new legislation — the Cannabis Act — sets out only some parameters for the new regime. It will revamp various aspects of the criminal code relating to the sale of marijuana to minors and driving while high. It will also handle the licensing of producers and quality control. But it will leave a lot of the details — including the thorny issue of retail and distribution — to the provinces and territories.

Several of the provinces have complained that Ottawa is moving too quickly (as if none of us knew this was coming) and is leaving too many of the details to provinces and territories to sort out.

Downloading problems to the provinces has been a recurring problem in the Canadian federation for many years. But there is also fine line between offloading responsibility and respecting the jurisdiction of the province over matters of a merely local or private nature. The reality is that some things — like legalizing and regulating marijuana — just cannot be done without provincial and territorial involvement.

The problem with the offloading critique is that Ottawa is setting up more or less the same division of powers that exists with alcohol.

It is a federally mandated criminal offence to drive with a blood alcohol level over .08. Ottawa handles the licensing of breweries and distilleries under the Excise Act. Alcohol producers must comply with the standards of the Canadian Food Inspection Agency on matters such as labelling and the Canadian Radio-television Telecommunication Commission when it comes to advertising.

But that is more or less where Ottawa’s role ends.

The failure of some to understand that division of responsibility has become a political problem for the Liberals as critics have seized upon Ottawa’s ceding of jurisdiction to the provinces as evidence that Ottawa doesn’t know what it’s doing.

One move which has raised a lot of eyebrows is by the decision to set 18 as a nationwide minimum age for marijuana use. Judging by the criticism of that move it seems that many assume that this is where Ottawa wants to see the legal minimum set. The fact that it is open to the provinces to choose a higher age if they wish seems to get lost in the discussion.

This really isn’t any different than the situation with alcohol (in fact, I’m not aware of any federal minimum age when it comes to booze). In Yukon, as with most provinces, the legal age to buy alcohol is 19, while in Alberta, Manitoba and Newfoundland the age is set at 18. Ever wonder why that is? Because it is the provinces, not Ottawa, that set those standards.

With marijuana, provinces can decide that one can make the decision to accept the risks of partaking once they reach adulthood or if a nanny state ought to protect adult developing brains from their own free will until they reach the age of 25 as some are suggesting.

More gnashing of teeth has occurred around the fact that it will not be a criminal offence under the Liberal’s regime for teenagers to possess up to five grams of marijuana. Critics have used this move to somehow argue that Ottawa is somehow saying that is OK for teenagers to use marijuana.

Again this criticism fails to appreciate the nature of the Canadian federation and the role that provinces and territories are supposed to play. If you were ever caught by the police with some booze as a teenager you may have received a ticket under a territorial statute — the Yukon Liquor Act. Neither the criminal code, nor any other federal law had anything to say about the matter.

When you buy alcohol you buy it from the Yukon Liquor Corporation. The licensing of premises that serve alcohol is handled by the Yukon Liquor Corporation. I could go on like this.

Returning to marijuana, not only is the decision to leave these matters to the provinces a reasonable balancing of national and local decision making, it is probably constitutionally necessarily. Intruding into certain aspects of regulation could result in those efforts being struck down by the courts.

The constitution sets out those categories of matters that are to be left to Ottawa and to the provinces. And anyone familiar with the court decisions those sections might see how a “Federal Marijuana Store” might run afoul of provincial jurisdiction. The Yukon Act, while a simple statute of federal Parliament, gives more or less the same powers to our territorial legislature.

There was a time when provinces fought lengthy court battles to protect their autonomy. They would vigorously push back whenever Ottawa ventured onto their turf. It still happens sometimes.

But on this hot-button subject that some jurisdictions would prefer not to deal with right now that doesn’t seem to be the case. Fundamentally I think part of the issue is that many provincial officials aren’t sold on the idea of legal weed, don’t want to see any of this happen and are loath to be seen as enabling the process.

There may be something to the criticism that Ottawa is not giving the provinces enough time but I’m not wholly convinced. And while I feel for the bureaucrats whose political masters waited until the Liberals introduced their bill in Parliament to actually get this process moving it was certainly foreseeable what role provinces and territories would play.

As someone not immersed in the business and culture of government, sorting out the details doesn’t seem overly daunting to me.

The debate over whether criminalization or regulation is a better approach is effectively over. Let’s get on with it.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.

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