Going Green

Going Green

< Back to Articles | Topics: Positive business environment | Contributors: Jon Tattrie | Published: February 1, 2018

The business of cannabis in a complex system of legalities

Halifax business owner Christopher Enns has been repeatedly arrested, had his business and home raided, and then saw many of the charges dropped as Canada’s marijuana laws change.

Enns owns Farm Assists Cannabis Resource Centre, providing safe access to medicinal marijuana and products to consume it. His latest run-in with police came in November 2017, when officers pulled him over, spoke to him, searched his vehicle and arrested him for having marijuana. He was charged with possession of a controlled substance for the purposes of trafficking and possession of the proceeds of crime.

The next week the federal Crown told him it was dropping a slew of similar charges laid earlier, noting the charges were “completely defunct.” He still faces the November charges, even as Canada heads into the final months of marijuana prohibition.

Enns has been a prominent activist for marijuana for years and knows the product well. Yet when it becomes legal in July, he’ll remain on the outside because the provincial government will only let itself sell the plant for recreational uses.

“I think we’ve always had a policy here in Nova Scotia of trying to support local businesses, of trying to build entrepreneurship in the province,” he tells Business Voice. “For the past number of decades, we’ve been building an economy here in Nova Scotia of cannabis producers who have been developing products that are both high quality and excellent value. Why we are going to dispense with an industry that is already in the province to replace it with a new industry, with players who have absolutely no experience in the field doesn’t make a lot of sense to me.”

As 2018 began, the federal government under Health Canada had given licenses to grow marijuana to two Nova Scotia companies: Breathing Green Solutions and THC Inc.

Enns thinks anyone who wants to grow the soon-to-be legal crop should be allowed to enter the market. He asks why, if marijuana strains meet quality and safety standards, should the government shut out all but a few selected players?

Nova Scotia’s decision to sell recreational marijuana exclusively at Nova Scotia Liquor Commission outlets goes against a federal task force’s recommendation that alcohol and marijuana should be kept apart. Craft brewers, private vineyards and independent distilleries can and do create their own alcoholic products and sell them in and outside of the NSLC, but that won’t apply to cannabis growers. Enns thinks it should.

“Why is it all of a sudden we’re going to shift this industry into this hyper-regulated framework when the designated grower program that’s been providing [medical cannabis for Nova Scotians for a decade and a half now has been quite successful?”

He plans to remain focused on medical marijuana and worries that legalization could make it harder to get. While he hears from the government regularly when they arrest him at traffic stops and raid his business, Enns says they’ve ignored him and other current dispensaries when it comes to legalizing and regulating marijuana.

Speaking from her Bennett Jones office overlooking a small ski hill in Edmonton, Anne McLellan agrees there could be a role for small businesses.

McLellan grew up on Nova Scotia’s Noel Shore before launching her career in law and politics. She was the Liberal MP for Edmonton Centre from 1993 to 2006, rising to the offices of Deputy Prime Minister and the Attorney General of Canada. When Justin Trudeau’s Liberal government decided to legalize marijuana, it recruited McLellan to chair the task force on the legalization and regulation of cannabis.

Its report was published in December 2016, laying out the challenges and chances Canadians will see once the plant is legal. “Like scraping ice from the car windows on a cold winter morning, we believe that we can now see enough to move forward,” the report’s introduction says. McLellan is the chancellor for Dalhousie University and travels between Alberta and Nova Scotia throughout the year. Nova Scotia’s decision to sell marijuana with alcohol and only through NSLC both go against the task force recommendations.

The task force spoke to people currently breaking the law to grow marijuana. “Unless they’re a licensed producer, they’re all illegal,” she says. “The only legal stream for cannabis we have today is medicinal.”

Authorized patients can grow a small number of plants for personal use, or have a designated grower. Every other plant is illegal and police can and do still charge those people. The task force began by calling them “illegal growers,” but settled on “artisan” or “craft” producers.

“They may be growing 100 or 200 plants. A lot of those people have been growing for a long time. They know their product. They are ethical producers. They’re not selling to organized crime,” she says. “Yes, they’re selling illegally when they go to Saturday market in their village.”

In B.C., many sell openly at farmers markets, with police turning a blind eye. She says their expertise will be in sore demand once the market is legalized. If those people have been arrested for possessing a small amount of marijuana, she doesn’t think that should exclude them from the legal market. “We need those people. We need their expertise and we need their product to meet demand.”

The federal government has jurisdiction over production and manufacturing. The provinces handle distribution and retail.

In Alberta, the provincial government will control online sales, but leave over-the-counter sales to private operators.

“A private system will mean fewer upfront costs for the government and more opportunities for small businesses,” the province’s NDP Justice Minister Kathleen Ganley said in November.

Weeks later, Nova Scotia Justice Minister Mark Furey said it will be illegal for private businesses to sell recreational marijuana here. “Our objective is to secure the product locally,” he said. He explained the Liberal government picked the NSLC because it has the “experience and expertise” to sell restricted products.

McLellan’s task force is strongly against selling it with alcohol. “That is not a good thing. The chief medical officers of Canada, doctors generally — anyone in the health and public safety areas — made it very plain to us that selling alcohol and cannabis out of the same retail outlet could have very serious public health and safety consequences.”

She hopes provinces learn from each other as legalization gets underway, and ensure that employees — private sector or public sector — are properly trained to sell marijuana. “We also advocated caution in the early years. There’s a lot we don’t know. There will be surprises,” she says. “This is a major transformative move, taking a heretofore prohibited substance and making it a legal commodity.”

She notes that Colorado legalized it and was surprised to discover a huge demand for edibles. That meant they had to put warning labels on the packages, figure out the limit for THC in pot brownies and ensure users understood the different effect marijuana has when eaten compared to vaping or smoking. Edibles will remain illegal in Canada until 2019.

A separate impact on the business community will be figuring out how to deal with it in the workplace.

Brian Johnston QC works with the Halifax-based Stewart McKelvey to advise employers on labour and employment law. He says there are two marijuana issues: medical marijuana and the coming legalization of recreational marijuana.

He says about 100,000 Canadians are authorized to use medical marijuana, but he expects it to increase to 450,000 over the next decade. “There continues to be some discussion about whether a person who is using medical marijuana is safe to work in a safety-sensitive workplace. A classic example would be operating heavy equipment,” he says.

As medical marijuana users increase in number, Nova Scotia employers will have to figure out if that prevents employees from safely doing certain jobs.

Post-legalization, medical marijuana will continue to be treated as a prescription and employers can’t ban it under a drug and alcohol or safety policy. But they can say that an employee prescribed medication that impacts their safety or productivity must tell them about it so they can decide how to accommodate the disability which is the trigger for the medication.

“Someone who has a disability is entitled not to be discriminated against based upon that disability and similarly has a right to be respected in relation to the treatment associated with that disability,” Johnston says. “But that accommodation has to be a reasonable accommodation.”

What will be new is legal recreational users. “Canadians are currently amongst the highest users of recreational marijuana in the world,” he says. “The expectation is with legalization, usage will increase.”

For context, about 80 percent of adult Canadians drink alcohol; 20 percent use marijuana recreationally. Even if that doubles, it’s still half of the drinking population. “I don’t advocate starting over because if you have a policy, it’s always better to try to improve it and adjust it to future circumstances,” he says. “But policies will have to be adjusted.”

He advises employers to treat legal recreational marijuana as a public health issue first and foremost. “It is going to be legal, but so is alcohol and so is tobacco.” He says employers could have a role to play in educating workers on the effects of marijuana, including that it can be addictive.

He cites a 2014 article published in the New England Journal of Medicine that reported long-term marijuana use can lead to addiction. It found about nine percent of people who experiment with the drug will become addicted under the criteria of the Diagnostic and Statistical Manual of Mental Disorders. That number jumps to 50 percent for people who use it daily.

The question then becomes, how can employers legally test for recreational marijuana impairment among their workers?

He points to Toronto Transit Commission, which used an oral swab to test for impairment among staff such as drivers. But that takes days to get to the lab and back.

“It’s generally accepted that 10 nanograms per millilitre equals impairment for marijuana,” he says.

But there is no breathalyzer for marijuana. That leaves a blood sample, which also takes time, and taking an employee’s blood is considered “highly intrusive.” A urine test can detect the presence of marijuana, but it’s not considered as precise as the oral swabs and none are immediate.

“Even though there are challenges in testing, in cost and in detection, the reality is we are going to see much more marijuana in the workplace and that secondly, marijuana is addictive and recognized at a certain level to have a real impact on an employee’s performance and safe operation of vehicles, equipment and critical decision making,” he says.

“It’s a real challenge for employersand does require a lot of time and effort and education with the workforce.” Everyone can agree it’s high time Nova Scotians started asking the questions now, so answers will be in place come this summer.

< Back to Articles | Topics: Positive business environment

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