Cannabis Act (Bill C-45) Passes the Senate

With the proposed federal Cannabis Act (Bill C-45) having passed the Senate on June 8, 2018 with dozens of recommended amendments, the federal government’s June 13 government order demonstrates the ongoing debate between the Senate and the House of Commons regarding the operation and scope of the proposed legislation.

Significant Amendments Proposed

Bill C-45 takes a public health approach to regulating cannabis and cannabis products, with a focus on education, prevention and monitoring. The Senate’s debate on the bill highlighted some key outstanding issues with the federal government’s proposed regulatory scheme, resulting in numerous recommended amendments that relate to the law’s interaction with health, policing and justice, including proposals to:

• allow provinces to ban home cultivation altogether;
• loosen restrictions on social sharing;
• require the maximum potency of cannabis products to be set in the regulations;
• clarify the scope of contractual arrangements under cannabis licences;
• allow extrajudicial measures provided in the Youth Criminal Justice Act to operate in place of criminal sanctions for youth; and
• require future proposed rules on cannabis products to first be presented to Parliament to allow for inquiries or public hearings.⁺

The Debate

While Bill C-45 still needs to go before the House, the federal government has already rejected a number of the more significant proposed Senate amendments in its government order. The rejections include the Senate’s proposals to:

• permit provinces to ban home cultivation;
• loosen restrictions on social sharing; and
• establish a public registry of cannabis companies and their investors.

It remains to be seen what the federal government will do with other amendments proposed by the Senate and final structure of the bill before sending it back to the Senate for voting. It also remains to be seen whether the federal government’s response will entrench the Senate in its position on some or all of its proposals, and potentially cause further delay with the passage of the Bill.

Impact on Indigenous Nations

Apart from the ongoing debate about the amendments noted above, the forthcoming ministerial vote is likely to have implications on how the Cannabis Act will be implemented provincially, and how the licensing and regulation of cannabis will impact Indigenous Nations.

Several Indigenous Senators have raised concerns that implications of the pending legalization on Indigenous Nations has not been sufficiently considered. These concerns were clearly articulated by the Standing Senate Committee on Aboriginal Peoples, who recommended amendments to Bill C-45 that targeted its potential to disproportionately affect mental health and substance use issues within Indigenous communities, as well as concerns over the role of Indigenous governance and control over cannabis licensing. Notably, before the Senate vote, federal cabinet ministers issued promises of more funding for Indigenous mental health and addiction treatment services, special help for Indigenous businesses to navigate the licensing process to grow cannabis, and consultation on jurisdictional and revenue-sharing issues.

Opportunity for Consultation

What this promised consultation process will look like and what implications it will have for the nascent federal law are unclear. However, renewed consultation efforts may provide an opportunity for the federal government to engage Indigenous considerations in their review of the Senate’s amendments. This may be significant for many Indigenous Nations who, according to the Standing Senate Committee’s report, experienced “an alarming lack of consultation” during the drafting of Bill C-45.

Whether or not this promised consultation will be adequate and effective in the eyes of Indigenous Nations remains to be seen. In any case, the Senate’s view of Bill C-45 highlights the need for federal and provincial governments to engage Indigenous voices and governments early in the legislative drafting process. This is especially true when a proposed law touches on key issues affecting Indigenous Nations, as in the case of the proposed Cannabis Act.

Want More?

These groundbreaking changes are ridiculously interesting. We’ve talked about them before (remember this and this?) and we’re going to keep on talking. Stay tuned for more posts or give us a shout if you need some guidance in this area.

⁺This would include regulations addressing edibles and vaping products; scheduled to be considered 12 months after the law comes into effect.