Legal eye Bill Blair talks taxation, cultivation and First Nations
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Hey there, time traveller!
This article was published 11/12/2017 (1704 days ago), so information in it may no longer be current.
In his role as parliamentary secretary to the ministers of health and justice, Member of Parliament Bill Blair is involved in federal efforts to legalize cannabis. The former Toronto chief of police is frequently called upon by the Liberal government to explain its position on various aspects of the legislation.
The Leaf spoke to Bill Blair by phone on Dec. 7. This transcript has been lightly edited, but not condensed.
The Leaf: I want to talk about the underlying principles behind the equal taxation regime for recreational and medical cannabis. In a scrum on Nov. 10, you said the government made that decision in line with the recommendations of the federal task force on legalization, and they did indeed recommend that, but the task force didn’t go into much detail about why they thought it’s important to tax medical and recreational cannabis at the same levels. I’m hoping you can explain the policy reasoning behind that decision by your government.
Bill Blair: First of all, there’s some legal reasoning behind it as well. That comes from Schedule 6 of the Excise Act. This matter has actually been litigated. In that schedule, prescription drugs are zero-rated. The issue of medical marijuana has actually been litigated in the courts, and the jurisprudence indicates that this does not qualify for zero-rating under that schedule.
In addition to that, the task force looked very carefully at what the courts had said with respect to medical marijuana as an exemption from the existing prohibition. It said that marijuana should be available to those who required it for medical purposes with reasonable access, choice, quality and price.
And of course, that’s exactly what we’re trying to achieve with the new non-medical market, in that it has to be competitive in quality, access and price, with the illicit market. So the new regime that’s being established is being established with a view to being able to provide that price competition with the illicit market.
And finally, we’ve received a lot of evidence from organizations like the Canadian Medical Association and the Canadian Public Health Association, who expressed concern about maintaining the integrity of the medical marijuana system by not creating financial incentive for people to participate in that system.
The Leaf: So the idea is that the financial incentive would lead to people participating in the medical marijuana system just because they want to buy cheaper cannabis?
Bill Blair: So let me be very clear that I’m not in any way questioning the legitimate medical use of cannabis. That is an issue that has already been determined by our courts. But at the same time, there was a concern expressed by people in the medical profession about individuals who may choose to use the medical regime rather than a well-regulated non-medical system.
Using it for legitimate health purposes is quite acceptable; using it for any other purpose would not be.
“There was a concern expressed by people in the medical profession about individuals who may choose to use the medical regime rather than a well-regulated non-medical system.”
The Leaf: Speaking of concerns expressed by the medical community, there are some high-profile non-profit groups calling for your government to change your mind on this. A new letter on this topic addressed to you and the ministers of health and finance is signed by 11 health non-profits, including the Arthritis Society, the Canadian AIDS Society, the Canadian Pharmacists Association, and the Cardiac Health Foundation of Canada.
Their position is that this excise tax being applied to medical cannabis puts an undue financial burden on sick people who may already be spending a lot of money on medical cannabis that helps them manage their conditions.
Given the feedback you’ve been getting from these non-profit groups, is your government possibly open to reversing course on this decision?
Bill Blair: What I can tell you is that four weeks ago we put forward a cannabis taxation framework, a policy document, and we put it forward as a discussion document. And we’ve invited input from people from coast to coast, and we’ve asked Canadians to provide that input, and those organizations have.
That input informs discussion that’s going to take place between our finance minister and his federal and provincial counterparts. They’re meeting to discuss that, and the input that we have received from everyone on this topic will inform that discussion and the decisions that they will make.
The Leaf: Under the federal Cannabis Act, Canadians will be allowed to cultivate up to four cannabis plants in their home, but Quebec and Manitoba have said they won’t allow home growing, and other provinces might follow suit, as is their right.
Is your government concerned about a potential disconnect between federal and provincial law on the subject of home cultivation?
Bill Blair: What our legislation includes is, it creates actually a criminal offence for growing more than four plants. And we are not criminalizing the cultivation of fewer than four plants in a residence — and that’s a total of four plants in the residence regardless of how many people are living there — and so that will not be criminalized under the federal law.
But we’ve also recognized that the provinces and territories have a responsibility and a jurisdictional authority to put in whatever regulations they deem appropriate to maintain the health and safety of their jurisdiction. And so they can, for example, pass provincial regulations that will determine where and under what circumstances that activity may take place under their provincial jurisdiction.
And what we’re saying is, the cultivation of more than four plants will be a criminal offence, but it will not be criminalized to have less than four plants for personal cultivation and personal use.
What we’re saying is, the cultivation of more than four plants will be a criminal offence, but it will not be criminalized to have less than four plants for personal cultivation and personal use.”
The Leaf: The federal Cannabis Act also sets the minimum legal age to possess cannabis at 18, and the provinces can increase that age as they see fit. So far, almost every province has chosen to align their age to use cannabis with the age to use alcohol. In Manitoba, people will be allowed to drink at 18 but will have to wait until they’re 19 to use cannabis.
Keeping in mind what you said, that that’s definitely within the jurisdictional authority of the provincial government of Manitoba, what do you think of that idea from a policy perspective — the idea of a lack of alignment between the age for drinking and the age for cannabis?
Bill Blair: That’s a determination to be made entirely by the province. It’s within their purview and their authority to make that decision, and I would simply acknowledge that there are many considerations in the setting of the appropriate age, and alignment with other regimes such as the alcohol regime would be one consideration, but not the only one.
And certainly there are health considerations and perhaps other considerations a province can take into consideration, and so beyond that I wouldn’t comment other than to simply acknowledge that that’s entirely within the province’s purview.
The Leaf: Moving on from the provinces, I want to discuss another level of government in Canada, which is First Nations, in relation to cannabis legalization. There are many different First Nations and Indigenous communities in Canada, and that means there’s a diversity of opinion on the subject. But it sounds, so far, like many First Nations feel strongly that they want the autonomy to make and enforce their own policies around cannabis in their own communities.
To what degree will your government support the rights of Canada’s First Nations and Indigenous peoples to treat cannabis as they see fit, even if their cannabis policies are out of line with federal and provincial law on the subject?
Bill Blair: The conversation that’s taking place. The nation-to-nation discussions that are taking place on this are very important, and I think it’s very important for us to listen to the perspectives and concerns of Indigenous communities.
I’m not going to comment on the outcome of that, other than to say we recognize its importance. We have been involved in very extensive discussions with our provincial, territorial and Indigenous partners on this, and their input is very important and part of an ongoing dialogue that it is necessary and will take place.
The Leaf: One last question for you, which relates to organized crime in the black market for cannabis. You have personified the black market for cannabis as a “gangster in a stairwell,” and the Health Minister recently said in a scrum that “100 per cent of the cannabis market in Canada is unregulated and operated by organized crime.”
Given your background in policing, I want to ask you to clarify: do you really think the black market for cannabis in Canada is completely controlled by organized crime specifically, or is that maybe overstating the reality of things?
“It’s not all patch-wearing motorcycle-gang members — although they’re certainly involved — but at the same time, it is a criminal enterprise, and one which operates outside of any regulation or control.”
Bill Blair: What I can tell you is, the illicit market is 100 per cent illicit — it’s a criminal enterprise — and that can take the form of a motorcycle gang, street gangs, other forms of organized crime and less organized crime, but it is 100 per cent illicit.
It doesn’t follow any regulation or oversight, and is in no way accountable. It operates entirely outside of the law. It’s all about profit. It makes it a criminal enterprise, and quite frankly, the definition of organized crime is criminal enterprise. And so I believe this is organized crime.
And again, it’s not all patch-wearing motorcycle-gang members — although they’re certainly involved — but at the same time, it is a criminal enterprise, and one which operates outside of any regulation or control.