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Legal lessons for NZ as Canada moves towards legalising cannabis

15 November 2017 - By Nick Butcher

One of the deals the Green Party achieved in their agreement to be in Government with Labour was to get a public referendum on legalising marijuana for personal use by 2020.

The Green Party already has MP Julie-Anne Genter’s Misuse of Drugs (Medicinal Cannabis and Other Matters) Amendment Bill in the ballot box.

Ms Genter is the Minister of Women, Associate Minister of Health and Associate Minister of Transport.

Her Bill before Parliament would legalise access to cannabis products for New Zealanders suffering from terminal Illness or any debilitating condition.

So what could a possible law change making cannabis legal on a wider scale similar to the way alcohol is, look like?

This assumes New Zealand would regulate cannabis through an age restriction for users.

Legalising it would have ramifications for other laws which have long governed how society is run in New Zealand. And there would most likely need to be amendments to various pieces of key legislation.

Canada is well ahead in progressing a law change

A good example is that of Canada, where earlier this month at the Legislative Assembly of Ontario, Bill 174, the Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act was introduced.

If enacted, it would pave the way for the creation of the Cannabis Act 2017 which could result in the mainstream legalisation of cannabis in Canada from July 1, 2018.

Some areas of law would need to change in Canada to make way for this new Act.

This includes the Smoke-Free Ontario Act and the Electronic Cigarettes Act 2015. These would need to be repealed and replaced by the Smoke-Free Ontario Act, 2017.

The new Act applies to tobacco products, vapour products and medical cannabis, and to other products and substances that may be prescribed in the regulations.

Some of the provisions of the Smoke-Free Ontario Act, 2017 include:

  • It is prohibited to sell or supply tobacco products, vapour products and prescribed products and substances to persons under 19.
  • Restrictions are placed on the display and promotion of tobacco products, tobacco product accessories, vapour products and prescribed products and substances.
  • The sale of tobacco products, vapour products and prescribed products and substances is prohibited in certain places. (Some examples: pharmacies, hospitals and schools.)
  • Prescribed signs in retail stores are required with respect to tobacco products, vapour products and prescribed products and substances.
  • Tobacco products, vapour products and prescribed products and substances must be packaged in accordance with the regulations.
  • Restrictions are placed on the sale of flavoured tobacco products and certain flavoured vapour products and prescribed products and substances.
  • Subject to certain exceptions, vending machines for selling tobacco products, vapour products and prescribed products and substances are prohibited.

The smoking of tobacco or medical cannabis, the use of electronic cigarettes and the consumption of prescribed products and substances is prohibited in places, such as enclosed public places, enclosed workplaces, schools, child care centres, and the reserved seating areas of sporting arenas. This is subject to certain exemptions, such as controlled use areas in long-term care homes, and designated hotels rooms.

Home health-care workers would be protected from the use in their presence of tobacco, medical cannabis, electronic cigarettes and prescribed products and substances.

There would also be a prohibition on smoking cannabis in a motor vehicle in presence of people under 16 years old.

Canada has made amendments to the Highway Traffic Act in relation to driving with alcohol or drugs present in the body including:

  • That it is a condition of the driver’s licence of novice drivers and young drivers that there be no drug in the driver’s body while driving. If a driver contravenes the condition, the driver is guilty of an offence and on conviction is liable to a fine between $60 and $500. In addition, the driver’s licence of a young driver is suspended for 30 days, and the driver’s licence of a novice driver may be suspended, cancelled or changed by the Registrar in accordance with the regulations.
  • Driver’s licence suspensions for a period between three and 30 days if a novice driver, young driver or driver of a commercial motor vehicle is found to have a drug in his or her body while driving.
  • Exceptions are made to the rules respecting driving with a drug in the body if a police officer is satisfied that the driver is legally authorized to use the drug for medical purposes.

There’s also the big question of who can and cannot sell cannabis products which would be managed under another piece of new legislation.

The cannabis retailer

Cannabis products would be regulated under the new Ontario Cannabis Retail Corporation Act 2017.

There are many regulations and rules including:

  • No person shall sell cannabis, other than the Ontario cannabis retailer.
  • No person shall distribute cannabis that is sold, or that is intended to be sold, other than by the Ontario cannabis retailer.
  • No person shall knowingly sell or distribute cannabis to a person under 19 years of age.
  • No person shall sell cannabis or, if cannabis is not provided to the purchaser at the time of sale, no person shall deliver purchased cannabis, to a person who appears to be under 25 years of age unless the person selling or delivering the cannabis, as the case may be, has required the person receiving it to provide a prescribed form of identification showing his or her age, and is satisfied that the person is at least 19 years old.
  • No person shall knowingly sell or distribute cannabis to a person who is or appears to be intoxicated.
  • No person shall purchase cannabis except from the Ontario cannabis retailer.
  • No person under 19 years of age shall possess, consume, and attempt to purchase, purchase or distribute cannabis.
  • No person under 19 years of age shall cultivate, propagate or harvest, or offer to cultivate, propagate or harvest, cannabis.

And landlords of properties would be prohibited from allowing their dwelling to be used as a place of sale of cannabis products.

And just like alcohol laws in many jurisdictions, no person would be able to consume cannabis in:

  • a public place
  • a workplace within the meaning of the Occupational Health and Safety Act
  • a vehicle or boat

If New Zealand was to partially legalise cannabis for medical purposes, any law change would have to determine where people who are authorised to smoke cannabis for medical reasons can do this, in public places and under what circumstances.

Penalties for breaking Cannabis retail laws in Canada are high...

The penalties in Canada for breaking the new cannabis law in respect of sales and distribution are quite severe at the higher end. However they’re designed to punish the unregulated trade of cannabis products.

For retailers it includes fines of up to $250,000 or two years imprisonment, and an individual who breaks the law could face up to a $100,000 fine or one year in prison.

Impact on current laws in NZ if Cannabis is legalised

So what impact could legalising cannabis have on current laws in New Zealand?

Barrister, Dr Don Mathias wrote the book Misuse of Drugs. For many years it has been regarded as the core reference on the laws of drug misuse and trafficking.

He says there are several  pieces of legislation that could potentially be impacted by a law change and he has a long list of questions that would need answered.

  • Should use of cannabis be subject to restriction for people who are on supervision, (Sentencing Act 2002), or on bail (Bail Act 2000) or on parole (Parole Act 2002)?
  • Will cannabis be a prohibited item under the Public Safety (Public Protection Orders) Act 2014?
  • Will cannabis use by children or young persons be an infringement offence or will the Youth Court be involved (Oranga Tamariki Act 1989)?
  • Will the requirements of the Food Act 2014 apply to cannabis, or will cannabis be excluded as a psychoactive substance?
  • Will the Substance Addiction (Compulsory Assessment and Treatment) Act 2017 apply to cannabis?
  • To what extent will corrections officers have powers in relation to Cannabis (Corrections Act 2004)?

There’s also the question of whether members of the armed services and the police have rights to use cannabis, or will they be subject to controls or prohibitions?

Don Mathias says the Land Transport Act 1998 already has provisions concerning alcohol and drugs, and the definition of “qualifying drug” currently includes cannabis plant.

Further more, he adds that questions will arise over what should be done about existing convictions.

“Should they be expunged, and should there be an official apology, and even compensation? Legalisation would be likely to be followed, perhaps decades later, by a sense of the absurdity of the current law, and these remedies may later seem more appropriate than they do now,” he says.

Dr Mathias says while careful consideration would need to be given to changes that would need to be made to existing legislation, that task would not be as great as it sometimes is when a fundamental reform is undertaken.

In relation to legalising the personal use of cannabis, Dr Mathias says there would be various ways of doing it.

“I don’t know what form the legalisation is proposed to take, but an option would be to leave larger quantities of cannabis in the Misuse of Drugs Act and just take out small amounts for personal use, which could then be deemed to be approved products under the Psychoactive Substances Act,” he says.

Either way, he says, legalisation wouldn’t seem to create undue difficulties for legislators, but would require a bit of tweaking of current laws.

Last updated on the 16th November 2017