Law Times

Law Times • sepTember 10, 2018 Page 5 www.lawtimesnews.com Cannabis retail plan opt-out option criticized BY ALEXIA KAPRALOS For Law Times O ntario is allowing some municipalities to opt out of the prov- ince's cannabis retail plan, but will it ultimately hurt the communities that choose to do so? Plans for the sale of recre- ational cannabis once it be- comes legal Oct. 17 have been changing since the Ontario Pro- gressive Conservative govern- ment took power in the prov- ince. Premier Doug Ford's govern- ment has stated that it wants to allow private retailers to operate stores with government licenc- es, but it would allow for munic- ipalities to opt out of permitting brick-and-mortar stores in their communities. The final date of the opt-out period has not been set. "If a municipality does opt out, its residents will still find ways to [legally] purchase and consume. I think it's worth looking at the economic angle to that and, really, from that per- spective, it doesn't seem to make sense," says Toronto-based law- yer Caryma Sa'd. "Is this based on any sort of evidence or is it a gut reaction to legalization and maybe un- founded fear?" On Oct. 17, the Ontario gov- ernment will be the only legal seller of recreational cannabis in the province. The plan is for customers to purchase it online and have it mailed to them. Eventually, the f loor will be opened to private cannabis retail stores in mu- nicipalities that have agreed to provide government-issued li- cences. Matt Maurer, partner and vice chairman of the cannabis law group at Torkin Manes LLP in Toronto, says he has "strug- gled to see a lot of pros" with the idea of opting out. He says that while he sees the benefit of the opt-out op- tion for historic districts trying to preserve heritage locations, the decision for communities that have announced their in- tent to opt out, such as Oakville, Markham and Richmond Hill, seems like "a knee-jerk" reac- tion. In fact, Sa'd says, opting out would result in fewer job op- portunities and less customer traffic for that particular mu- nicipality. "I see it as more detrimental," she says. Once the opt-out period is over, communities won't be able to opt out of the cannabis retail plan. Maurer says it is likely that municipalities that have opted out will be able to opt in in the future, but nothing is con- firmed, especially since the provincial Cannabis Act passed under the former Liberal gov- ernment will be amended by the Ford government before the Oct. 17. legalization date. While municipalities have the power to opt out of operat- ing private brick-and-mortar retail stores within their com- munities, by law, they won't be able to ban the consumption of cannabis within the confines of people's homes due to the fed- eral Cannabis Act, Bill C-45. Maurer says that for medi- cal marijuana, not much will change once the retail plan for recreational marijuana and its opt-out option roll out. People who require medi- cal marijuana, who possess the required medical documenta- tion, will still be able to access it by purchasing directly from a licensed producer and having it mailed directly to them via Canada Post courier. But how will the government and each municipality enforce when and where cannabis retail stores can and can't operate? The short answer: It's unknown at this point. "[Cannabis laws are in] a huge state of f lux," says Sa'd. "There are almost daily changes and updates, and I think it will be some time before this area of law is settled." Rather than offering the opt- out window, Maurer suggests controlling cannabis retail with zoning and municipal bylaws to restrict where stores can operate because it provides f lexibility. "Why opt out entirely?" he says. Annamaria Enenajor, part- ner at Ruby Shiller Enenajor Di- Giuseppe Barristers and direc- tor of the Campaign for Canna- bis Amnesty, says she thinks the federal government's move to legalize cannabis is because the government recognizes that the harms caused by the drug don't come from the responsible use of the substance or access to it. "Fear of the unknown drives a lot of these opt-out policies, and they're not based on any evidence that these opt-out policies or refraining from par- ticipation in the legal industry would be beneficial to com- munities and be protective of young people or other vulner- able members of communities," she says. "That's the assumption that underlies a lot of the decisions to opt out, that 'Our commu- nity does not want to participate in this.'" Whitney Abrams, an as- sociate at Minden Gross LLP, said one issue with the opt-out plan "is that the opportunity to opt out is a one-time offer, as it stands today." "Although a final opt-out date is on the horizon, it hasn't been set. The effect? Fear of the 'unknown' has the potential to strike panic into local munici- palities and politicians into rush decision-making," she says. "By not having sufficient time to consult their communi- ties, municipalities may decide to opt out at first instance in order to not miss their oppor- tunity to do so, while keeping their option open to opt in at a later date. "This is because Ontario's government has confirmed that the ability to opt in will be avail- able." Abrams adds that this means, "from a legal standpoint, law- yers will be faced with advising municipalities on how to best identify and control the con- cerns associated with cannabis retail and how to come up with workable, legal solutions outside of opting out completely." LT — With files from Gabrielle Giroday NEWS Order # 804218-65203 $537 2 volume looseleaf supplemented book Anticipated upkeep cost – $480 per supplement 4-6 supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Jurisdiction: Canada (National) Cited by the Supreme Court of Canada Canadian Employment Law Stacey Reginald Ball "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." 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