Law Times

Page 6 September 10, 2018 • Law timeS www.lawtimesnews.com Confrontation looms over pot decriminalization BY IAN HARVEY W ant cheap gas? Cheap smokes? Add cheap cannabis to that list. Some Ontario First Na- tion reserves are growing, processing and selling cannabis organics, edibles and vape juice without a licence. Nor are they collecting the $1-per-gram excise tax for the province, the 2.3-per-cent- per-gram (one per cent per gram for small growers) Health Canada enforce- ment levy and you can be certain they won't be collecting HST. By ignoring the law, they are creating an uneven playing field and potentially setting up a confrontation between po- lice and FN. Unlike those pop-up pot shops and storefront dispensaries that will all feel the heavy hand of enforcement come Oct. 17, there's a question as to whether police have the fortitude or legal author- ity to enter reserves to do their job. Either way, it will end badly. It comes down to money. Large, pub- licly traded, licensed growers have re- ported they can produce weed at about $1 to $2 a gram. In line with general manufacturing business models, there will be a mark-up of at least $2 a gram plus $1-a-gram excise tax and a 2.3-per- cent Health Canada levy, putting the wholesale price at around $7 to $8 a gram. That leaves the retailer at a mark-up of $2 a gram plus HST to hit the government's target price of $10 a gram. Freed of those taxes and levies, unlicensed FNs can sell for half of that. The FN pot shops are a natural and predictable ex- tension of the smoke shacks that have proliferated in the last decade. While both the feds and the province have funded a joint RCMP-OPP Contraband Tobacco Enforcement Team, which has made some large seizures, the sales continue unabated, now augmented by weed. Last spring, the Tyendinaga Mo- hawks hosted the first annual Indig- enous Cannabis Cup, a celebration of weed in all its forms from carefully man- icured and cured buds to sweet edibles to potions, lotions and oils. It attracted vendors from across Canada, many of them unlicensed cannabis growers. Not all FN authorities are playing along. Some FN police services have raid- ed dispensaries, while some chiefs say they will not tolerate growing or selling weed. Given the lack of direction regarding FN in the province's Cannabis Act, 2017 and the Ontario Cannabis Retail Corporation Act, 2017, Six Nations in Brantford is drafting its own regulations concerning cannabis pro- duction and sale on the re- serve. Allan Rewak, executive director of the Cannabis Council of Canada, says C-45 opens the door for FN to participate in the cannabis economy and benefit. "They have the geography to participate," he says. "We hope they will legally partner with others partici- pating in legal retail." Besides, the location of reserves is such that they're not near enough large cities to attract buyers, says Rewak. Still, he says, the cannabis growers' industry believes the province is devel- oping some "stringent tools for the law enforcement community." And there's the legal conundrum. The federal Bill C-45, which kicks off all this, seeks to eliminate the underground market for weed, cut off profits from or- ganized crime and ensure adult Canadi- ans have access to safe, high-quality pot while keeping it away from children. The provinces are charged with ex- ecuting and administering the retail end of things with a secure seed-to-sale sup- ply chain to ensure there's no leakage of product to unauthorized vendors. It being a novelty, weed will doubt- less be sampled by consumers through the Ontario online sales portal and ul- timately from bricks-and-mortar loca- tions when they open next spring, pro- viding municipalities don't veto them. At $10 to $15 a gram, however, many of those consumers will likely drift back to their local supplier, many of whom may be getting their supply wholesale from those same FN reserves. Depending on proximity, others may just drive to a nearby reserve to score at half the price, maybe picking up some cigarettes and gassing up at the same time while scooping edibles, oils, lotions and vape oil, which won't be legal for at least a year. It's classic supply and demand. And it's all so predictable — the gov- ernment's strategy is doomed to fail un- less there is some high-profile enforce- ment, but that means going on to re- serves to make arrests and seizures and that isn't likely to happen. LT uIan Harvey has been a journalist for more than 41 years, writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 Thomson Reuters Canada Ltd. All rights reserved. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . Anita Balakrishnan Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford Back to the grindstone A busy fall season lies ahead for lawyers. Summer is typically thought of as a season best suited for rest and relaxation. But this summer, with a new provincial government in power, the legislature continued sitting into August, with a slate of new announcements that came down the pipeline. Then there's the impending legalization of the use of recreational cannabis coming in October. These changes in policy direction will have wide-reaching impacts for lawyers. Annamaria Enenajor, part- ner at Ruby Shiller Enenajor DiGiuseppe Barristers and director of the Campaign for Cannabis Amnesty, is one of a number of lawyers who have expressed concerns with a cannabis retail plan opt-out op- tion that exists for municipalities in Ontario. "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 re- fraining from participation in the legal industry would be beneficial to communities and be protective of young people or other vulner- able members of communities," she says. But some municipalities beg to differ. This issue of Law Times touches on a variety of issues you'll be sure to hear about in the months ahead. Another piece focuses on an upcoming case before the Supreme Court of Canada. The Supreme Court decision in Tom Le v. Her Majesty The Queen could impact people who currently do not have standing to challenge a search or detention when they are an invited guest on a property. Then there's a section of features on hu- man rights law, which focuses on police carding, legislation related to genetic discrimination, mi- grant workers' rights and an award made by the Human Rights Tribunal of Ontario to a worker who overheard a racial slur. Gear up and read on — there's much to delve into, no matter what your practice area is. LT Queen's Park Ian Harvey

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