June 01, 2018

Cannabis Legalization: High Time for Municipal Regulation

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Weed vendors and consumers will soon be legal in Nova Scotia and we wonder if municipalities are ready.

The relevant federal act – the Cannabis Act (“the Act”) is now before the Senate and the provincial government’s Cannabis Control Act (“the CCA”) has already received royal assent. But, question whether municipalities are exercising their authority to manage the imminent local challenges and opportunities.

The federal legislation regulates cannabis production, establishes 18 as the minimum age requirement, restricts home grow cultivation to a maximum of four plants per dwelling and sets the rules and parameters around possession limits, trafficking and advertising. The federal government hopes to implement the Act by the end of this summer.

Nova Scotia’s legislation outlines several more restrictive provisions. These provisions prohibit cannabis use while in any vehicle (including boats), limit possession to 30g in public and raise the minimum age limit in Nova Scotia to 19 for cannabis use, purchase, cultivation and possession.

Within the CCA there are also transitional amendments meant to smooth the legalization process by reconciling any conflicting legislation. Most notably, the CCA includes amendments to strengthen the Smoke-free Places Act with additional protections from second-hand smoke.

The CCA designates the Nova Scotia Liquor Corporation (“NSLC”) as the sole authorized cannabis seller within Nova Scotia and empowers the NSLC to wholesale, store, distribute and sell cannabis in a manner that complies with federal requirements. Recreational cannabis will be sold online and for the time being, in only 12 of NSLC’s retail locations.

Over the next few months Municipal governments will have to answer to concerned voters and hungry entrepreneurs questioning the impact of cannabis legalization on their local communities. Municipalities will need answers to questions about cannabis regulation, including where people are allowed to smoke cannabis and where cannabis-related businesses will be allowed to operate. Next to schools, churches, hospitals?

Obviously, municipal governments are uniquely positioned to address these concerns as they can control the location and density of cannabis-related businesses and can anticipate the tolerance for public use of cannabis in their communities.

Municipalities can regulate land-use through zoning bylaws dealing with permitted uses of the land, the location of buildings and structures on a property, the type of building, any lot size and parking requirements, building height and applicable setbacks from the abutting property. Setbacks will be of particular importance in managing personal cultivation in residential areas should a municipality allow cannabis plants to be grown outdoors.

Federally-licensed production facilities will raise land use planning considerations. Currently there are only three licensed companies in Nova Scotia. The Federal Act strictly regulates who can grow cannabis for commercial distribution. Municipal governments will need to work cooperatively with the Federal government on applicable zoning and land use planning for production facilities.

As the NSLC will be able to authorize alternate cannabis sellers, clear amendments to zoning bylaws to properly regulate where business operators are allowed to set up shop will be key in ensuring the appropriate regulation in terms of location and density of cannabis-related businesses. These bylaws will enable municipal governments to better manage the impact of these businesses on local communities.

Amendments to the Smoke-free Places Act also raise zoning concerns by enabling municipalities to designate smoking or vaping areas. Municipal bylaws will require clear definitions outlining what constitutes an authorized seller premises, a federally-licensed production facility and a designated smoking or vaping area.

We can also assume that municipalities will be drawn into enforcement, which may require significant resources in order to manage local zoning and density bylaws, personal cultivation and possession, enforcement of impaired driving rules, smoking restrictions and public nuisance complaints.

Municipalities will need to develop protocols and parameters around issuing tickets related to cannabis consumption and new training for municipally delivered police, bylaw officers and public health education officials.

And what about the odour? Municipalities will inevitably be drawn into the mediation of disputes between neighbours who are suddenly subjected to the unique aroma of cannabis. Regulating this will be challenging as it is difficult to accurately measure, assess and record odours in a fair and consistent manner.

The key concerns that local governments must address include land use policies and zoning of both authorized cannabis sellers and federally licensed production facilities, the enforcement of new regulations, public health education and the inevitable concerns around the unique aroma associated with the production and use of cannabis.

Municipal leaders know from experience that when local problems develop from federal legislation, municipal leaders hear first from concerned, and sometimes angry, citizens.

Municipalities should act now to implement regulations designed to address the compliance challenges and cost issues resulting from cannabis legalization. Local governments should identify the specific issues in their municipalities and implement the required bylaws or amendments, ideally before cannabis is made legal.

This problem will not take care of itself. The Federal government has kept its campaign promise, and whether they like it or not, Municipalities must deal with the consequences.

Kevin Latimer, Q.C., is a partner in the Halifax office of Cox & Palmer. He practices in the areas of municipal and planning law, administrative law, and public law litigation and can be reached at 902-491-4212 or e-mail at coxandpalmer.com.

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