Is Ontario’s Legal Cannabis Monopoly Constitutional?

Article by Harrison Jordan, Leafly

Is Ontario’s Legal Cannabis Monopoly Constitutional? HARRISON JORDAN

The Supreme Court of Canada is about to consider the impact of the country’s legalization plan on the country’s interprovincial trade. Canada’s top court has accepted an application from cannabis-related companies to intervene in an upcoming case that some are saying could have wide implications for interprovincial trade in the country.

In 2016, Gerard Comeau of Tacadie, New Brunswick was fined almost $300 for bringing more than 14 cases of beer into the province. (New Brunswick is home to laws that restrict the amount of alcohol that can be brought across its border.) The charge was later overturned at the New Brunswick Court of Appeal, and a subsequent appeal by the Crown means the country’s top court will wade into the boozy feud.

Now, Cannabis Culture, the marijuana lifestyle brand that once franchised its name to dispensary locations across Canada, has hired prominent cannabis lawyer Kirk Tousaw to apply as an intervenor in the Comeau case. Their application is also being submitted on behalf of 28 other corporations and non-profits, which collectively operate 100 dispensaries across the country.

In their application, Tousaw says that Cannabis Culture believes the upcoming ruling is “of pressing and substantial importance” because provinces “could create barriers to the free trade of cannabis products from Province to Province … and could constitute an infringement of s. 121 of the Constitution Act of 1867.”

 Tousaw is hoping to use the case to dismantle the Ontario government’s planned cannabis monopoly – or at least get the conversation going on it. “It is Cannabis Culture’s position that the [Liquor Control Board of Ontario]’s control over all recreational cannabis distribution and sale is overly restrictive and amounts … to a form of interprovincial trade barrier.” He submits that any province seeking to “exert exclusive control over the distribution and sale of cannabis and cannabis derivative products through a Provincial entity” is in effect creating such an unconstitutional trade barrier. The application asks the Supreme Court to confirm the decision of the New Brunswick Court of Appeal, which rejected the charge against Comeau.

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