PURPOSE To present information and options for Council in regards to the impending federal legalization of recreational cannabis.

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1 REPORT TO: Loranne Hilton Date: April 20, 2018 Chief Administrative Officer File: FROM: RE: Laura Beckett Planner RECREATIONAL CANNABIS INTRODUCTION To Council May 7, 2018 POST SCRIPT: Provincial legislation regarding cannabis was introduced on April 26, 2018, after the writing of this report. It is not possible to know what the outcome of the debates and the resulting final legislation will be. The course of action recommended in this report remains the same. PURPOSE To present information and options for Council in regards to the impending federal legalization of recreational cannabis. BACKGROUND History Cannabis, including marihuana, is a controlled substance and falls under the jurisdiction of the federal Controlled Drugs and Substances Act. Over time, three different regulations have affected the access to cannabis as a medical substance for private individuals. The current regulation, the Access to Cannabis for Medical Purposes Regulations ( ACMPR ), is divided into two parts: the first part regulates cannabis production and sale by federally licensed producers to authorized (doctor prescribed) users only via secure shipping; and the second part regulates personal production by registered (or authorized) persons and production by designated persons for registered (or authorized) persons. There is no provision for retail sales of medical cannabis. Federal and Provincial Authorities Recreational Cannabis The federal government is preparing to enact legislation that would allow for and control the personal possession of recreational cannabis. Specifically, the federal government would establish and maintain a national regulatory framework for: Individual adult possession, including possession and home cultivation limits; Production of all cannabis products and licensing of producers; Registration and tracking of cannabis from seed to sale; Criminal penalties for drug-impaired driving, for those operating outside the legal system (target is organized crime), and for offences where the possession, production, distribution or sale is above the limits; and Promotions and advertising, including packaging, labeling and display. This federal action, once it occurs, would give powers to the provinces in regards to: Licensing the distribution and retail sale of recreational cannabis; Carry out associated compliance and enforcement activities; Traffic and safety laws to address cannabis-impaired driving; Area restrictions for where cannabis may be cultivated and consumed; and Rules for cannabis-based businesses. Page 87

2 While the federal government will establish minimum requirements for the following, provincial governments will be able to: Increase the minimum age for purchase or consumption to over 18 years Lower the household cultivation limit of 4 plants Lower personal possession limit of 30g If a province does not establish its own distribution and retail sale system, cannabis will be available to individuals through a federally authorized online retail system. Status of Medical Cannabis For the immediate future, there will be two regimes. The Access to Cannabis for Medical Purposes Regulations (ACMPR) will remain the authority in regards to medical cannabis: Medical practitioners will be able to continue to prescribe cannabis for medical purposes; Individuals with a prescription, including those under 18, will continue to be able to access medical cannabis either through: o Personal cultivation or cultivation through a designated person; or o The federally licensed commercial facilities. The proposed federal legislation will allow those who are licensed under the ACMPR for commercial medical cannabis production to automatically be authorized under the new legislation. These licensees will also be deemed to hold licenses for the production of recreational cannabis. Projected Provincial Approach BC has not yet passed any legislation in regards to recreational cannabis. Local governments only have powers expressly given to them by the province, and do not have the ability to regulate in areas of federal jurisdiction. It appears that the provincial approach may: Follow that of the federal government in regards to personal public possession limits (30g), personal cultivation (4 plants per household); Establish its own retail and distribution framework. Currently, it is expected that an applicant for a non-medical retail cannabis store will have to acquire local government support to operate a store in a community before the province would issue a license; Establish its own framework to prohibit and penalize drug-impaired driving; and Establish a minimum age of 19 for possession, purchase and consumption of cannabis. This is consistent with BC s age of majority and the minimum age for alcohol and tobacco. It is problematic for local governments to take appropriate action in the absence of clear and certain direction from the province. Local Government Authority Relevant to the proposed federal cannabis legislation, local governments have authority over public safety, land use, and business licensing. Thus, there are some powers available to local governments to regulate cannabis within their jurisdictions. Lands within the Agricultural Land Reserve (ALR) have significantly less ability to be regulated with respect to cannabis cultivation than lands outside this provincial authority, due to a provincial decision that cultivation of cannabis constitutes a permissible farm use within the ALR. There are no ALR lands within the District of Highlands. Page 88

3 The main concern in regards to local government land use and the legalization of recreational cannabis relates to the potential for non-conforming uses. Right now, because recreational cannabis is prohibited federally, it follows that any related use of land/buildings/structures is likewise prohibited. Once recreational cannabis becomes legal, there is a concern that if there are no bylaws yet in place to control or prohibit its related land uses (growing, retail sale, commercial production, etc.), any such land use which commences prior to the imposition of land use regulations specifically tailored to prohibit or restrict cannabis-related land use in the District may be considered non-conforming and be allowed to continue. Thus, staff is of the opinion that a restrictive initial approach will allow the District the greatest amount of control. Many local communities appear to be taking a similar direction, which is mirrored from published municipal legal articles on the topic. Other reasons for an initially more restrictive approach include the following: In the absence of clear direction from the province, local government powers are unknown. Because the federal legislation will give the provinces the ability to further regulate limits for both personal possession and household cultivation, there is a chance that the provincial government may pass this power on to local governments. Alternatively, there is chance that the provincial government may ultimately choose to adjust (lower) the limits it currently suggests. Recreational cannabis is a controversial subject with many perspectives. It behooves local governments to seek resident input into any regulatory regime. The federal laws may be passed as early as July of this year, and in the continued uncertainty about provincial law, there is not enough time to conduct meaningful and informed public consultation. It would be appropriate to include Highlanders input into any regulation that may see cannabis-related land uses permitted. In regards to the District s Public Participation / Community Engagement Policy ( ), staff is of the opinion, at this point, that the engagement level in regards to recreational cannabis is somewhere between consult and involve. CRD It is noteworthy that the CRD recently amended its Clean Air Bylaw to include any substance vaped or smoked, thus restricting the consumption of cannabis from public areas of the CRD. This includes all typically public indoor areas (business, schools, etc.), patios where food and beverages are served or consumed, parks, playgrounds, beaches, public squares, and bus stops. This link provides detailed information: Page 89

4 Other Local Municipalities Esquimalt Will consider zoning amendment to prohibit all retail cannabis sales in the Town. Any property wanted to carry out that use would have to rezone to explicitly permit it. Langford Sale and distribution of cannabis except through a licensed pharmacy has been prohibited since They are waiting until provincial direction is clear before making any other decisions. Metchosin Similar to North Saanich, cannabis production cannot be prohibited on ALR land. It appears that regulations will likely be focused on controlling the retail sale of cannabis within their commercial area. No decisions have been made to date. North Saanich Direction is to continue to regulate cannabis (both medical and recreational) on ALR land, and charge a fee for any business license associated with retail sales. Cannabis cultivation, production, and retail sales on non-alr land would be prohibited. Sidney Direction to develop an approach to review and amend regulations and policies. A report is expected soon. View Royal Council considered draft bylaw(s) that would prohibit all recreational cannabis land uses and enforce such prohibitions at their April 10, 2018 Committee of the Whole Meeting. Previous Highlands Experience Medical Marihuana With the introduction of federally regulated commercial medical cannabis facilities under the former Marihuana for Medical Purposes Regulation, Council, in 2014 amended the Zoning Bylaw to prohibit such use of land and buildings/structures in all zones. While this did not predetermine any rezoning application that might be submitted for Council consideration, it did communicate that the District preferred to proactively pre-empt any such facility within the District outside of a public process and explicit approval. Staff suggests a similar approach with recreational cannabis. OPTIONS 1. That Council give Bylaw 407 first and second readings, and schedule a public hearing for June 4, 2018 at the School House, and that Council direct staff to draft a bylaw to amend the Municipal Ticket Information Bylaw to include offences in relation to draft Bylaw That Council direct staff to provide wording to implicitly allow the federal personal cultivation limit of four plants per household. 3. That Council take no action at this time. DISCUSSION Option 1 Please see attached draft bylaw 407. The proposed language would automatically prohibit cannabis production, cannabis sales, and medical cannabis production, as defined unless they were to become explicitly permitted, for example, through a subsequent and site specific rezoning application. This general approach is consistent with many zoning bylaws, including Highlands. Page 90

5 The proposed definitions are consistent with the ACMPR and thus compliant with the Canadian Constitution (Charter of Rights and Freedoms) in that they exempt personal production under a Health Canada license in someone s home or in the home of a designated person. The proposed amendment would also implicitly prohibit the federal recreational four-plant per household allowance. This recommended approach would not be inconsistent with the proposed federal legislation because that legislation is proposing to pass the power to reduce this limit to the provinces. Because there is no draft provincial legislation, there is no approach with which to be inconsistent. Once provincial legislation is proposed, District staff would review District regulations that are in place to assure they are consistent. As well, once provincial legislation is known, Council may wish to take other direction. Otherwise, should provincial legislation match the currently suggested limits for personal cultivation, staff understands that the provincial legislation would override the District s implicit prohibition of growing four plants per household, and thus no further amendments for consistency with provincial legislation would be required. Enforcement If Council were to approve this bylaw, the District has the power to also amend its Municipal Ticket Information (MTI) Bylaw to include these uses as an offence to the Zoning Bylaw. Staff is advised that there has not been significant success using an MTI bylaw as an enforcement tool, and that more success has been seen by filing a petition through the BC Supreme Court. However, that experience is in relation to cannabis dispensaries, which are much more common in more urban municipalities. Filing a petition to the BC Supreme Court would involve significantly more expense to the District. Thus, while the MTI fine would not be as effective, it may be an easy and cost-effective approach as the District considers enforcement tools to align with the prohibition suggested by staff. Should Council be supportive of draft Bylaw 407, Council may wish to also direct staff to draft a bylaw to amend the Municipal Ticket Information Bylaw. This would return to Council as soon as possible to allow for all bylaws to be adopted prior to July 1 st, which is the possible date for royal assent of the federal laws. Option 2 Council may wish to not implicitly prohibit the four plants per household limit. This would require different bylaw wording, and staff could provide this to Council at a subsequent meeting. Staff does not recommend this approach because: 1. Provincial direction is not known, and a bylaw beginning to attempt to regulate as opposed to prohibit something that isn t yet provincially regulated can be inherently problematic. If the province imposes different limits, such a bylaw could be inconsistent with provincial legislation. 2. With this approach, it is expected that a further bylaw amendment upon provincial law coming into action would be needed. 3. Until meaningful and informed public consultation can occur, any change from what people are used to could be problematic. Staff suggests that any consideration of regulating (as opposed to prohibiting) recreational cannabis may be an avenue to pursue only after public consultation has occurred. Page 91

6 Option 3 Remaining silent on recreational cannabis with respect to land use could severely hamper the District s ability to regulate and/or prohibit land uses after the federal laws come into effect. Staff does not recommend this option. CONCLUSION The legalization of recreational cannabis will impact communities social fabric, emergency services, natural environments, agricultural lands, and infrastructure/resources across the country. An initial restrictive approach will allow the District the time necessary to make an informed decision in light of both community input and provincial direction. Option 1 provides for a restrictive initial approach along with some degree of enforcement through the Municipal Ticket Information Bylaw authority. Should the province pass legislation that matches their proposed approach, Option 1 would allow for consistency with such legislation. RECOMMENDATION That Council give Bylaw 407 first and second readings, and schedule a public hearing for June 4, 2018 at the School House, and that Council direct staff to draft a bylaw to amend the Municipal Ticket Information Bylaw to include offences in relation to draft Bylaw 407. Respectfully submitted, Concurrence Laura Beckett, M.U.R.P., MCIP, RPP Municipal Planner Loranne Hilton, Chief Administrative Officer Attachments: 1. Draft Bylaw 407 Useful websites: 1. Government of Canada Cannabis homepage: Your Cannabis Questions, Answered, : 2. Government of BC Cannabis homepage: 3. CRD Clean Air Bylaw 2018 Update: Page 92