October 18 was the fifth anniversary of the legalisation of cannabis in Canada. It was the first G7 nation to take this step. That country’s experience may be of interest to Bermuda as it moves to also legalise the drug. There will be greater clarification of the issues and possible responses regarding the five years after the Report of an Expert Panel due in March 2024. That review is mandated by the Cannabis Act and has been ongoing since the autumn of 2022.

Here I focus on three major aspects of the past five years: the cannabis market, public health and social justice.

The market

Oh, how the mighty have fallen! There were grand expectations for the cannabis market on the eve of legalisation. Projections for production and consumption were lofty.

But the experience of the past five years has proved otherwise. The market, both in terms of production and retail sales, is in big trouble. Too much production. Too few retail sales for too many stores. Investors have exited. Just one example: the stock of Canopy Growth, a big player in the market, was trading at about $68.00 shortly after legalisation. It’s now below $1.00.

The number of adults using the drug has grown to 27 per cent compared with 17 per cent in 2017 when the drug was not legal. Moreover, two thirds of consumers now purchase cannabis from the legal market, and that figure appears to be on the rise. But the hard times for that market persist.

To restore buoyancy, the industry wants at least three things: greater enforcement against the illicit one, tax relief and easing of regulatory burden.

Using police powers to confront illegal actors is uncontroversial for folks on the right side of the law. There should be greater enforcement against the underworld economy. Enhanced crackdown against illicit cannabis players continues. But there are limits on the resources of police and other justice system officials as they deal with other serious crimes.

In terms of tax relief, the legitimate market again points to the illicit one that pays no taxes. In this regard, the underworld has a significant advantage, particularly in terms of pricing. Legal actors have a point. The tax structure is complicated. The burden is illustrated by excise taxes. That levy was structured so that it was expected to be about 10 per cent of the price per gram. However, because the price of the drug has fallen so much, the effective tax can be as high as 30 per cent. So some relief does seem likely.

The industry wants easing of regulatory restrictions. Those claims may get some traction regarding details of licensing, etc. But it is also targeting restrictions on marketing and advertising. Here it is locking horns with public health advocates who insist these restrictions must remain — and, perhaps, be even stronger — in order to dampen harmful use. This brings us to issues of social justice and public health.

Social justice

Cannabis was legalised to further social justice and public health issues. In terms of the former, criminalisation of simple possession and use has ended. Individuals no longer have their lives mangled by imprisonment, challenges to find employment, or inability to travel because of consumption of this drug. Such criminalisation fell disproportionally on Indigenous and Black lives.

Public health

Many of the public health goals have been realised. A main objective was to contain harmful use as much as possible. Some statistics suggest that end is being achieved. For example, it was earlier noted that consumption among adults has risen. However, some of that rise could be attributed to occasional use simply because the drug is now legal and to individuals tending to self-medicate during Covid. In addition, some of that increase could be an artefact of legalisation itself: while the drug was illegal, some people were not prepared to acknowledge use; after legalisation, more were inclined to do so. Even more important are the statistics regarding daily or near-daily use. Individuals who use the drug this frequently are more likely to develop problems. These numbers have not increased.

But there are health issues of concern. One involves paediatric poisonings. Statistics indicate that there has been an increase in children sickened by ingesting legal edibles that were mistaken for candy. Edibles obtained from the legal market would appear to be the source of poisoning. Quebec essentially prohibited legal edibles, and paediatric illness from cannabis consumption has not risen to the extent that it has in provinces where edibles are legal.

Such problems as children being made sick from this drug have made public health advocates adamant that regulations aimed at curbing harmful use, such as limits on marketing, should not be loosened and, if anything, should be strengthened.

So much of policymaking requires weighing advantages against disadvantages — so it is with the legalisation of cannabis. Canadian experience demonstrates there have been problems that must be responded to. But the ending of criminalisation that especially burdened Indigenous and Black people, the creation of a legal market providing untainted cannabis — the strength of which is clear — and the confronting of the illicit one that makes vast sums of money, pays no taxes and has no regard for the quality of what it sells must weigh heavily in the balance.

• William Bogart is a distinguished professor of law at the University of Windsor (retired). He is the author and editor of eight books, including Off The Street: Legalising Drugs