Quebec has adopted a relatively strict approach to the regulation of cannabis in the areas that fall within its jurisdiction. For example, whereas the federal law allows Canadians to grow as many as four plants for personal consumption, the former Liberal government led by Philippe Couillard legislated in June 2018 that Quebecers would not be permitted to grow any cannabis at all. After that part of the legislation was struck down in provincial court, the current Coalition Avenir Québec government, led by François Legault, appealed the decision. And although edible cannabis products became legal in Canada on October 17, 2019, Quebec intends to ban sweet edibles attractive to children, though this move might also be subject to legal challenge.

But the most consequential difference between Quebec’s approach to cannabis regulation and the rules in the rest of Canada has to do with the age at which Quebecers are able to access cannabis legally. Whereas the federal legislation sets 18 as the age at which Canadians can purchase and consume cannabis legally, the Coalition Avenir Québec government has passed legislation that will restrict it to persons 21 and over as of January 1, 2020.

There are plausible reasons for this restriction. There is fairly solid evidence that cannabis consumption is dangerous for the developing brain, placing younger users at greater risk of mental health risks such as psychosis and schizophrenia. Junior Minister of Health Lionel Carmant, a pediatric neurologist, is on the record as saying that if he had his way, he would raise the legal age to 25, when brain development has for the most part stopped, so risks therefore drop off significantly as well.

What’s more, edibles in the form of gummies can be quite similar in appearance to candies that appeal to children. There are reports of kids accidentally consuming cannabis in jurisdictions where these edibles are available.

Cutline: Cannabis gummies.

At first glance, prohibition seems to make sense. But we pay our elected officials to go beyond the first glance. Will the prohibition of cannabis for persons under 21 actually protect young Quebecers more than legalization and regulation would? The context of cannabis use by youth suggests reasons to think that it will not.

Cannabis consumption patterns differ from those for that other widely available intoxicant, alcohol. Cannabis seems to be a young person’s drug. Studies suggest that people who drink tend to do so through their entire life cycle, but use of cannabis seems to drop off quite markedly as people approach early middle age. Whether this decline is a result of prohibition is something we will have to study now that cannabis is legal for adults. But on the strength of the evidence we have, it certainly seems as if adolescents and young adults are particularly susceptible to the lure of cannabis.

What’s more, Canada has been and remains awash in illegal cannabis. Even before legalization, Canadians were among the most prolific consumers of cannabis in the world. Canadian adolescents and young adults have definitely done more than their proportional share in generating that statistic.

In creating a legal cannabis market, governments are thus not introducing a product into the marketplace that has not previously been there. Rather, the companies to which they have granted production and distribution licences are entering as competitors to a thriving illegal market. To be sure, the authorities have tools at their disposal that others lack. Most obviously, governments can attempt to use criminal sanctions to force competitors out of business. But the effectiveness of that tool depends on enforcement. Given the history of enforcement of cannabis prohibitions in Canada, there’s doubt about the capacity of governments, federal and provincial, to drive illegal suppliers out of the market.

Whatever the popularity of prohibitionist policies among the electorate, is it plausible in this context to think that legislators will be able to enforce a prohibition on use by adolescents and young adults?

So here are the questions that legislators have to ask themselves: Whatever the popularity of prohibitionist policies among the electorate, is it plausible in this context to think that they will be able to enforce a prohibition on use by adolescents and young adults? Will they succeed in keeping cannabis out of the hands of those people who are most vulnerable to its health risks, but who for whatever reason seem to be most attracted to it? And will they actually be able to keep edibles off Quebec’s territory?

If the answer is no, and I suspect that it is, then the new restrictions will not improve things at all. They will give rise to the following paradoxical situation: Adults will have access to highly regulated cannabis, every step of its production tightly controlled, and with precise information about its potency as measured by THC percentage. Meanwhile, adolescents and young adults will still be dealing with illegal dealers, whose product is riskier and comes with far less information. In aiming for prohibition and failing to achieve it, Quebec will deprive itself of the regulatory tools through which it might reduce the harms associated with cannabis consumption: rigorous product testing to eliminate all possibility of adulteration, full information on potency and use of pricing mechanisms to “nudge” younger consumers toward less potent and thus less dangerous strains.

Cutline: Cannabis-infused chocolate.

A similar concern exists with respect to edibles. Not only will they still be available on the illegal market, but they will also be available legally in other Canadian jurisdictions. A short drive will suffice for many Quebecers to stock up. Prohibition of edibles will be even more difficult to enforce than age limits will be.

This is not to deny the risks involved. But when prohibitions are ineffective, responsible legislators should look for other ways of minimizing risk. Prohibition combined with lack of sufficient enforcement capacity could be the riskiest strategy of all.

There is a general lesson here. Prohibitions may appeal to the electorate, especially to the supporters of socially conservative political parties. They are emotionally satisfying in their simplicity: “This is bad; it should be banned!” But policy-makers should base their policy decisions on evidence rather than on emotional appeal. If they choose to implement prohibitionist policies, they should monitor the degree to which they are able to effectively enforce the prohibition, and they should be ready to change course if prohibition proves impossible.

With cannabis, the best policy outcome may very well be to keep edibles out of the province, and to keep all cannabis out of the hands of adolescents and young adults. But aspiring to the best, then falling short, could lead to the worst of all possible outcomes, which is for youth to find themselves no better off than they were in the pre-2018 days of blanket prohibition, and prevented from accessing the relatively safer cannabis that legalization has made available to other Canadians.

This article is part of the The Making of a Cannabis Industry: Year One special feature.

Photo: Quebec Junior Health and Social Services Minister Lionel Carmant tables a legislation raising the legal age to buy cannabis to 21 years old, Wednesday, December 5, 2018 at the legislature in Quebec City. THE CANADIAN PRESS/Jacques Boissinot

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Daniel Weinstock

Daniel Weinstock is a professor in the Faculty of Law and the director of the Institute for Health and Social Policy, McGill University.

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