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Lessons From Cannabis Law

Cannabis law is taking the legal profession by storm. Look at the websites of top national firms, of mid-size firms, of small boutiques and of sole practitioners. It seems everyone is practicing cannabis law. Or at least claiming to.

This development has not been evolutionary; it has been revolutionary. Five years ago, cannabis law was the domain of a few criminal defence lawyers, some activist lawyers and the bold willing to do work for clients in the small medical marijuana field.

Cannabis law reflects the dramatic shift to a now partially legal activity. That change has come about quickly and with virtually no transition period. While the production and use of cannabis for medical use has been permissible and regulated (somewhat) for the past decade and a half, the production, distribution, marketing, sale and use of cannabis for recreational purpose has gone virtually overnight from being illegal to legal and highly-regulated. As one of my students noted, we have gone from criminalization to regulation in two short years, skipping over the intermediate step of decriminalization. Consequently, there is a dearth of research in Canada on cannabis and its effects. This will likely produce a clash of claims in various areas of the law, regulation and public policy which will not be easily resolved by evidence-based arguments.

It is hard to imagine another area of the law or public policy that has changed so much in such a short time.

In short, the state of cannabis in Canada as we knew it, even two years ago, radically changed on October 17, 2018. Whether that day will live in infamy or in fame in the annals of Canadian public policy will be left for future scholars to determine.

We are witnessing nothing less than the birth of an entirely new industry. We are already seeing that the regulatory impact will be significant, across many areas of commercial, professional and personal activity.

When I became Dean of the University of Ottawa’s Faculty of Law (Common Law Section) in January 2018, I saw some of the potential legal impacts of the government’s plan to regulate cannabis. That is why we became the first law school in the country to offer courses in “Cannabis Law” that specifically address the impacts of the new cannabis regime. Diane Labelle taught the very first such course at our law school in the fall of 2018 – in French. We are teaching an intensive course in English in January.

As an educator and as a Dean, teaching Cannabis law appeals to me. Not just because it is cutting edge but because it is cross-cutting. Cannabis law is not a brand new legal category like torts or contracts or family law. Rather, it cuts across all of these areas.

No one practicing Cannabis law today ever took a course in a law school on the regulation of cannabis because no such regulations existed. Yet these lawyers are able to do practice Cannabis law. How? Because they are able to leverage the skills of legal analysis and problem solving that they developed in other areas of practice to apply to the new field of Cannabis law.

One of the lessons of Cannabis law is that the skills that students learn in law school are more important than the content of specific courses. That content changes. The law is ever changing. Some fields disappear (dower, patently unreasonable) and new fields emerge (Cannabis Law, blockchain, AI).

Some members of the bar often lament or complain or even advocate for more mandatory courses in law school. These assertions are misguided. Our students will never be able to learn the whole of law or of any area of the law.

Others assert that we should be producing “practice-ready lawyers”. If this was our mission, then there is no need for law schools to be faculties of law in universities. And we as legal academics would be the wrong people to be teaching fledgling lawyers. The focus on producing “practice-ready lawyers” can be misguided; it risks consigning “practice-ready lawyers” on day 1 to becoming obsolete in year 3. It is a good thing we did not teach law students how to use MS-DOS, Wordperfect and PC Law. The tools of today are fleeting; the capacity to acquire knowledge and to adapt is enduring.

Of course, we should be teaching practice skills and all law schools are doing so and trying to do more. We are a profession committed to life long learning and this involves a partnership between the academy, the bar, the bench and the regulator. We each have a role to play in educating lawyers and we need to work together to do so. There has been a concerning trend over the past several decades to download more and more responsibilities onto law schools. Law schools cannot do everything to prepare graduates for practice. We need to work together.

As educators, we succeed when we instill in our students the intellectual curiosity to discover the law on their own, when we give them the tools to engage in rigorous analysis and creative problem solving. And to adapt.

These are some of the lessons of Cannabis law.

This blog is adapted and expanded from the Preface to Cannabis Law, by Bruce MacFarlane, Robert J. Frater, and Croft Michaelson, (978-0-7798-8820-7) (Thomson Reuters Canada, 2018), https://store.thomsonreuters.ca/product-detail/cannabis-law/. Reproduced with permission.

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