Every business needs to rely on a lawyer at some point in their company’s maturation, and Canada’s commercial cannabis participants are no different. While law firms across Canada are now trying to muscle their way into the burgeoning industry, one lawyer has been there from the start of the country’s commercialization of its medical marijuana program.
That lawyer is Ottawa-based Trina Fraser of Brazeau Seller Law, who generously fielded all our questions about Canadian cannabis legalization, the limitations of the Cannabis Act, and how she came to be one of Canada’s top cannabis lawyers.
LEAFLY: First things first: Do you have a personal connection to cannabis, or is it just business—an industry that you just happened to jump into professionally and never left?
TRINA FRASER: There is a personal connection. It dates back the fall of 2013, when CNN had a documentary called Weeds, and a little girl called Charlotte Figi was profiled. She has Dravet syndrome, which is a really severe form of intractable epilepsy, and this documentary showed her miraculous improvement from CBD oil, which was ultimately renamed Charlotte’s Web after her.
My cousin’s son also has Dravet syndrome, so seeing this documentary gave her hope, and I learned as much as I could about the medical cannabis framework in Canada, trying to see if we could get Charlotte’s Web oil into Canada for them.
In the course of doing that I learned about this transition period to the privatization of production in Canada. My firm is a business law firm, we represent entrepreneurs, and we started getting calls from clients who wanted to get into this new industry in some capacity. I was familiar with the framework, so I fielded inquiries and pretty quickly concluded this was going to be huge—we were witnessing the creation of a whole new industry. The thing that fascinated me and continues to fascinate me is the intersection of politics, law and regulations, cultural and societal values, and business.
“Every regulatory change that comes my way, I always look at it first through the lens of ‘Does this help patients?’”
At that point there were very few business firms that were publicly stating that they advise on cannabis law matters. In my mind, this was an obvious opportunity and I went for it. I certainly never forget the reason I came to this industry in the first place. Every regulatory change that comes my way, I always look at it first through the lens of “Does this help patients?” That’s where it all comes back to for me.
How does it feel to be Canada’s most prominent cannabis business legal expert—the person that most cannabis businesses would call first?
Well, I’m not sure that’s the case! (Laughs) I’ve worked really hard the past four-plus years developing the expertise, so it is rewarding to feel like I have a voice and bring value to my clients. What’s exciting to me at this point is that it’s actually grown into a practice group at my firm. Our CannaLaw group now consists of my mergers and acquisitions associates and also one of my employment lawyers, so it’s great to see they have the same passion and excitement that I do. The most challenging thing for me at this point is handling the flood of inquiries that are coming in—but that’s a good problem to have.
What’s something that’s surprised you about the industry that you didn’t know going in?
I really didn’t appreciate how sophisticated and involved the existing cannabis industry was.
You’ve spoken about the importance of incorporating individuals in the industry that may have had past minor brushes against criminal law. Why is that important to you, and do you see any progress being made in that respect within Canada?
At a dispassionate level, I think inclusiveness goes hand in hand with meeting the government’s stated objectives for legalization. Bringing existing market participants into the fold subjects them to regulation and oversight. I also think it’s going to lend credibility to the market, by permitting the legal market to benefit from this immense pool of expertise and knowledge. I understand the knee-jerk reaction of “We’re not going to reward you for illegal behavior,” but when I look at it and break it down, I think it would be a positive thing.
On a personal level, I’ve got to know many market participants and many are eager to transition to the legal market. I don’t think their participation would in any way pose risk, and I would like to see them have the opportunity to succeed in the industry that they are so passionate about.
Across the country I’m both disappointed and optimistic about the positions some of the provinces are taking. I’m not so pleased or optimistic when it comes to Ontario and Quebec, though things look different the further west you go. But even in Alberta where they will create a privatized market, they still indicated an unwillingness to incorporate anyone other than those who are convicted of very minor possession offences.
Imagine you are at the helm at Health Canada. What one change would you make that hasn’t been made already to either the medical or upcoming recreational system?
“I still believe pharmacy access is critical for patients. Once we get legalization behind us, I hope this will be at the top of things to look at.”
I think if everything that was outlined in the Consultation Paper actually comes to be, then I think the Secretariat did a commendable job of balancing all of the competing industries. Something that will be missing is the pharmacy dispensing of medical cannabis. I appreciate this is largely due to a history of pharma regulators resisting it, but I still believe pharmacy access is critical for patients. Once we get legalization behind us, after concentrates and edibles, I hope this will be at the top of things to look at.
The country’s plan was to “legalize and strictly regulate” adult-use cannabis. As you know there are 45 new offences in the Cannabis Act, half with a maximum jail sentence of 14 years. Would you call this “strict regulation” or is it really still a continued reliance on a criminal approach—one that Canadians thought we would get away from?
I know many people are characterizing this as another form of prohibition, but I never expected anything different. The words “strict regulation” were used from the outset. I always expected legalization to do what it is doing, which is to carve out a scope of permissible activities, accompanied by a full complement of offenses to address conduct that falls outside that permitted scope. Without those corresponding offences, the regulations are really meaningless.
The penalties attached to those offences is another matter. I think sometimes people are too fixated on the maximum, which are rarely invoked and are reserved for the most egregious cases. Hopefully people can acknowledge the creation of a ticketing option for a number of low-level offenses, which is progress I am happy to see.
It’s my understanding that Canada has some of the most stringent regulatory frameworks for commercial cannabis production in the world. How does this help prepare Canadian cannabis producers that want to go global?
I think we’re already seeing Canada emerge as a world leader, and I think that’s partly due to our federal medical cannabis system and our intention to legalize consumer cannabis federally. There’s also the fact that on the medical side, we’ve already evolved into a pretty sophisticated regulatory model, with GPP (Good Production Practices) standards on cultivation and processing.
“I think Canada is perfectly positioned to fill the international medical cannabis supply void.”
So those medical exports are already occurring and this is only going to increase. I think Canada is perfectly positioned to fill the international medical cannabis supply void as we see more and more countries incorporate medical cannabis frameworks—at least until those countries are able to produce domestic supply. I don’t think we’re going to be able to compete long term on cultivation cost, but I think we will be competitive with quality standards and maintain a competitive advantage, particularly on the process to finished products.
What advice would you give to law students (or pre-law students) that want to play a meaningful role in the legal and advisory field of cannabis in Canada?
First, I think you have to be committed to continuous learning. I still spend on average two to three hours a day, reading, talking to people, writing, tweeting, always trying to find out more about the industry, the plans, the players…This is not easy to do when you’re also trying to running a busy legal practice but it is critically important if you expect to provide value to your clients.
The specific advice I would give to students: Even if you know the scenario you want to get into, don’t be too narrow in your focus—don’t focus just on cannabis regulation. This is really an industry that touches virtually every area of law. It’s not just about criminal or regulatory law, there’s a large commercial aspect, municipal law issues, securities, labour and employment, landlord and tenant, intellectual property….the broader the base of legal knowledge you have, the better position you’ll be in to advise your clients.
Oh, and of course whenever you tell someone you practice cannabis law, be prepared for all the jokes and the puns because that will never stop.
Follow Trina Fraser on Twitter or die in ignorance.