A British Columbia (B.C.) court dismissed a lawsuit from owners of licensed cannabis retail shops. Last year, this group of cannabis retailers sued the province for not enforcing cannabis regulations.

While licensed cannabis retailers jump through bureaucratic hoops and pay excessive taxes on the faulty premise that this contributes to “public health and safety,” the B.C. Bud market of “illicit” retailers doesn’t face these same hurdles.

Particularly on Indigenous Reserves, where the plaintiffs claim damages of at least $40 million in lost revenue.

Justice Basran considered whether the province owed the plaintiffs a private law duty of care in this context. The plaintiffs claimed the province committed torts of negligence and negligent misrepresentation.

But what does this mean? And was Justice Basran’s dismissal of the lawsuit justified? 

Details of the Plaintiff’s (Cannabis Retail) Argument

While the cannabis retailers suing the province wished to remain anonymous, CLN uncovered who they were. Their position is understandable. The government sold them a bill of goods.

When Canada legalized cannabis, the province of B.C. effectively said, “play by the rules and you’ll profit.” The reality has been anything but.

Obviously, licensed cannabis retailers are at a competitive disadvantage vis-a-vis the unlicensed cannabis shops. 

So why did Justice Basran dismiss the lawsuit? 

First, let’s look at what the plaintiffs claimed in their suit. What do “torts of negligence” and “negligent misrepresentation” refer to in this context?

Tort Law

Negligence is a fundamental concept in tort law. It means a failure to exercise a degree of care reasonable people would exercise in similar circumstances.

To establish a claim of negligence, the plaintiff (in this case, a group of licensed cannabis retailers) needed to prove the following:

• That the province of B.C. owed a duty of care to the licensed cannabis retailers. 
• That the province breached that duty by failing to meet the standard of care expected under the circumstances (i.e. The province’s cannabis enforcement authority should have been raiding unlicensed shops more than they were)
• That the province’s breach of duty directly caused harm or damages (i.e. Causation) to the licensed cannabis retailers
• And that these actual harms (or losses) result from the province’s breach of duty.

The plaintiffs alleged that B.C. failed to enforce cannabis regulations (specifically, the Cannabis Control and Licensing Act) on Indigenous Reserves. They claimed this negligence resulted in damages of at least $40 million.

Negligent misrepresentation is a specific type of negligence claim that arises when one party provides false or misleading information to another party, and the party receiving the information relies on it (to their detriment).

To establish negligent misrepresentation, the licensed cannabis retailers had to prove the following:

• That the province made a false statement, whether intentionally or not
• That the plaintiffs relied on this false statement
• The plaintiffs suffered financial (or other) losses from relying on this false statement.

In this case, the plaintiffs said that B.C. promised them a viable, legal, above-the-board retail cannabis industry. One way of ensuring this would be to take enforcement action against unlicensed retailers, whether on Indigenous Reserves or not.

Did the B.C. Government Owe a Duty of Care to the Cannabis Retailers?

Justice Basran considered whether the province owed the plaintiffs a private law duty of care. The B.C. government argued that it did not owe such a duty because the parties had no direct relationship.

But what does this mean?

In tort law, a “duty of care” is a legal obligation imposed on an individual (or group, entity, etc.) to exercise reasonable care and caution to prevent harm to others affected by their actions and omissions.

Of course, not all actions or omissions give rise to a duty of care. That’s where proximity comes in, which refers to the direct relationship between the parties. In this case, whether a direct connection between the province’s cannabis regulators and the cannabis retailers justifies imposing a legal duty.

Justice Basran had to determine whether the province of B.C. owed a “private law duty of care” to the cannabis retailers. Of course, B.C. argued that it did not. They argued that their duty was the “public interest,” not the economic interests of specific businesses.

Justice Basran agreed that no duty of care existed due to lack of proximity. 

How Did the Court Come to this Decision?

Justice Basran dismissed the B.C. cannabis retail lawsuit based on the “plain and obvious” legal standard used when deciding to strike pleadings. 

The court considered the Anns/Cooper test to determine whether a duty of care existed. This involves two stages. First, whether the harm alleged was reasonably foreseeable. And second, whether there is a close relationship between the parties (proximity).

Justice Basran found no prima facie duty of care between the province and the licensed cannabis retailers. The court argued that B.C.’s cannabis regulations do not establish a legislative intention to create such a duty.

The court also ruled that the claims made by the province (i.e. Get licensed and profit) did not create a sufficient relationship to impose a duty of care.

Suppose the court had recognized that such a duty exists. Justice Basran was concerned such a decision could result in more of these types of lawsuits where the province (and its regulators) are held liable for the economic losses of numerous businesses due to their incompetence.

Justice Basran weighed the potential negative consequences of such a decision and decided it wouldn’t be in the best interests of the legal system, taxpayers, or society as a whole to impose such a duty.

B.C. Court Dismisses Cannabis Retail Lawsuit

A B.C. court has dismissed the cannabis retail lawsuit. The decisions sound as if what’s convenient for the government overrules what’s just and fair.

Was Justice Basran’s dismissal of the lawsuit justified? Judges are, after all, only human. And there is an appeals court. So, there may be more to the case in the future.

In the meantime, to argue that judges in Canada have far too much power, that they are, in effect, legislating from the margins is considered a “far-right” viewpoint. 

But there is nothing “far-right” or even “far-left” about upholding the values that underpin our rule of law. 

Suppose governments can evade the consequences of their actions because of the potential cost to taxpayers or the legal system. In that case, there is no rule of law.

It’s rule by fiat masquerading as a rule of law.

The B.C. government plans to throw $2.3 million taxpayer dollars at the province’s Indigenous cannabis industry. The announcement comes a few days after a First Nations group called for Cannabis Act reforms.

Concerning the Indigenous cannabis industry, while the B.C. government pays lip service to Indigenous sovereignty, their actions have been all over the map.

On the one hand, you’ve got legal retailers suing the government over lack of enforcement on First Nation reserves. And on the other hand, you’ve got the “Community Safety Unit” raiding peaceful Indigenous establishments.

The B.C. government has given itself more power to go after “illicit” online retailers. It has also strengthened the province’s civil forfeiture laws to target cannabis farmers specifically.

But as politicians are always prepared to do what sounds right over what works – the B.C. government is throwing $2.3 million at the Indigenous cannabis industry.

B.C. Throws Money at Indigenous Cannabis Industry

This past weekend, the B.C. government announced they would allocate $2.3 million to the B.C. Indigenous Cannabis Business Fund (ICBF). ICBF aims to increase Indigenous participation in B.C.’s cannabis industry.

But wait. Isn’t “public health” always up in arms about the alleged harms of cannabis?

The industry is subject to sin taxes and prohibition-era rules and regulations. Public health doesn’t celebrate it as the therapeutic, nontoxic medicinal flower it is.

So why would the B.C. government encourage marginalized and vulnerable populations to enter the drug industry? Why would they use taxpayer dollars to accomplish this?

Why the disconnect? Simple: like prohibition, Canadian legalization is rooted in racism.

Is the B.C. Government Racist? 

The racism in prohibition is blatant: despite similar rates of use among all populations, police charge minorities with cannabis possession and trafficking at a far higher rate than “white” or fair-skinned people.

Obviously, the solution is to end prohibition and defund the police. Cannabis belongs in a free and fair market, as do policing services.

But what about the racism in legalization? If your skin is white and your background is European, getting too involved with cannabis constitutes a “disorder” or an “addiction.”

If you smoke weed every day, the way people drink coffee every morning, then public health considers this a symptom of some larger mental health issue.

But that’s if you’re in the majority European-descent ethnic group. If you’re Indigenous, there is no talk about “cannabis use disorder.” When speaking of the Indigenous cannabis industry, politicians and bureaucrats start talking about economic prosperity or business opportunities.

Why? Ethnic discrimination. Also called racism.

If you’re from Europe, the prevailing Judeo-Christian worldview tends to have a negative view of drug use. Despite the secular nature of modern Western governments, this ethos still dominates Canada’s cultural and ethical background (just look at how the state deals with gambling, sex work, or alcohol).

But if you’re Indigenous, then it’s assumed your spiritual background permits cannabis as a holy sacrament. A sort of “peace pipe” that is a fundamental part of your culture.

Like, I said: racism.

Your genetic code doesn’t determine your identity. Indigenous people can wear suits, work in a corporate office, eat avocado toast, and listen to 1970s classic rock.

Just as a “white” person can escape the rat race and join an intentional community that adheres to principles similar to many Indigenous cultures.

We’re free, independent, autonomous persons. Identifying ourselves (and others) as members of an ethnic group, first and foremost, rather than individuals, has been a regular occurrence throughout history.

It has never worked out well. 

Details of the Funding

The B.C. government’s allocation of $2.3 million to the Indigenous Cannabis Business Fund (ICBF) is a one-time deal. At least for now.

According to the province, the money will go toward helping First Nations with business plans and advisory services and help cover the costs of licensing and permits. The ICBF will also provide capital to support launches and expansions of Indigenous-owned cannabis businesses.

New Relationship Trust will administer the ICBF. In a statement, the chief executive officer said, “The additional funding means unlocking more opportunities for First Nations seeking to advance their own path toward economic development in the regulated cannabis industry.”

Of course, forging their “own” path toward economic development shouldn’t involve an additional $2.3 million bailout from taxpayers. (The ICBF already received $7.5 million a few years ago).

The B.C. government could be far more effective in eliminating the required licenses and permits that drive up business costs. Reform would benefit non-Indigenous cannabis entrepreneurs as well, and it costs nothing.

Before legalization, when Vancouver had a wild-west of “illegal” dispensaries, a few groups stepped up to provide order. The idea was that they’d be private accreditation agencies.

You might have several options to buy weed. But one of the stores would have a seal of approval from an accreditation agency you know and trust. This shifts the costs of regulation from taxpayers to the business and its consumers.

It also means consumers have to make more discriminating choices—no more blind faith in the power of government bureaucracy.

We know monopolies don’t work. Only ideologues question the efficiency of markets. So why do we permit governments to monopolize regulatory services?

What do Indigenous Groups Think?

What do Indigenous groups think about the B.C. government’s plan to throw $2.3 million at the Indigenous cannabis industry?

“I commend the Province for enhancing its support of First Nations cannabis-related economic development through the ICBF,” said regional chief Terry Teegee, BC Assembly of First Nations.

Terry sees it as another example of how the B.C. government adheres to the “United Nations Declaration on the Rights of Indigenous Peoples” or UNDRIP.

But like most things from the United Nations, the devil is in the details.

For example, UNDRIP says Indigenous populations have a right to “self-determination” without clarifying what this means.

Suppose a First Nations reserve in Canada overwhelmingly supports a local secession movement. Would the federal government and First Nation groups support them? Or would their self-determination be considered an illegal act?

The UNDRIP is too ambiguous to be helpful. Either self-determination overrules national law and sovereignty (or, at the very least, competes with it on a level playing field), or, like the United Nations itself, the UNDRIP is useless.

A mere virtue signal to give Indigenous people a sense of progress. This is true even in Canada, where the Trudeau government wrote the UNDRIP into law.

Do you really think Justin believes Indigenous people have an “inherent right to self-determination, including the right of self-government”? 

How Cannabis Works in B.C.

Here’s the reality: the B.C. government creates a complex regulatory system for retail, requiring capital, permits, licenses, and insider knowledge to navigate this bureaucratic nonsense.

It then raids peaceful Indigenous-owned dispensaries that have chosen not to participate in the government’s crony-capitalist system.

The B.C. government then offers other people’s money to “support” the cannabis industry they’ve made unnecessarily convoluted and expensive.

It’s like a criminal who breaks into your house, claims it’s his, then breaks your legs but pays your medical bills with money he found in your bedroom.

You don’t have to be of a particular ethnicity to see the problem.

The B.C. government will soon be using a strengthened Civil Forfeiture Act to put a nail in the coffin of B.C. Bud cannabis farmers.

B.C. Bud is the colloquial term for thousands of underground cannabis farmers, vendors, and other related cannabis service providers.

Before legalization, these people were engaging in civil disobedience. If Canada ever legalized, people believed the government would bring this community into the mainstream. 

What else does legalization mean?

Well, we found out. Once the Trudeau government pledged to legalize, B.C. Bud became “organized crime.” Even to the B.C. government.

Instead of embracing the economic output of B.C. Bud, the NDP BC government has done everything possible to collectivize them into a corporate-state model.

Why “Illicit” B.C. Bud is Justified 

Cannabis prohibition is unjust. Full stop. Therefore, cultivating, selling, and transforming cannabis flower into consumable products is a basic human right.

Many in B.C. Bud voted for the Liberal Party in 2015. Many expected Justin Trudeau to end the crony capitalism of Stephen Harper’s medical cannabis market.

They expected legalization.

What happened instead was corporatization. You needed deep pockets to succeed. Cannabis in Canada was about selling equity, not weed. And now the failure of that system is upon us.

Meanwhile, B.C. Bud has been slowly (and reluctantly) given a path to legitimacy. It just involves a lot of money and paperwork brought to you by bureaucratic regulators.

The institution that enthusiastically threw you in a cage for cultivating a flower is the same apparatus telling you how to produce it.

Thanks to Justin Trudeau’s “public health and safety” method of legalizing cannabis (embraced by the B.C. government without question), a vast sum of the B.C. Bud’s community remains locked out of the legal regime.

They either have to make unrealistic sacrifices to their current business model or raise additional capital to satisfy the demands of government bureaucrats.

(This latter point of requiring a certain amount of capital to be considered legitimate inflicts many industries. It is one of many ways Canada’s “civil servants” ensure the rich get wealthier at the expense of the middle class and the poor.)

Instead of trying to work with B.C. Bud, the NDP BC Government has been out for blood. First, by establishing the “Community Safety Unit,” which has threatened and raided longstanding, respected community dispensaries. 

And now the B.C. government wants to kill B.C. Bud with Bill 21. The Civil Forfeiture Amendment Act of 2023.

B.C. Government to Kill B.C. Bud with Civil Forfeiture Act 

Civil forfeiture is when governments seize property and other assets from individuals suspected of committing a crime. Its origins date back to the 1980s in the United States as an attempt to reduce organized crime.

Of course, organized crime got its big break with alcohol prohibition.

Traditionally, in the English common law system that the U.S. and Canada adhere to, asset forfeiture is a power that belongs to the criminal courts.

These courts require proof beyond a reasonable doubt—another example of how a decentralized network of courts and legal professionals secures our rights.

Consider the legislative response.

Since clever criminals can successfully conceal asset ownership, governments have reacted with civil forfeiture. Namely, undertaking civil action against individuals and entities suspected of being involved with criminal activity. 

This means allowing the government to seize property through civil courts instead of criminal courts. Civil forfeiture shifts the burden of proof from “beyond a reasonable doubt” to a “balance of probabilities.”

Instead of providing hard evidence, governments can confiscate assets based on “reasonable suspicion.”

Using civil courts in this matter is antithetical to our common law traditions and concept of liberty.

Suppose the B.C. government were to accuse you of purchasing a home or a car from proceeds you made selling cannabis (that is, selling cannabis without your proper government papers). 

In a criminal trial, you’re not proving your innocence. You’re presumed innocent unless proven guilty beyond a reasonable doubt.

In the civil forfeiture process, the state requires you to prove that you derived the assets in question through legal and legitimate means. 

It flips the entire “innocent until proven guilty” concept on its head.

How B.C. Will Use Civil Forfeiture Act To Kill B.C. Bud

The B.C. government’s amendments to the Civil Forfeiture Act will kill B.C. Bud.

Expected to pass its Third Reading and receive Royal Assent, the propaganda is about “making gang life unprofitable.”

Concerning cannabis, the amendments include invoking civil forfeiture for having 20 or more cannabis plants.

(Technically, five times the legal limit. So if you have a medical licence for 20 plants, then producing 100 will see your assets taken in civil court).

As part of the “let’s kill B.C. Bud with civil forfeiture” plan is the creation of “unexplained wealth orders,” or UWOs. UWOs streamline the process so the government can more effectively demand how you acquired your assets if they suspect you of being part of the B.C. Bud market.

The government calls it a “powerful tool” to help undermine money-laundering techniques such as “hiding assets with family members.” 

Bill 21 will also eliminate limitation periods, make it easier to target financed vehicles and access information from private bodies, like real estate boards.

Of course, the B.C. government is going after all organized crime, not just cannabis, which is a little too late, as anyone familiar with B.C.’s casinos knows.

But in case you think I’m being hyperbolic, here is a direct quote from the B.C. government media release: 

The amendments are based on recommendations from the Cullen Commission of Inquiry into Money Laundering in British Columbia, which was released in June 2022. Other amendments include… targeting the illegal cannabis market.

What About First Nations? 

B.C.’s Public Health and Safety Minister, Mike Farnworth, debated with the opposition’s shadow minister in the provincial house. Farnworth said the new rules won’t apply to First Nations land.

Of course, Farnworth can’t be trusted on this, as he also said the same thing about CSU raids. But, as First Nation lands are federally controlled, provincial civil forfeiture rules can’t apply.

However, if police suspect a First Nations community is illegally growing cannabis, then they can isolate the individuals on the Reserve. As soon as a community member leaves in a vehicle and crosses into B.C. territory, police can grab them under civil forfeiture laws.

First Nations cannabis cultivation has been controversial in B.C. A group of legal retailers are suing the provincial government over, what they argue, is a lack of proper enforcement.

On the other hand, First Nation groups say they have intrinsic rights to the land and its resources, including cannabis cultivation.

Many credit B.C.’s First Nations for keeping the spirit of B.C. Bud alive after eight years of systemic efforts by the federal and provincial governments to eliminate the culture.

Why Does the B.C. NDP Hate B.C. Bud?

You’d think a left-wing party like the NDP would support a working and middle-class struggle against the corporatization of a natural herb.

But, then, again, the NDP parties of today are not like the ones of yesteryear. 

During the Great Depression, workers marched to Ottawa to protest. The RCMP stopped them in Regina. You can’t read a left-wing labour history of Canada without the “On-to-Ottawa Trek” taking up at least an entire chapter.

But in 2022, when a similar struggle broke out? When working truckers drove their rigs to Ottawa? The leader of the federal NDP called them racists and accused them of arson and violence.

Meanwhile, B.C.’s NDP government strengthen civil forfeiture laws to kill B.C. Bud. They’ve also empowered their extrajudicial CSU to target online cannabis retailers (the ones government bureaucrats haven’t arbitrarily approved).

Public health busybodies always say, “Today’s cannabis isn’t like your grandparents’.” Likewise, the NDP of today is not the NDP of your grandparents’. 

A proper, left-wing party would support B.C. Bud. Not group them with criminals. 

An NDP that stood for the working class would have challenged Ottawa’s collectivization of B.C. Bud. They would have objected to having Health Canada – of all agencies – regulate the cultivation of an agricultural herb.

The NDP B.C. Government should repeal these civil forfeiture amendments and stand up for B.C. Bud. Not because of British Columbia’s unique cannabis culture. And not because cannabis is good for the economy, environment, or health care.

But because it’s the right thing to do. Cannabis belongs in a free and fair market. The only role governments have to play is keeping it out of the criminal code.