HEARING BEFORE A PANEL OF THE BOARD OF ALBERTA GAMING, LIQUOR AND CANNABIS COMMISSION
IN THE MATTER OF the Gaming, Liquor and Cannabis Act Revised Statutes of Alberta 2000, Chapter G-1, as amended and the Regulation
DATE PANEL CONVENED:
HEARING PANEL:
APPLICANT’S REPRESENTATIVE:
and
Fire & Flower Inc. o/a Fire & Flower (Applicant) 5241 Calgary Trail NW, Suite 400 Edmonton, AB T6H 5G8
REGULATORY SERVICES DIVISION:
July 5, 2022
Kent Breedlove, Presiding Member Elan Harper, Panel Member Len Rhodes, Panel Member
Matthew Anderson, Vice President, Legal, Business Affairs and Compliance and Corporate Secretary for the Applicant Russ Hall, Legal Counsel
Rebecca Lee, Legal Counsel Petrina Nash, Resource Officer
DECISION OF THE HEARING PANEL (Note: written decision of the Panel on preliminary matters was issued June 22, 2022).
The Panel finds that the licensee contravened Section 90.17 of the Gaming, Liquor and Cannabis Act (the GLCA), specifically, Sections 6.1.3 and 6.1.5(c) of the Retail Cannabis Store Handbook.
In accordance with Section 94(7)(b) of the GLCA, the Panel replaces the original administrative sanction imposed by the Regulatory Services Division as follows:
•
The $10,000 fine is replaced with either (i) a fine of $10,000 or (ii) a 40-day suspension of all of Fire & Flower Inc.’s Alberta locations licensed under Corporate Stakeholder number 754348.
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I. Jurisdiction and Preliminary matters [1] By letter dated February 24, 2022 the Regulatory Services Division (Regulatory Services) of the Alberta Gaming, Liquor and Cannabis Commission (AGLC) advised Matthew Anderson that Fire & Flower Inc., the licensee, contravened Section 90.17 of the GLCA: • 90.17(1) The Board may make policies respecting the advertising, display and promotion of cannabis and cannabis accessories. • 90.17(2) Every cannabis licensee and registrant under section 90.13 must comply with the policies.
[2] Specifically, the Notice of Administrative Sanction indicated that the following advertising policies were violated: • Section 6.1.3(a) of the Retail Cannabis Store Handbook (the Handbook): advertisements are only permitted in places where persons under the age of 18 are prohibited from entering; and • Section 6.1.5(c) of the Handbook: The following is prohibited in the advertising of cannabis products and accessories: use of testimonials or endorsements.
[3] Regulatory Services, without a hearing, imposed an administrative sanction of a fine of $10,000 against Corporate Stakeholder ID 754348.
[4] Fire & Flower subsequently applied for a hearing before a Panel of the Board of the AGLC pursuant to Section 94(1)(a.1) of the GLCA. Fire & Flower opted for the hearing to be conducted by written submissions.
[5] At the request of Fire & Flower, a preliminary hearing was scheduled to address jurisdictional and procedural matters. On May 3, 2022 the parties were provided with a Notice of Hearing detailing the timelines for submissions on the preliminary matters and, if applicable, for the substantive matters.
[6] On May 24, 2022 the Panel convened to deliberate on the preliminary matters presented via document exchange. The Panel considered submissions from Regulatory Services and Fire & Flower on preliminary jurisdictional and procedural matters and delivered a verbal decision to the parties on May 27, 2022.
[7] During the verbal decision delivery, the Panel asked the parties to consider whether to proceed by way of an oral hearing rather than the exchange of written documents. Fire & Flower indicated they would make themselves available to answer any questions the Panel may have regarding written submissions but confirmed their preference to proceed by way of exchange of written documents.
[8] The written decision with reasons, on the preliminary matters, was issued to the parties on June 22, 2022.
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[9] The parties and the hearing Panel were provided with a record containing various documents pertaining to the issues before the Panel.
[10] Fire & Flower asked the Panel to refuse to admit Attachments 8 and 9 of the Incident Report (Exhibit 1, Tab C) as these attachments involved social media posts that were not included in the Incident Report and were not alleged to have contravened any provisions of the GLCA or the Handbook. The Panel agreed that attachments 8 and 9 were not related to the social media post in question and those attachments were struck from the hearing record.
[11]
The Panel considered the following documents pertaining to the issues: • Exhibit 1 Hearing Record, including Tabs A-C with Attachments 1-7 and 10-12 • Exhibit 2 Fire & Flower written submissions, dated June 6, 2022, Including Tabs 1-24 • Exhibit 3 Regulatory Services written submission and reply dated June 13, 2022, including Tabs 1-7 • Exhibit 4 Fire & Flower reply submission, dated June 17, 2022, including Tabs 1-4 • Exhibit 5 Two documents provided by Regulatory Services and related email correspondence between parties, June 23-29, 2022
II. Issues [12] Did Fire & Flower contravene Section 90.17 of the GLCA, specifically, did they fail to comply with the cannabis advertising policies found at Section 6.1.3(a) and 6.1.5(c) of the Handbook? If so, should the administrative sanction previously imposed by Regulatory Services be confirmed, replaced or cancelled?
[13] If Fire & Flower contravened the above policies, is there evidence that the licensee took all reasonable steps to prevent its employees or agents from contravening the provisions in accordance with Section 121 of the GLCA?
III.
Regulatory Services Evidence
[14] The following is a summary of the evidence provided by Regulatory Services in its written submissions.
[15] On December 15, 2021 AGLC received a complaint regarding an Instagram post that purported to be promoting Fire & Flower and which in Regulatory Service’s view, violated AGLC’s advertising and promotional policies. A screen capture of the post was provided as Attachment 1 to the Incident Report, dated February 16, 2022 (Exhibit 1, Tab C).
[16] The Instagram post from December 15, 2021 showed a package of Chuz Edible Cannabis Gummies and Caramels being opened. The post included text about the inspiration behind the post and information about Fire & Flower’s holiday campaign with reference to the gift guides developed by Fire & Flower. The post stated that the gift guides offered selections for “all the different people in your life” including selections for “foodies, dog people and much more.” The post instructed viewers to “head
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over to the [web]site to grab your gifts before it’s too late.” As well, it included a personalized discount code for consumers to use on the Fire & Flower website for Fire & Flower’s “12 Days of Deals.”
[17] On December 16, 2021 Inspector Phil Bauer contacted Matthew Anderson, Vice President, Legal, Business Affairs and Compliance and Corporate Secretary for Fire & Flower Inc., advising him of the complaint and seeking more information about the post. Mr. Anderson and Inspector Bauer exchanged various emails about the complaint. Inspector Bauer asked Mr. Anderson in three separate emails whether Fire & Flower was paying the owner of the Instagram account to promote Fire & Flower.
[18] Without a clear response, on January 13, 2022, Inspector Mitch Gallant issued a letter to Fire & Flower under Section 100 of the GLCA requiring a response to the following questions: • Written confirmation if a relationship between Fire & Flower and the owner of the Instagram account exists; and • If an agreement exists [...], all information regarding the agreement including the contract between the two parties.
[19] On January 25, 2022 Russ Hall, legal counsel for Fire & Flower, provided a response to the questions (Exhibit 1, Tab C, Attachment 5).
[20] Fire & Flower acknowledged their relationship with the owner of the Instagram account (hereinafter “the contractor”) and advised that the contractor is a third-party retained by Fire & Flower to create content for Fire & Flower’s social media channels and in-store displays, in addition to displaying created content on the contractor’s own social media platform. Mr. Hall provided a copy of the agreement between Fire & Flower and the contractor’s talent agency (Exhibit 1, Tab C, Attachment 7).
[21] The agreement between the contractor’s agency and Fire & Flower identifies the contractor as the “Influencer.” Regulatory Services categorized the contractor as a social media influencer who is paid by companies to promote their products. Regardless of the characterization of the contractor’s role, Regulatory Services submitted that the arrangement with the contractor demonstrated that Fire & Flower engaged the contractor to market and promote Fire & Flower and its product.
[22] In his January 25, 2022 response, Mr. Hall also provided Regulatory Services with a copy of the age data of the contractor’s followers for the time period of January 18 to January 24, 2022 (Exhibit 1, Tab C, Attachment 6). Regulatory Services argued that the data received did not coincide with the timeframe during which the post was active nor did the data received contain any specific information connecting it with the contractor’s account. The data provided accounts for 98.1% of the followers, broken down into the following age groups:
• • • •
25-34 years (57.4 per cent of viewers) 35-44 years (27.5 per cent) 18-24 years (8.1 per cent) 45-54 years (5.1 per cent)
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[23] The Incident Report states that neither the Instagram post nor the account were age-gated, meaning that persons of all ages would be able to view the material posted by the contractor. Regulatory Services submitted that there are minimal age restrictions on the Instagram platform and content is widely accessible by users. Regulatory Services submitted that Fire & Flower had not provided any evidence that the contractor’s account or any of their posts are age restricted.
[24] Regulatory Services submitted that it was not aware of any additional steps taken by Fire & Flower to ensure that young persons would not be able to view their post, outside of their review of demographic statistics. Regulatory Services submitted that self-reporting of age is an insufficient age-gating method.
[25] Regulatory Services provided a copy of a cannabis licensee Acknowledgment and Undertaking signed by Mr. Anderson on behalf of Fire & Flower in November 2018 (Exhibit 3, Tab 2), whereby the licensee confirms it understands their legal obligations under the GLCA, the Gaming Liquor and Cannabis Regulation and AGLC’s policies and guidelines.
[26] Regulatory Services argued that although the GLCA, the Gaming Liquor and Cannabis Regulation and AGLC’s policies and guidelines imposed certain restrictions on a licensee’s freedom of expression, that the limitations and the administrative sanction imposed by Regulatory Services is a “proportionate and reasonable infringement” which is in line with the leading Canadian jurisprudence. Regulatory Services applied the framework for when a Charter right may be infringed upon, as the same is set forth in Doré v Barreau du Quebec, 2012 SCC 12, [2012] 1 SCR 395 and Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 (Exhibit 3, Tabs 3 and 4).
[27] Regulatory Services submitted that even if the AGLC interfered with Fire & Flower’s freedom of expression, by exercising its authority to sanction and prohibit the Instagram post, the purpose of this interference advances certain statutory objectives and was narrowly tailored. Regulatory Services is of the opinion that the sanction and prohibition of the Instagram post amount to minimal interference on Fire & Flower’s right to freedom of expression. As the sanction and prohibition were only applied to a single post, the sanction would have limited impact on Fire & Flower’s ability to carry out its other promotional and advertising activities.
[28] At Exhibit 3, Tab 7, Regulatory Services submitted Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927 and argued that the two-step test for establishing when an infringement of the Canadian Charter of Rights and Freedoms (the Charter) is acceptable. Under the two-part test set forth in Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927, Regulatory Services stated that Fire & Flower’s post has expressive content and therefore falls under the protected sphere. The second part of the test is to assess whether the purpose or effect of the government action at issue was to restrict freedom of expression.
[29] In Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927, the Court held that the government’s purpose in enacting the violated provision was to prohibit particular expression in the name of protecting children. Regulatory Services argued that, similarly, prohibiting advertising cannabis products to minors is for their protection. Therefore, the advancement of AGLC’s statutory objectives,
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restricting Fire & Flower’s freedom of expression, strikes a proportionate balance in the name of protecting minors.
[30] Regulatory Services argued that the AGLC has an obligation to guard the health of young persons by protecting them from inducements to use cannabis, especially in the context of marketing and advertising on social media which is widely accessible with few age restrictions.
IV. Fire & Flower Evidence [31] In Mr. Hall’s January 25, 2022 response email to the Section 100 letter from Regulatory Services, he provided a copy of the contractor’s Follower Age Data (Exhibit 2, Tab 8). He submitted that prior to engaging the contractor, Fire & Flower requested the demographic data for the reach of their content to ensure that minors would not be likely to view the content. He argued that this was a reasonable step in accordance with AGLC’s policies to ensure that persons under the age of 18 would not be able to access the post.
[32] Mr. Hall admitted that although the demographic data from the point in time of the December post was no longer available, the data provided from January 2022 is a representative example of the age groups of the contractor’s audience, which generally consists of adults, primarily aged 25-44.
[33] Fire & Flower submitted that it has no reason to believe that any of the remaining 1.9 per cent of age groups unaccounted for comprise young persons. Fire & Flower also argued that the followers are primarily located in Toronto, Ontario and that the demographic data do not identify any followers as being located in Alberta.
[34] Mr. Hall also confirmed that Fire & Flower reviews all content posted by the contractor to ensure compliance with both the Cannabis Act and Section 6.1.5 of the Handbook. Mr. Hall stated that in the opinion of Fire & Flower none of the content posted by the contractor contains a representation about a thing or service likely to shape attitudes, beliefs and behaviors and therefore should not be considered promotional. Further, the post in question did not contain imagery or words that may appeal to minors or use of testimonials or endorsements or otherwise infringe any of the prohibitions contained in Section 6.1.3 of the handbook.
[35] To address the issuance of the Section 100 letter generally, Mr. Anderson submitted as evidence email correspondence between himself and Inspectors Bauer and Gallant containing their inquiries before the issuance of the letter to demonstrate that he believed he had provided the necessary information at the time and that he felt Inspector Gallant was looking into the issues further and would be in touch with Mr. Anderson. Mr. Anderson did not believe that any response on behalf of Fire & Flower was outstanding (Exhibit 2, Tabs 6-7).
[36] As part of Fire & Flower’s written submissions dated June 6, 2022, Mr. Anderson provided excerpts from the contractor’s website and Instagram account as well as a reproduction of the follower age data (Exhibit 2, Tabs 2, 3 and 8). Fire & Flower argued that the term “Influencer” does not appear anywhere on the contractor’s website or Instagram page nor is the term defined in any legislation,
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policy or bulletins from AGLC. Fire & Flower disputed Regulatory Services’ characterization of the contractor as an Influencer.
[37] Fire & Flower argued that “age-gating” is a colloquial term used in the cannabis industry to represent steps taken by a party to prevent young persons from accessing a promotional message. Fire & Flower disputed the assertion that the post was not age-gated in accordance with Section 17(2) of the Cannabis Act as Fire & Flower took all steps to confirm that young persons were not accessing the post (Exhibit 2, Tab 1).
[38] The steps taken include verifying the age demographics of the contractor’s followers both before entering into the agreement and after the post was made. Fire & Flower submitted that “reasonable steps” should not require a standard of perfection and that the analysis of what is reasonable must include an assessment of the legislative objectives as well as consideration of industry practice. Fire & Flower is of the opinion that Regulatory Services has repeatedly revised and contradicted its positions regarding what constitute “reasonable steps.”
[39] Fire & Flower argued that Regulatory Services’ interpretation of “reasonable steps” to prevent young persons from accessing cannabis promotional materials is also inconsistent and the Regulatory Services has provided no evidence in support of the assertion that the steps taken by Fire & Flower were not reasonable nor any justification for why a reliable indicator of age would not be considered a reasonable step.
[40] In response to the inclusion of the operating history of Fire & Flower on the Incident Report, Fire & Flower disputed an Inspector’s Caution that was issued against them on January 8, 2022 with respect to another social media post. Fire & Flower argued that any inference drawn from the operating history review is improper and that Fire & Flower is dissatisfied with the reasons provided by Regulatory Services for the caution (Exhibit 2, Tabs 9-10).
[41] Fire & Flower provided threads of email correspondence between Mr. Anderson and numerous AGLC Inspectors, Legal Counsel and AGLC’s Director of Compliance evidencing that Fire & Flower has sought clarification on various aspects of the Handbook, AGLC’s policies and Regulatory Services’ enforcement approach. Fire & Flower argues that the enforcement approach is complaint-driven and inconsistent (Exhibit 2, Tabs 13-19).
[42] Fire & Flower provided a summary of differences between the Tobacco Act and the Cannabis Act and argued that there are only minor differences between them (Exhibit 2, Tab 21).
[43] Fire & Flower argued that there is no evidence available to lead the Panel to believe that Instagram posts directed at an adult audience are likely to induce young persons to consume cannabis products or otherwise harm the public policy objectives set out in the governing legislation.
[44] Social media marketing by adult influencers is a generally accepted industry practice in the Canadian cannabis industry as evidenced by the “Social Media Influencer of the Year” category at Toronto’s 2022 O’Cannabiz Awards (Exhibit 2, Tab 23).
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[45] Fire & Flower maintained that the post in question was made by and for Ontarians. It is the opinion of Fire & Flower that the Regulatory Services Division of AGLC was contacted about Fire & Flower’s December 2021 post because of its “reactive, complaints-driven enforcement approach” and that disciplinary action to address the post is outside the jurisdiction of Alberta’s regulatory body.
[46] In consideration of the interference with Fire & Flower’s freedom of expression, Fire & Flower presented the framework for assessing the infringement of Charter values and the findings set out in Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610, 2007 SCC 30 (Exhibit 2, Tab 24).
[47] The case suggests that overbreadth and vagueness must be considered when determining the scope of Charter values on interpretation of restrictions on expression. The Supreme Court of Canada decision suggests that “the provision must give adequate guidance to those expected to abide by it;” and the provision “must limit the discretion of state official responsible for its enforcement.”
[48] In light of that decision, Fire & Flower argued that Regulatory Services’ overall enforcement and disciplinary approach as well AGLC’s policy development methods are “overly broad and vague in a manner that is inconsistent with Charter values.”
[49] In response to the cases presented by Regulatory Services and their position on the interference with freedom of expression, Fire & Flower asserted that AGLC bears the burden of demonstrating that the sanction and prohibition of the post are reasonable.
[50] Fire & Flower is of the opinion that AGLC’s handbook and its definitions of “advertising” and “product promotions” are inconsistent with the definition of “promote” in the Cannabis Act and reiterates that Regulatory Services has refused to provide clarification or a consistent interpretation of the policies when asked.
[51] Fire & Flower argued that the alleged contravention of Section 6.1.3(a) is improper as that particular provision appears to refer to advertising in physical places. They argued that marketing activities for licensed cannabis retailers via social media and other electronic communications are more clearly governed by Section 6.1.3(c).
[52] Regulatory Services has presented concerns in its evidence that have not been previously expressed to Fire & Flower despite its requests for clarification during the investigation process, as evidenced by the email interactions submitted.
[53] Fire & Flower is of the opinion that Regulatory Services’ characterization of self-reporting as an insufficient age-gating method is not consistent with Section 6.1.1 of the handbook.
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V.
Summation
Regulatory Services [54] AGLC regulates the distribution and sale of cannabis in Alberta and it is responsible for protecting public interest through the administration of the GLCA. Therefore, AGLC has jurisdiction over Alberta licensees and the authority to regulate their activities. Regulatory Services acted within its jurisdiction in issuing the administrative sanction.
[55] The federal Cannabis Act governs the promotion of cannabis products and cannabis-related accessories and services. Section 17 of the Cannabis Act allows promotion of cannabis subject to restrictions; in particular, promotion is permitted by telecommunication “where the person responsible for the content of the promotion has taken reasonable steps to ensure that the promotion cannot be accessed by a young person.” The GLCA is written in accordance with the Cannabis Act.
[56] Regulatory Services submits that under the authority granted by Section 90.17 of the GLCA, AGLC has established its own policies respecting the advertising and promotion of cannabis products which are outlined in Section 6.1 of the Handbook.
[57]
Regulatory Services maintains that self-reporting of age is an insufficient age-gating method.
[58] While the sanction and prohibition of the Instagram post may have infringed on Fire & Flower’s Charter-protected freedom of expression, Regulatory Services argues that it was a measured approach to executing AGLC’s statutory objectives. Therefore, the infringement amounts to a proportionate balance of Charter values and AGLC’s statutory mandate.
[59] As set out in Doré v Barreau du Quebec, “even where Charter values are involved, the administrative decision-maker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case.” Decision-makers are entitled to a measure of deference so long as the decision “falls within a range of possible, acceptable outcomes.”
[60] Accordingly, Regulatory Services asks the Panel to confirm the administrative sanction of a $10,000 fine as issued on February 24, 2022.
Fire & Flower [61] Fire & Flower maintained throughout its submissions the issues raised in the preliminary matters; that the statutory requirements of Section 94(1)(a.1) of the GLCA have not been met, that the administrative sanction notice was deficient and that the substantive hearing is not properly held.
[62] The post in question did not make any claims about quality or efficacy nor did it offer any endorsement of a cannabis product’s quality or efficacy and should not be considered a testimonial or endorsement.
[63] Fire & Flower maintains that it took reasonable steps to ensure that persons under the age of 18 years could not access the advertisement and that Regulatory Services has not stated what would meet the standard of reasonableness being enforced.
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[64] Fire & Flower states that they have sought to work with AGLC in a spirit of partnership and compliance by informing AGLC of best practices and have identified errors and gaps in the drafting and interpretation of cannabis policies. Fire & Flower argues that AGLC’s resources have been unavailable or insufficient when clarification on legislation or policies is required.
[65] Despite these efforts, Fire & Flower is of the opinion that it has been unfairly and disproportionately targeted by AGLC for arbitrary enforcement.
[66] For those reasons and for the reasons presented in its submissions, Fire & Flower requests that the Panel find that the substantive hearing is not properly held in accordance with Section 94(1)(a.1) of the GLCA.
[67] Alternatively, Fire & Flower requests that the Panel cancel the administrative sanction as imposed by Regulatory Services.
[68] Fire & Flower further requests that AGLC engage in a comprehensive review of its policies with respect to cannabis marketing activities through public consultation with industry stakeholders and a regulatory impact assessment of their effect on constitutionally protected freedoms. Additionally, that AGLC increase its internal resources for training AGLC staff in the proper interpretation of its policies, including their relationship to other governmental authorities and statutes.
VI. Analysis [69] The Panel reviewed all submissions but disregarded those that were outside of the purview of this Panel and not related to the alleged contraventions.
[70] The Panel finds that the email correspondence and associated evidence from November 2019 to January 2020 submitted by Regulatory Services (Exhibit 1, Tab C, Attachment 10) is not related to the incident of December 15, 2021 and therefore will not be considered.
[71] The Panel takes notice that the April 7, 2022 letter to cannabis licensees and representatives regarding age-gating (Exhibit 3, Tab 1) was sent to Fire & Flower after the administrative sanction was imposed by Regulatory Services. As such, the submission is outside the scope of the incident and was not considered.
[72] The Panel is comprised of members of the Board of AGLC. The Board has the power in Section 17 of the GLCA to delegate authority to the CEO, which it has done. The CEO has further delegated the authority in accordance with the GLCA. The Panel directed, by way of the preliminary matters decision, that Regulatory Services provide evidence of that delegation to Fire & Flower.
[73] In accordance with Section 93.1 of the GLCA, the Incident Report dated February 16, 2022, enclosed with the Notice of Administrative Sanction, contains the record of events relating to the incident and the decision to impose the administrative sanction as approved and endorsed by the VP of
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Regulatory Services at the time, Dave Berry. The Notice of Administrative Sanction and Incident Report meet the requirements set out in Section 93.1 of the GLCA.
[74] The Panel has determined that whether the contractor is or is not an influencer is irrelevant and therefore has not considered either party’s submissions or evidence on this question. However, the Instagram post in question does signify endorsement in violation of Section 6.1.5(c) of the Handbook.
[75] The Panel finds that the discount code and the language of the post constituted an endorsement by the contractor of a cannabis product and such promotion contravenes AGLC’s policies. The contractor’s caption, accompanied by the imagery of a hand opening a package of cannabis infused candy, expresses their support for the “Artist” gift guide and other holiday gift guides offered by Fire & Flower. The contractor’s personalized, publicly shared discount code signifies their approval of Fire & Flower, the products It sells and their campaign. Even if the post was completely age-gated and not viewed by minors, it is an endorsement and therefore violates Section 6.1.5(c) of the Handbook and Section 90.17 of the GLCA.
[76] The Panel finds that Fire & Flower did not take reasonable steps to ensure minors did not have access to the Instagram post. The steps taken by Fire & Flower to verify age data of followers did not demonstrate a sufficient attempt to mitigate against the risk that minors could view the Instagram post because, as confirmed by Fire & Flower, minors were in no way prevented from accessing the post.
[77] As a result, the Panel finds that Fire & Flower contravened Section 6.1.3 of the Handbook and consequently Section 90.17 of the GLCA.
[78] Fire & Flower is licensed in Alberta and operates several licensed retail cannabis stores in Alberta. Therefore Fire & Flower is subject to Alberta’s legislation and AGLC’s policies and is responsible for operating in accordance with the provincial laws and policies. Fire & Flower, through the contractor, created and posted content which could be viewed by Albertans; therefore, the Panel holds that there is a nexus of connection to the province.
[79] This Panel finds that Regulatory Services acted within its jurisdiction and acted reasonably in imposing a fine against the licensee at the level of the corporation, Fire & Flower Inc.
[80] As found in the preliminary matters decision, this Panel is not prohibited from considering Charter values in the context of the statutory framework, in accordance with the direction of the courts on this issue. Further, the Panel has the ability to consider arguments relating to procedural fairness and natural justice and interpretation of its own statute and regulations.
[81] In consideration of the arguments and legal test applied by both parties on the issue of Charter values and the infringement of freedom of speech, this Panel finds that it is outside the purview of the Panel or Board of AGLC to consider whether the Cannabis Act or directions from Health Canada infringe upon the rights of Canadians.
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[82] When the Government of Canada legalized the sale and use of cannabis it chose to impose certain restrictions on the sale and use of this product. One of those restrictions is advertising, and in particular ensuring that minors in Canada are not exposed to the promotion of cannabis. Each province has the responsibility to uphold these restrictions and the AGLC regulates the sale and distribution in the Province of Alberta. AGLC has the responsibility to ensure that minors are not exposed to the promotion of cannabis products, and each cannabis licensee must ensure that it does not advertise or promote cannabis to minors.
VII. Finding [83] For the reasons noted above, the Panel finds that Fire & Flower contravened Section 90.17 of the GLCA, specifically the policies found in Section 6.1.3 and at Section 6.1.5(c) of the Handbook with respect to advertising and promotion of cannabis products.
[84] Further, pursuant to Section 121 of the GLCA, the Panel finds that Fire & Flower did not take all reasonable steps to prevent any employee or agent (contractor) of Fire & Flower from contravening the provisions.
[85] The Panel has the authority to confirm, replace or cancel an administrative sanction and is not bound by the Administrative Sanction Guideline for Violations. In accordance with Section 94(7)(b) of the GLCA, the Panel replaces the original administrative sanction imposed by Regulatory Services as follows:
•
The $10,000 fine is replaced with either (i) a fine of $10,000 or (ii) a 40-day suspension of all of Fire & Flower Inc.’s Alberta locations licensed under Corporate Stakeholder number 754348.
[86] The fine is to be paid on or before September 15, 2022, or the suspension served commencing with the normal opening of business (Mountain Standard Time) on September 19, 2022 and continuing until the normal close of business on October 29, 2022.
Signed at Calgary, this 29
th
day of July, 2022
Kent Breedlove, Presiding Member, Hearing Panel
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