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30Aug
2016

This Just In: Selling marihuana still (mostly) illegal, at least for now, even in British Columbia

In case you were wondering, in Canada, “the operation of a medical marihuana retail dispensary … is currently not allowed within the criminal law”. On this basis, in Delta (Corporation) v WeeMedical Dispensary Society, 2016 BCSC 1566, the BC Supreme Court accepted Delta’s refusal to issue a business licence for a medical marihuana retail dispensary even though local governments may not prohibit in relation to business. Similarly, the Court accepted a prohibition, in the Corporation’s zoning bylaw, of medical marijuana retail dispensaries. Accordingly, the Court had no trouble granting an injunction under s. 274 of the Community Charter to shut down a local pot shop.

Although the Society operating the store challenged almost $12,000 in fines assessed by Delta and fought the injunction application, it did not contest the licence refusal or zoning prohibition. As a result, WeeMedical does not squarely address whether local governments, who can’t cut Parliament’s grass by enacting or stiffening criminal laws, can prohibit the use of land for a marihuana dispensary in a zoning bylaw or refuse to issue business licences for the conduct of this particular criminal activity.

Without resolving these threshold division-of-powers issues, Madam Justice Fitzpatrick admonished WeeMedical’s “flagrant disregard” for Delta’s bylaws. She gave the Society just three days to cease operations, ordered it to notify its employees, agents and servants within 24 hours, included a clause permitting police assistance in enforcement if necessary, and awarded special costs against the Society. She also accepted but was unmoved by the facts that WeeMedical operates, apparently without complaint, 23 dispensaries across Canada including 13 in BC, and that in response to medical marijuana dispensaries, “other jurisdictions have taken a different view and course of action for their own reasons.” Finally, Justice Fitzpatrick commented on but did not consider relevant the well-known “state of flux in the federal marihuana laws and their enforcement in relation to medical marihuana or perhaps even marihuana generally.”

On August 24, Parliament addressed that state of flux with the much-anticipated enactment of the Access to Cannabis for Medical Purposes Regulation. The ACMPR is the latest in Parliament’s series of responses to courts’ disapproval of earlier attempts to regulate the production, distribution and possession of marihuana without violating the constitutional rights of people who need the drug for medical reasons. The ACMPR itself, like Parliament’s task, is daunting. Watch this space for further analysis, but here’s the spoiler: some people will again be allowed, expressly, to grow their own marihuana.

So for now, local governments’ position vis-à-vis the regulation of medical marihuana dispensaries with zoning and business licencing bylaws is unchanged. It is also, at least arguably, unsettled. Local governments have succeeded in obtaining injunctions to prevent pot shops, but no court has directly considered the constitutional issue as to whether the use of business licensing or zoning bylaws to prohibit these operations altogether because of their status under federal law may be an impermissible intrusion into Parliament’s exclusive jurisdiction.

Guy Patterson

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