Although the federal government is studying the legalization of marihuana, with the announced intention of introducing legislation sometime in 2017, the sale of cannabis products outside of the framework provided through the Access to Cannabis for Medical Purposes Regulations remains illegal under Canada’s Controlled Drugs and Substances Act. Even so, storefront cannabis dispensaries continue to pop up in communities across Canada, and the criminal justice system seems ill equipped to do much about it. As a result, some municipalities such as the City of Vancouver are taking the extraordinary step of actually regulating these illegal cannabis dispensaries.
Purporting to regulate what is in fact an illegal (criminal) activity is not the only option available to a local government that is concerned about a cannabis dispensary operating in its community. In a post on our website earlier this year, our associate Madelaine Campbell discussed the BC Supreme Court decision in Abbotsford (City) v. Weeds Glass & Gifts Ltd., in which the City of Abbotsford obtained an injunction against the operators of a retail storefront operation that sold marihuana and marihuana products.
In Delta (Corporation) v. WeeMedical Dispensary Society, a decision of the B.C. Supreme Court that was released in August, the court made a similar order. The defendant had applied for a business licence for a medical marihuana retail dispensary, after it had actually commenced operation. Delta refused the business licence, and then sought an injunction under section 274 of the Community Charter on the grounds that the defendant was violating the municipality’s business licensing and zoning bylaws.
The court concluded without hesitation that a violation of the municipality’s bylaws had been made out on a balance of probabilities. The defendant did not seriously contest the fact that it was violating both the current criminal law, and the municipality’s bylaws, and the court noted that nothing in Canada’s medical marihuana regulations allowed for the operation of retail medical marihuana dispensary.
It should be noted that the court’s decision was made before the new Access to Cannabis for Medical Purposes Regulations were put in place, however the new regulations do not permit the operation of storefront dispensaries either.
Additionally, the court found that there were no extraordinary circumstances that would provide a basis for refusing the statutory injunction Delta sought. While not contesting that it was violating the law, the defendant provided the court with submissions about its background and governing philosophy, and its desire to “push the legislative agenda along” in relation to marihuana legalization in Canada. The court acknowledged that the federal government has indicated its intention to amend Canada’s marihuana laws, but noted that it was anyone’s guess when the government might actually move forward with legislation. Additionally, the court noted that it was unknown at this point what any new legal regime might look like. While acknowledging that at the end of the day, operations such as WeeMedical’s might not be off-side the criminal law, the chambers judge observed that the court could only address the situation in terms of what the law is now, and not what it might be in future. The court noted that until such time as democratic bodies such as the federal Parliament decide to change the law, the court is required to enforce the law that is currently in place.
Accordingly, the court concluded that a permanent statutory injunction was the appropriate remedy, a violation of the municipality’s bylaws having been made out on a balance of probabilities.
Of note, the court also found that this was an appropriate case for the award of special costs. On the basis that the defendant had flagrantly disobeyed the municipality’s zoning bylaw and business licensing bylaw, the court concluded that an award of special costs was appropriate, and that such and order would send a message to other operations that seek to operate outside of the limits of the law.
In the course of giving reasons, the court referred to the fact that some local governments in British Columbia have opted to adopt bylaws to regulate cannabis dispensaries, rather than prohibit them. Local governments that are considering regulating cannabis dispensaries should most definitely obtain legal advice before moving in that direction. In the meantime, the B.C. Supreme Court has made it clear in the Abbotsford and Delta decisions that merely because cannabis legalization is on the federal government’s radar does not provide any legal justification for openly flouting the law, and that injunctive relief is available where such operations violate local bylaws.