Pubdate: Thu, 05 May 2016
Source: Globe and Mail (Canada)
Copyright: 2016 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Harrison Jordan
Note: Harrison Jordan is a second-year law student at Osgoode Hall 
Law School and heads the Big Toke, which offers consulting services 
for cannabis businesses.
Page: A16

WHY POT SHOPS AREN'T BEING SHUT

Canada's municipalities are in a tough position when it comes to pot. 
Faced with a previous federal government that had no interest in 
legalizing marijuana or modifying its obtuse mail-order 
medical-marijuana program, Toronto and Vancouver have swiftly become 
home to more than 250 dispensaries that operate outside the law, with 
more than 100 now open in Ontario's capital.

The rush to open more storefronts appears to be accelerating ahead of 
the federal government's pledge to introduce a legalization bill next 
spring, as wannabe entrepreneurs try to cash in before a potentially 
new regulatory regime comes into force. But cities facing pressure 
from citizens to crack down on the flourishing businesses are 
discovering they may lack the legal authority to do so.

In June, 2015, Vancouver city council passed a bylaw establishing a 
licensing process for the city's storefront pot shops. The bylaw 
sought to regulate everything from the minimum age of patrons to 
promotional displays to a buffer zone between schools. While some 
businesses have advanced to the next stage of review, no storefront 
has yet to receive a coveted full business licence, and all stores 
that did not advance were supposed to close by April 29. The next 
day, city officials there began ticketing some locations and 
threatened court-ordered shutdowns. There's no similar bylaw in 
Toronto targeting storefronts, though that hasn't stopped the city's 
chief municipal licensing investigator from suggesting that 
enforcement action would be taken.

However, our Constitution as passed in 1867 prescribed a federalist 
system of government that divided the power to enact laws between the 
levels of government. Under what's known as the doctrine of 
paramountcy, the Constitution dictates that the federal government 
has exclusive authority over certain matters, including criminal 
laws. That's not to say other levels of government can't levy 
conduct-curbing sanctions on businesses and individuals - cities do 
that all the time. But the moment they attempt to regulate something 
that is at its core a matter of criminal law, they are overstepping 
into the exclusive criminal-law power of the federal government.

Vancouver's city staff, cognizant of this hazard, drafted the bylaw's 
language with finesse so that it appears to comply with the division 
of powers. Instead of explicitly targeting businesses that sell 
marijuana, the bylaw purports to cover "retail business in which the 
use of marijuana for medicinal purposes is advocated." Similarly, 
there are no rules about the supply or quality of marijuana, and the 
ban on "edibles" that storefronts face is actually a blanket ban on 
foods that doesn't mention the substance. But even with the textual 
sleight of hand, Vancouver may not be in the clear.

In 2013, the Ontario Court of Justice invalidated multiple sections 
of bylaw in Vaughan that targetted "body rub parlours," finding that 
while the city had the general ability to regulate businesses within 
its boundaries, some of the bylaw's regulations were an attempt to 
regulate the morality of prostitution, which only the federal 
government can do.

Toronto officials have referenced an existing marijuana-related 
zoning bylaw dictating where Health Canada-approved licensed 
producers of federal mail-order medical marijuana can establish their 
facilities. While the federal government contemplated localized 
zoning bylaws for licensed producers, it never did the same with 
respect to outlaw dispensary storefronts. Any attempt at homemade 
enforcement could be beyond the city's legal authority.

Clearly, Vancouver and Toronto are one compelling court challenge 
away from having their hands tied by a judge.

What must happen next? Prime Minister Justin Trudeau should realize 
that the dispensary boom won't settle down on its own. Ottawa should 
immediately bring provinces and cities to the table, and temporarily 
devolve some of its power so that dispensary growth can be 
responsibly managed before more robust federal legislation is 
introduced. This also serves a secondary purpose of identifying and 
measuring the kinds of rules that work for our communities before 
imposing a nationwide regulatory regime.
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MAP posted-by: Jay Bergstrom