Pubdate: Thu, 18 Aug 2016
Source: Toronto Star (CN ON)
Copyright: 2016 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Authors: Gerald Chan and Benjamin Kates
Page: A17

CONFUSION OVER POT LAWS HAS CONSEQUENCES

With dispensaries outnumbering ice cream shops in some parts of
Toronto, a casual observer could be forgiven for thinking that
marijuana is legal in Canada. Pot has always fallen in somewhat of a
"grey area" - compassion clubs, for instance, have operated since the
1990s - but this is something altogether different.

Make no mistake: at least for now, these neighbourhood drug stores are
prohibited by law (subject to certain constitutional arguments
available to those selling to documented medical patients). Owners,
employees and customers face potential criminal charges; owners can
also be prosecuted and fined under municipal zoning and licensing
bylaws; and health practitioners issuing prescriptions can be
disciplined by their professional regulator.

Our political and law enforcement leaders have emphasized the
illegality of dispensaries in recent public statements. In June, after
police raided Toronto's dispensaries for the second time in a month,
police Chief Mark Sanders said, "It's illegal to sell marijuana unless
you have a licence from Health Canada." (Canada's current regulatory
regime, the Marijuana for Medical Purposes Regulations (MMPRs), only
allows marijuana to be sold by licensed producers to patients with a
prescription by mail order.) Justice Minister Jody Wilson-Raybould has
said that marijuana laws should be obeyed and enforced while they
remain on the books. Toronto Mayor John Tory has described the city's
dispensaries as "bogus" and likened their proliferation to the "Wild
West."

And yet, for all the rhetoric, there they are: dozens of dispensaries
beside dry cleaners, restaurants and shoe stores - all seeking to
pre-emptively corner the market with the federal government's
announcement that marijuana will soon be legally available. The longer
it takes the government to fill in the details, the longer the gap
between law and reality will persist.

At the federal level, we have only a general sense of what the new
regime might look like. The government has promised to "legalize,
regulate, and restrict" marijuana so that possession is removed from
the criminal law but the drug is kept "out of the hands of children."
Meanwhile, at the municipal level, Toronto's Licensing and Standards
Committee declined to take any steps toward developing a regime for
regulating the dispensation of marijuana such as the one adopted by
Vancouver's City Council in June 2015. Instead, the committee
commissioned a staff report due to be considered in October.

The federal task force responsible for hammering out the details of
the new regime was struck on June 30 and given less than a year to
develop an entire framework from scratch. This is no small feat.
Canada has never regulated marijuana for recreational use. The
existing regulatory regime, the MMPRs, speaks only to medicinal use.
And even that regime is still being perfected: A February ruling of
the Federal Court struck down part of the MMPRs as unconstitutional
and gave the government until Aug. 24 to put new regulations in place.

It may be a tall order, but the government must act quickly to clarify
the new rules going forward. When the legal bright lines get clouded
in smoke, risk abounds. At the moment:

* Owners, employees and customers all face potential criminal charges.
In the aftermath of its May 26 raids, Toronto police laid 186 charges
of possession for the purpose of trafficking and 71 charges of
possession of property obtained by crime. Customers who purchase
marijuana are in possession of contraband, and police may obtain
evidence of those purchases if they discover membership lists in the
course of a raid;

* Dispensary owners operate in a precarious business environment,
particularly as new laws may continue to prohibit dispensaries. On top
of criminal charges, stores operating in Toronto can face stiff
penalties for municipal licensing and zoning violations that carry
maximum fines of $25,000 for individuals and $50,000 for businesses.
Inventory can be seized;

* Medical practitioners who assist patients in accessing marijuana
through illegal dispensaries can face regulatory sanction. In May, the
B.C. College of Naturopathic Physicians suspended a naturopath for
providing medical consultations to dispensary patients.

The gap between law and reality is in no one's interests. It
undermines respect for the rule of law and opens the door to selective
enforcement. Having uncaged the magic dragon, all levels of government
must now act quickly to put a new, coherent structure in place.

Gerald Chan and Benjamin Kates practise criminal, regulatory and civil 
litigation at Stockwoods LLP. Gerald argued on behalf of the Criminal 
Lawyers' Association in R. v. Smith, a landmark medical marijuana case 
in the Supreme Court of Canada.
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