Cities have right to regulate marijuana dispensaries: B.C. Supreme Court
Thursday, Feb. 16, 2017
VANCOUVER — Special to The Globe and Mail
Cities have the right to deny business licences to illegal marijuana dispensaries and to prohibit the cultivation or sale of marijuana through their zoning bylaws, a B.C. Supreme Court judge has ruled.
The case is the latest development in what has become a patchwork of inconsistent rules and legal skirmishes as cities grapple with changing laws and an aggressive new marijuana industry. While the sale of marijuana at storefronts, such as dispensaries, remains illegal, some cities such as Vancouver have moved to regulate them through business licences. Others, including Abbotsford, have remained determined to keep them outlawed.
The court rejected a challenge from Don Briere, a local marijuana entrepreneur with a chain of dispensaries throughout the Lower Mainland. Mr. Briere argued that the City of Abbotsford was violating the Constitution by refusing to permit him to operate – and in turn, he argued, restricting access to medical marijuana.
Justice Miriam Gropper ruled that, even though it is the federal government that regulates the use of drugs such as marijuana, that doesn’t mean that cities can’t have their own rules to regulate it.
That was gratifying news for Abbotsford Mayor Henry Braun.
“This is a signal that the city has the authority to regulate,” he said. “And until [the federal government] changes the law, we will uphold the existing law.”
The lawyer for Mr. Briere, who has multiple stores in B.C. and an online operation all under the name Weeds, had argued that Abbotsford was intruding on federal jurisdiction and also denying access to medical marijuana for people that need it in its aggressive efforts to deny business licences and shut down stores.
But Justice Gropper said that, just because a federal law regulates something, doesn’t mean that a province or city can’t also regulate it.
As well, she said, even though federal law allows for the legal use of marijuana for medical purposes, there’s nothing in the law that guarantees someone should be able to buy it in a retail outlet.
“The existing federal law does not authorize access to medical marijuana by marijuana dispensaries,” wrote Justice Gropper, whose decision came out this week.
Vancouver lawyer Bill Buholzer, who specializes in municipal issues and the legalities around marijuana, said it’s the first time a judge has ruled on the issue of overlapping jurisdictions related to marijuana.
Mr. Briere’s lawyer, Dean Davison, said his client may appeal the decision.
But, he said, it’s unlikely to have much impact on the wildly varying attitudes of different cities in B.C., as they try to figure out what to do about the proliferating marijuana production facilities and retail stores.
“It’s a bigger issue than the City of Abbotsford and, hopefully, it will be resolved soon through federal legislation.”
In the meantime, civic approaches around B.C. vary from hardline, such as Abbotsford, which has energetically worked to shut down dispensaries, to those that occasionally ticket a business, to Vancouver, which has created a special retail category and rules for marijuana dispensaries. Victoria is considering a similar approach.
According to Vancouver’s business licence database, 16 dispensaries have been granted licences this year.
So far, Mr. Briere has been unsuccessful in getting licences for his stores in Vancouver and has shut down two of six outlets, saying he can’t operate when he is being fined $1,000 a day.
Mr. Briere has gone to the city’s Board of Variance to try to get approval, as have many of the illegal stores still operating, but has not succeeded so far.
All of those legal challenges are just one part of what cities are dealing with.
They are also embroiled in making decisions about where Health Canada-approved production facilities can go.
Some have tried to prohibit them on agricultural land, but the province changed the law in May of 2015 to make marijuana production a permissible use on land in the agricultural land reserve.
The City of West Kelowna started the process this week of creating a new bylaw that will restrict production facilities to industrial zones. As well, any producers will be required to install air-filtering systems and ensure that they have adequate security.
Mr. Buholzer said he believes the next legal problem for cities will be the issue of people who have been given the right to grow marijuana for personal use.
That’s something the Conservative federal government had disallowed as of 2013. It was challenged in court and the law was struck down. In August, 2016, the new Liberal government changed the law again to reallow it.
Since a grower may hold up to four licences to provide marijuana for other people, that could mean growers with as many as 400 plants in their homes.
Mr. Buholzer said some city is likely to take action soon on that as people get concerned about the impact on building structures, because of the moisture and mould that grow operations produce, and about neighbourhood security.
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