Raiding pot shops not the answer: prof

Until federal laws are in place, it’s not up to bylaw officers, writes Jeff Leiper.

Sending police to shut down pot shops is a “blunt instrument” in the face of the widespread social disobedience that has propelled hundreds of the illegal businesses to open across Canada, says Osgoode Hall Law School professor Alan Young.

“The criminal law is always an ineffective way to make a change in a community,” said Young, a specialist in marijuana law.

“It’s very slow, ponderous, and by the time you get a result, the legal landscape may have changed.”

Ottawa city councillors and merchant groups are debating what to do about the illegal marijuana dispensaries opening in town. There have been calls for police to enforce drug laws and shut them down. Everyone is looking closely at what’s happening in other Canadian cities, especially Toronto and Vancouver.

Toronto police cracked down after dozens of dispensaries sprang up this spring. Since late May, police and bylaw officers have raided 47 dispensaries, arresting more than 90 people and charging them with either drug trafficking, benefiting from the proceeds of crime, or zoning infractions.

But it doesn’t appear to have quelled the tide. Many of the shops reopened, and new ones popped up. There are now about 100 dispensaries in Toronto, said Michael McLellan, spokesperson for a coalition of Toronto dispensaries. That’s slightly more than before the raids, he said. The vast majority are helping medical-marijuana patients, he said. Their operators “believe strongly in what they are doing, that what they are doing is right, that they are helping people.”

The raids are a waste of taxpayers’ money, McLellan said.

Young, who helped to set up a couple of the first medical-marijuana dispensaries in Toronto 15 years ago, said they operated quietly, “under the radar.” Toronto officials felt compelled to act this spring because of the sudden proliferation of shops, he said.

“As we move toward legalization, and people feel like the law has already lost all its moral force, a lot of people jumped the gun, and created a dispensary, some of them still dedicated toward the care of sick people, but many of them were just about selling marijuana to whoever would come through.”

Did police raids solve the problem? “Not really,” he said. “And now we’ve encumbered the criminal justice system with dozens and dozens of criminal charges that I don’t believe there is any real political will to prosecute.

“I believe that over time many of these charges will just disappear.”

Dispensaries that can prove they are genuinely helping the sick are operating in a “grey zone” that may provide them a measure of legal protection, he said.

“They don’t have a legal seal of approval from the federal government, but they have certain protections under the charter of rights that we’ve successfully litigated over the last 15 years that there must be reasonable access to this medicine.”

The federal government is now rewriting its medical-marijuana regulations after a court ruled they violated the charter. Legislation to legalize and “strictly regulate” the sale of recreational marijuana is expected in the fall of 2017.

Ottawa councillors are also discussing the approach taken by Vancouver. Police there said shutting them down was not a priority. But the city responded in June 2015 with licensing and zoning bylaws.

On a recent trip to some of the hipper neighbourhoods of Toronto, I was struck by how quickly marijuana stores have proliferated. It’s inevitable that the debate over municipal licensing and zoning of their operations will start in Ottawa. Before we head too far in the direction of premature regulation, we must consider what council can achieve in the public interest.

The moral and criminal debate is not ours to have. The temptation for some municipal representatives will be to achieve outcomes that are the purview of other levels of government. We should resist that temptation.

Next spring, the federal government is expected to introduce legislation to regulate the production, distribution, retail sale and consumption of recreational weed. First, we’ll hear from a task force charged with informing us on the development of that regulation, exploring health impacts, crime, industry economics and more. Those are all legitimate research areas in advance of new laws, and the types of questions we expect our federal representatives to pose.

Many residents, however, won’t be patient. With a long list of concerns over drug use in general, and about marijuana retailing in particular, city council will face calls to act. We will see demands to create a regulatory regime that addresses the short-term criminality of these operations, and risks becoming conflated with residents’ concerns over safety, security, access to pot by children, and drugging and driving.

In Kitchissippi, we saw a small flurry of comment when National Access Cannabis — a weed-prescription operation — opened on Wellington Street West. Ottawa Medical Dispensary on Carling Avenue was Ottawa’s first to actually sell product; it opened with almost no resident or media attention. From a municipal government perspective — zoning and bylaw enforcement — my approach has been to advocate for treating these stores as retail operations, at least pending clarification of the federal rules.

I have spoken with the stores in my ward and with potential new operators, warning them that it appears clear retail operations run afoul of the Controlled Drug and Substances Act, and that there’s nothing a city councillor can do to prevent charges under that statute. Police enforcement is up to police, working with the Crown to determine their approach. But from a zoning perspective, if a retail operation is allowed, I feel their operation should be safe from bylaw officer visits.

When the rules become clearer, municipalities will likely have a role to play in supporting federal legislation. The first step to creating a licensing regime or zoning restrictions, though, will be to define what to regulate. That won’t be a productive exercise until the feds have finalized their legislation.

Should we go down a regulatory path, it will also be critical to focus specifically on problems supported by existing evidence. Ahead of any history of how these businesses operate or their effect on communities, it would be perilous to anticipate problems. Any crackdown on potential problems might appear to be good politics, but it would be poor policy. A regulatory effort to duplicate police efforts would be just as ill-advised.

It’s never easy for a city council to resist weighing in on any perceived social ill, but on marijuana stores the best course is to recognize the federal law is in transition and that city councillors aren’t police. The conversations around the hallway have already begun, but it’s premature to suggest a regulatory regime. Let’s let police do their work as they see fit and let the feds continue with their substantive discussions.

Doing otherwise could see efforts to get proactive on weed sales go up in smoke.