Judge grants ‘budtender’ absolute discharge
Most charged in raids were ‘budtenders’, along with some managers and owners
An Ottawa judge has discharged drug-trafficking charges against a young clerk who worked at a marijuana dispensary but said she didn’t realize the business was illegal.
The woman was only 21, had no criminal record, has accepted responsibility and expressed remorse, and is at low risk of reoffending, Justice Norman Boxall said in his sentencing decision.
Selena Holder-Zirbser is one of about 44 people who have been charged in police raids on illegal shops in Ottawa. She says she took the $12-an-hour job because she needed to pay her rent.
In his decision, Boxall said it wasn’t up to the judiciary to decide who is prosecuted.
“If the authorities chose to prosecute only certain individuals to combat dispensaries, that is within their discretion. But it is inappropriate for the court to fight any battle against dispensaries on the backs of individuals with low moral culpability, significant remorse and strong rehabilitative potential.”
Earlier in the case, Boxall wondered aloud why prosecutors have not gone after landlords of dispensaries.
He also said he couldn’t understand why police don’t close the illegal shops that operate openly on major streets.
Most of the people who have been charged in raids were clerks, although several managers and owners have also been arrested.
The police say they are frustrated because they don’t have the resources to investigate all the shops. They are often “fly by night” operations and it can be difficult to identify the owners. Police can’t force dispensaries to close their doors, either, simply confiscate the marijuana and arrest people inside who are selling it. Many of the shops reopen after raids, and new ones pop up.
Dispensaries have opened across the province, emboldened by the federal government’s plan to legalize recreational pot this summer.
The courts must apply the country’s drug laws as they stand now, noted Boxall in his sentencing.
However, it would “fly in the face of justice and the public interest” to saddle Holder-Zirbser with conditions that would make it difficult for her to be a productive member of society, Boxall said in giving her an absolute discharge.
Holder-Zirbser was arrested when police raided the Rideau Street dispensary WeeMedical where she worked in November 2016.
She pleaded guilty to possession of cannabis for the purpose of trafficking. The maximum term for that offence is five years.
The Crown had asked for a conditional discharge, saying that was the lowest possible sentence that would be appropriate on a serious charges of drug trafficking. That sentence could have prevented Holder-Zirbser from travelling to the U.S. or obtaining criminal record clearances needed for jobs. Boxall said it would be cruel and counterproductive to HolderZirbser’s mental health to prevent her from ever again visiting her grandparents in Florida.
Court heard earlier that Holder-Zirbser suffers from anxiety. She loves animals and had hoped to take a veterinary technician course at Algonquin College, but a conditional discharge would have hampered her ability to get the criminal clearances needed for co-op work placements.
The Crown said a conditional discharge was also needed to help deter others from taking jobs at illegal dispensaries. However, Boxall noted that marijuana trafficking laws are enforced inconsistently.
“General deterrence is best met by an increased certainty of apprehension. Given the number of dispensaries and the relatively few prosecutions, the government is seemingly either unwilling or unable to make working in or purchasing marijuana at a dispensary likely to result in apprehension.”
It’s rare that a “budtender” in Ottawa is given an absolute discharge. This appears to be the first such case in the city, although the Public Prosecution Service of Canada was unable to confirm that by deadline.
Prosecutors have taken a different approach in southern Ontario cities.
Charges have been withdrawn against more than 150 budtenders charged with drug trafficking during raids at dispensaries in Toronto, London, Hamilton, Oshawa, Newmarket and other jurisdictions, said Jack Lloyd, a Toronto lawyer who specializes in cannabis law. He said he expects charges against more than 200 more people to be withdrawn in the coming months.
Many budtenders signed a peace bond promising not to work in an unlawful dispensary.
In most jurisdictions, the only charges proceeding to trial are against the owners of dispensaries, said Lloyd, an associate for Kirk Tousaw, a prominent cannabis litigator.
Lloyd and Tousaw Law represent several dispensary workers charged in Ottawa. They intend to defend them at trial on constitutional grounds, said Lloyd.
Lloyd said discharges, peace bonds and other creative solutions are the best way to handle the dispensary clerks charged in raids, rather than “ruining some kid’s life over a minimum-wage job that the majority of the population not only does not care about, but may appreciate for the fact that they offer reasonable access to medical cannabis, which the government’s medical cannabis program has failed to do.”