Police have power, but few resources to shut illegal dispensaries

Police waiting for Cannabis Act to be tested in court, where they hope to see stiff penalties

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WEEK AFTER cannabis became legal in Canada, Hamilton police raided an illegal dispensary, seizing 90 pounds of marijuana and charging everyone who was working.

The next day, the pot shop was back open.

It’s was a common scenario before legalization, but one police hope will change with new powers. It highlights the uncertainty of the new legislation waiting to be tested in court.

“The problem is the legislation, because it’s so new ... on many levels, it’s open to some interpretation,” said Hamilton police Deputy Chief Dan Kinsella, who said he “wasn’t surprised” to see the illegal business back up and running so quickly.

“My goal is to shut these places permanently ... but you’ve got to do it legally and efficiently,” he said.

Legally, the Ontario Cannabis Act gives police new powers to close a dispensary if charges are laid. But Kinsella says police don’t have the resources to keep the property secure.

Both Hamilton bylaw and the province say this isn’t their job, and that enforcement is the responsibility of police.

“The Ontario Cannabis Act gives the authority to the police to lock the doors,” said Ken Leendertse, director of licensing and bylaw. “There is no authority for the municipality to seize these properties or be involved in the enforcement.”

The Alcohol and Gaming Commission of Ontario will be licensing legal cannabis businesses when storefront

shops are allowed this spring, but the province says they’re also not involved with enforcement.

“The city and the province don’t want to be responsible, I get that,” Kinsella said. “But ... I don’t have the resources to put someone there, to hire private security or (install) security cameras.”

He’s quick to point out that the new legislation says police “may” close a premises, not “must.”

So when police raided the Georgia Peach at 945 Upper James St. on Oct. 25, they did not padlock the door. The dispensary, one of four Georgia Peach locations open in the city, was easily able to restock and reopen.

But police are keeping tabs on the operation.

Kinsella says he’s also meeting with the Ministry of the Attorney General later this week to talk about the problem. If it’s a police responsibility to shut the doors, they need the resources to keep those doors shut, he said.

“At the end of the day, it is a money issue.”

Only a few municipalities, including Hamilton and Toronto, are dealing with a significant number of illegal dispensaries. At one point Hamilton had the most per capita in the province with a total of around 80. Before legalization, neighbouring Halton Region had none.

Kinsella said he’s been speaking with other police services, including Toronto and Waterloo, about how best to combat illegal dispensaries. But so much isn’t known because no cases have been tested in court.

The employees working at Georgia Peach were all charged with provincial offences under the Ontario Cannabis Act.

The charge of operating a dispensary or a landlord leasing to a dispensary has a fine up to $250,000 and a corporation can see a maximum $1-million fine.

It’s these stiff penalties that Kinsella said police are hoping will force the illegal businesses to close.

Before legalization, police would lay federal charges, but typically those convicted were only handed a peace bond. This was a manageable risk that allowed many illegal dispensaries to keep operating.

That’s why Kinsella said they’re eager to see how the courts handle the new provincial charges and whether the maximum penalties are actually dolled out.

Police are also warning the landlords who own the buildings that house dispensaries that the business are illegal. New legislation says owners could face fines as high as $100,000 a day if dispensaries continue to operate after charges have been laid.

But, again, Hamilton police want to see if courts actually hand out stiff penalties.

Hamilton has about 21 dispensaries still operating in the city. There were about 30 others that voluntarily shut their doors when cannabis became legal.

Harrison Jordan, a Toronto lawyer specializing in cannabis, says the laws are clear. Anyone who operates after legalization — even if they’re not charged — has no chance to get into the legal market.

He represents a number of clients vying for legal stores, including some who ran dispensaries before but chose to shut down after legalization. The applications are not yet open, but he said it’s generally understood you need about $1 million to get started. He’s read through the federal and provincial legislation and says its clear police have the grounds to shutter businesses.

Jordan questions why police seem to be only laying provincial offence charges, when there are also new criminal code charges available federally that include the possibility of significant jail time.

Kinsella said that while they didn’t pursue federal charges at the Georgia Peach — none of the people charged are owners — that doesn’t mean police wouldn’t lay criminal charges in other cases.

“We’re much more interested on who is supplying these dispensaries,” he said.

The seven charged at the Georgia Peach are expected to appear in provincial offences court on Nov. 20.