Q&A: If marijuana dispensaries are illegal, why aren’t they being shut down?

We’ve had a lot of questions from readers about the legal status of Magna Terra, the marijuana dispensary that’s set to open soon on Iber Road. If marijuana dispensaries are illegal, why are they allowed to continue operating in Ottawa? The answer: it’s complicated!

Is marijuana legal in Canada or not?
Marijuana for recreational use is illegal; marijuana for medical use has been legal in Canada since 2001.

But the Liberal government wants to legalize everything, right?
Yes, but it will take a while. The government is expected to introduce new legislation that would legalize marijuana for recreational use in 2017, and it will take months or years for the legislation to work its way through committees, the House of Commons and the Senate.

Magna Terra says they’ll only serve medical users, so what’s the problem here?
“Generally there are only two ways you can get legal access to marijuana for medical purposes right now,” lawyer Eugene Oscapella recently told CBC radio.  “One is through the licensed producer system set up under the marijuana for medical purposes regulations (MMPR). The other way is if you a license to produce your own or have a designated producer to produce it for you.”

That licensed producer system includes mail order services like Tweed in Smiths Falls, but not dispensaries like Magna Terra.

Didn’t the courts strike down the MMPR?
Yes they did. Back in February, a federal court judge ruled that the regulations were unconstitutional in a case known as Allard v Canada.

Lawyer Timothy Morgan explained in Toronto Now:  “While the decision focused on the right of patients to grow marijuana for personal use, it’s important more generally: the court explained that the regulations were unconstitutional in part because their effect was to limit supply, which in turn increased the cost and decreased access to marijuana.”

Here’s the catch: the federal court ruled the regulations are invalid, but gave the government six months to figure out new regulations.  That deadline is coming up on August 24.

If that deadline passes without the government introducing new  regulations, medical marijuana will be unregulated — which could give facilities like Magna Terra a legal loophole to operate without breaking the law.

(Update: Health Canada published new regulations on August 11, but there are no changes that would allow for marijuana dispensaries — for medical or recreational use.)

There are several medical marijuana dispensaries in Ottawa already – why aren’t police shutting them down?
“The police have considerable discretion in how they enforce the law,” Oscapella explained in a recent interview with the Stittsvegas Podcast.  He said police enforcement would depend on the extent the public was concerned about marijuana dispensaries.

If they’re not a major public nuisance then police have less incentive to act.  But if they’re getting complaints about them, or they hear that teenagers are able to buy pot from them, then they’ll start to get involved.

Toronto police spokesperson Mark Pugash put it more succinctly in an interview with Global News: “We concentrate on trafficking, we concentrate on things like fentanyl — that’s where the drug squad puts its priorities.”

What about a municipal licensing scheme?
Some Canadian cities, notably Vancouver, have introduced (or are in the process of introducing) municipal regulations.  Vancouver’s rules include a $30,000 operating license, zoning restrictions, and limits to the hours of operation.

There is no licensing scheme in Ottawa, although some councillors have called for one to be created.

Stittsville councillor Shad Qadri has said that he’s not opposed to the sale of marijuana for medical marijuana purposes, but that dispensaries like Magna Terra need to be licensed.

Magna Terra’s owner Franco Vigile tells StittsvilleCentral.ca that he would support a municipal regulatory framework: “I feel the city of Vancouver is a great example of doing it properly. They understand it’s a grey area but still see the need in their residents gaining convenient access to the medicine.”

Municipalities are limited to what they can regulate, and some legal experts have questioned the legality of some of the municipal regulations.

“The moment they attempt to regulate something that is at its core a matter of criminal law, they are overstepping into the exclusive criminal-law power of the federal government…” wrote law student Harrison Jordan in the Globe and Mail. “Clearly, Vancouver and Toronto are one compelling court challenge away from having their hands tied by a judge.”

(The Ottawa Citizen reported this week that some marijuana dispensaries have been inspected by Ottawa Public Health because they are selling food. So far all the facilities that have been inspected have passed.)

Does Magna Terra doesn’t comply to the zoning on Iber Road?
The property at 83 Iber Road is zoned as IL[1159], or Industrial Light Zone.  There’s a wide variety of uses permitted (you can see a list here), including medical facilities.  The zoning prohibits retail uses, “but allow limited sample and showroom space that is secondary and subordinate to the primary use of buildings for the manufacturing or warehousing of the product”.

It’s not clear if the facility would be considered a medical facility or if it would qualify for retail use.

What are the chances that Magna Terra’s owner could  go to jail?
Pretty slim, in my opinion.  Medical marijuana dispensaries, regulated or not, aren’t high on the priority list for police in Canada. Most of the reaction I’ve heard from the community – either in person or on social media – has been overwhelmingly in support of medical marijuana facilities.

What’s more, owners like Vigile are supported by a large network of activists and lawyers who will be eager to challenge any charges in court.

They’re also actively lobbying all levels of government to encourage a new regulatory framework that would make their facilities legal to operate.  For example, Manga Terra has engaged prominent Ottawa lobbyist David Gourlay to lobby at the federal level.

But what about the children?
I believe Vigile when he says that he’s committed to operating a medical marijuana facility for adults. He’s operating in a grey area of the law, and has every incentive to prevent the marijuana he sells from ending up in the hands of minors, or to be used recreationally. He does not want to risk raising the ire of the community or the police.

Besides that, local high school students assure me that the street price of marijuana is far less expensive than what you’d pay from a place like Magna Terra.

You can read previous articles about Magna Terra here. Send us your comments and questions at feedback@stittsvillecentral.ca