Pubdate: Fri, 17 Feb 2017
Source: Globe and Mail (Canada)
Copyright: 2017 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Frances Bula
Page: S1

B.C. SUPREME COURT RULING GIVES CITIES AUTHORITY TO REGULATE POT 
DISPENSARIES

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 British Columbia
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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