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Cities cannot restrict medical-marijuana sales, B.C. dispensaries argue in court

Cannabis plants at Tilray, a medical marijuana grow-op in Nanaimo, B.C., Aug. 14, 2014.

John Lehmann/Globe and Mail

Canadian cities have no right to limit where medical cannabis can be sold because the storefront sale of the drug is a federal – not a municipal – matter, say lawyers for two dozen illegal marijuana dispensaries that are fighting a City of Vancouver injunction to shut them down.

They argue the city’s 2015 bylaw licensing cannabis dispensaries oversteps its jurisdiction. Instead, lawyer John Conroy argued on Tuesday at the start of a B.C. Supreme Court trial, the explosion of illicit dispensaries across the country is a result of patients “voting with their feet” as a result of the federal government’s failure to give people the ability to buy the medical marijuana in person. The prohibition on storefront medical cannabis sales, which will remain in place once the drug is legalized, infringes upon patients' Charter right to reasonable access to the drug, lawyers for the stores argued.

"It's an important issue because the federal government still controls medical access to cannabis … and they have not provided for medical dispensaries and that's what these are," Mr. Conroy said during the lunch break of the first day of a trial expected to last three weeks.

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The dispensaries have been operating illegally in a kind of “grey zone,” and the City of Vancouver has aided and abetted their existence by requiring them to be licensed while it makes a $31,000 profit in fees from successful applicants, he added. Many of the stores locked in the legal battle failed to secure a licence because they operate within 300 metres of one another or a school or community centre, which violates Vancouver's bylaw rules.

Those distancing requirements are unconstitutional, Mr. Conroy and the other lawyers argued, because some patients "have difficulty walking one block." He conceded some of the dispensaries in the challenge might be selling the drug recreationally already, but the onus is on the city to prove that.

Two years earlier at a news conference outside the same courthouse, Mr. Conroy said that a Federal Court decision forcing Ottawa to allow medical-marijuana patients to grow their own supply should also result in people being able to buy the drug somewhere in person if they are authorized by their doctor.

The Karuna Health Foundation is the lead plaintiff in the case and operates one dispensary that is licensed and another that is not.

Lawyers for the federal, provincial and municipal governments told the judge that these dispensaries facing injunctions should not be able to argue a Charter challenge because they are corporate entities not private citizens. The judge disagreed and granted one plaintiff, dispensary owner James McManus, private interest standing and chains Karuna and Weeds Glass and Gifts public-interest standing, according to an update late on Tuesday from dispensary lawyer Robert Laurie.

A spokesperson for the federal Health Minister said Tuesday that Ottawa will not be commenting on the case while it is before the courts.

As of its last update at the end of June, the City of Vancouver listed 46 businesses as still going through its licensing process or having received a coveted business licence. Another 75 were said to be operating outside of this process, with the city having issued more than 3,000 tickets worth more than $2.5-million to scofflaw shops over the past two years. Almost 90 per cent of those tickets remained unpaid, according to the city update in June.

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The architect of Vancouver’s bylaw said earlier this year that legalization will make it easier for unlicensed retailers to be brought into compliance by new provincial inspectors, who – like liquor inspectors – will have the ability to seize products, close stores and issue immediate fines that will be "substantially higher" than Vancouver's municipal penalties.

Unsanctioned dispensaries across the Western provinces and Ontario are now facing an existential dilemma: shut down in the hopes of transitioning into the regulated sector or continue selling a drug illegally they say should be made easily available now more than ever.

With a report from the Canadian Press

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