Skip to content
Join our Newsletter

Vancouver sticks to ban on marijuana goods

Supreme Court of Canada rules medical marijuana legal in all forms

Vancouver's second night of public hearings Thursday on its proposal to regulate illegal marijuana dispensaries was overshadowed by a Supreme Court of Canada ruling released earlier in the day that could directly affect the city's plan to ban all marijuana-infused products from pot shops.

In upholding a lower B.C. court ruling, seven Supreme Court judges were unanimous in concluding prohibition of non-dried forms of medical marijuana used for making goods such as brownies, cookies and tea violates the Canadian Charter of Rights and Freedoms.

To date, the courts have required only dried, or smokable marijuana be accessible to Canadians when authorized by a doctor, with more than 18,000 British Columbians legally allowed to access marijuana for medical purposes.

"The evidence demonstrated that the decision to use non-dried forms of marijuana for treatment of some serious health conditions is medically reasonable," the ruling said. "To put it another way, there are cases where alternative forms of cannabis will be 'reasonably required' for the treatment of serious illnesses. In our view, in those circumstances, the criminalization of access to the treatment in question infringes liberty and security of the person."

The ruling stems from a 2009 case where police arrested Owen Smith at his Victoria apartment for possessing 211 cannabis cookies, a bag of dried marijuana and 26 jars of liquids labelled "massage oil" and "lip balm." Smith worked as a baker for Cannabis Buyers Club of Canada.

The ruling comes as city council considers a staff proposal to regulate more than 90 pot shops in Vancouver. Subjecting operators to an annual $30,000 licensing fee and criminal record checks are among the proposed rules. So is banning all goods infused with marijuana — commonly referred to as edibles — from pot shops and only allow marijuana oil for sale.

The City of Vancouver issued a statement prior to Thursday's hearing, saying it reviewed the Supreme Court ruling and reiterated its position held by Dr. Patricia Daly, chief medical health officer for Vancouver Coastal Health, that only marijuana oil will be allowed the sale.

"The sale of oils allows individuals to create their own edibles and the proposed regulations do not compromise the individual's right to access edible medical marijuana," said the statement, noting edible products are being sold in the form of candies and baked goods, which appeal to children. "Evidence in the U.S. is that wider availability of these products is causing increased poisonings in children, and we want to prevent this from occurring here in Vancouver. Unregulated edible products also pose a greater risk to adults than other forms of marijuana."

Vision Coun. Kerry Jang said during Thursday night's hearing that his reading of the Supreme Court ruling as it applies to Vancouver's proposal was, "I don't see us in contravention there."

"As I read the city's proposed bylaws, they're not in any way saying you can't eat your marijuana, your cannabis," Jang said in an exchange with lawyer Robert Laurie, one of the first speakers of the night. "In fact, what it's saying is that, you know, if you want to make your own, fill your boots."

Laurie is president of Ad Lucem Law Corp. and has acted for licensed marijuana producers, marijuana activists and dispensary operators. He cautioned council to ensure its proposed regulations are "in the spirit" of the Supreme Court ruling. Because if they're not, he said, "your regulations will be struck down."

Jang interrupted him: "You're suggesting then that our proposed regulations are not in the spirit of the Supreme Court [ruling]."

Laurie: "I'm not going to say that they're not. I'm just saying that I think when the regulations were written initially, they were written devoid of what the jurisprudence and the reasoning and the medical testimony that the Supreme Court had considered when they made this [decision]. As I say, I don't think they're saying anything that's counter. All I'm saying is, hey look, some smarter lawyers than me at the end of the day — the Supreme Court of Canada — has done a pretty thorough analysis on this."

At least 50 of the people who registered to speak at the hearing didn't show up Thursday night, leaving Laurie to assume their absence was related to the Supreme Court decision.

"They're pretty happy with the edibles' decision and they probably don't want to waste time speaking about it," he told council.

News of the Supreme Court's decision was on the minds of others who lined up to weigh in on the city's proposal, which is unprecedented legislation for a Canadian municipality and has raised the ire of federal Health Minister Rona Ambrose, who wants police to shut down the dispensaries.

Vancouver School Board chairperson Christopher Richardson told council that a board committee agreed to support the city's proposal to ban edibles. He elaborated on the committee's rationale in a written statement, which he provided to the Courier.

"There is evidence to suggest that these products are attractive to children and youth, who may not understand what they are ingesting when it appears to be a cookie or candy," his statement said. "There is also concern about the delayed effect of the drug when it is consumed through edible products and potential for overdose."

Richardson also urged council to provide a portion of any licensing fee to be spent on "educational purposes" and youth addiction support services. Another request was the city increase the distance between pot shops and schools from the proposed 300 metres to 500 metres.

"Unless very firm boundaries are set in place and enforced strictly, we have significant concern that these outlets could easily result in an increase in marijuana use by youth in the city," he said.

Frederick Pritchard, who described himself as "an outspoken cannabis activist," told council he operates a mail order and delivery dispensary. He said pot shops are the only reasonable access point for people to obtain edible products.

"I feel a ban on edibles now, as of today, is unconstitutional against all of our Charter of Rights and Freedoms," he said as he urged council to amend the city's proposal to allow for edibles. "Cannabis is medicine."

As the Courier reported two weeks ago, the federal government will not speak at the hearings. But yesterday, Ambrose told reporters in Ottawa that she was "outraged" by the Supreme Court ruling, and in a prepared statement sent to the Courier, said: "As health minister, it is very disappointing to see marijuana continue to be normalized for youth in the same manner planned by Justin Trudeau, making it easier for illegal drug dispensaries to operate in neighbourhoods. While storefronts selling marijuana are illegal and under the Conservative government will remain illegal, some municipalities continue to disregard the law. The expansion of pre-existing court-imposed program to include baked goods and candies makes marijuana even more attractive and accessible to youth and reflects part of Justin Trudeau's campaign to legalize and normalize marijuana."

Joyce Murray, the Liberal MP for Vancouver-Quadra, told the Courier earlier this month the continued partisan shots at Trudeau amount to "political trash talk" by the Conservatives, whom she blamed for allowing dispensaries and marijuana use among young people to flourish.

"The reason that the city is having to regulate the dispensaries is because of the government's policies and failure of leadership on the issue of marijuana," said Murray, noting she supports the city's move to regulate the pot shops.

The Liberals, she said, want to see a national policy shift where marijuana is "properly regulated and controlled" to address Canadians' health needs and curb organized crime's involvement in the marijuana trade. In 2001, the courts made possession of marijuana possible for patients. In 2013, the federal government moved to have all medicinal marijuana produced in government-sanctioned dispensaries and delivered by mail.

While the law is the subject of a legal challenge, Vancouver's pot shops continue to proliferate, with almost 100 at the city's last count.None of the dispensaries are licensed by Health Canada, endorsed by a medical body or associated to any legitimated health service provider.

Council heard from 42 speakers over two nights of the hearings, with all but one person generally in support of the proposed regulations, notwithstanding the need to lower the $30,000 licensing fee and allow the sale of edibles.

The hearings resume Saturday at 10 a.m.

mhowell@vancourier.com

@Howellings