Advocates, owners say Toronto pot-shop policing inconsistent

theglobeandmail.com
By Shannon Kari
Oct. 21, 2016

On a warm fall day, the distinctive smell of dried cannabis buds wafts out to the sidewalk of a busy midtown Toronto street. WeeMedical on St. Clair Avenue will at times leave its front door open, providing a clear view for passers-by of what is for sale. Far from secretive, the retail operation is located just a few doors from a donut shop where it is not unusual to see a parked police car. It was one of the 43 dispensaries where Toronto police executed search warrants in late May of this year, yet it’s business as usual now, open seven days a week.

A few kilometres south, at Green Buddha on College Street, a Blue Jays-cap-wearing employee barely glances up from his phone as he sits behind a counter topped with a number of glass jars filled with different strains of cannabis. A colleague was charged with drug trafficking offences a few weeks back, but this appears to be of little concern. “It wasn’t me,” said the employee, who then resumes scanning his phone.

It’s been nearly five months since Toronto police raided dozens of storefront marijuana dispensaries in an attempt to crackdown on the illegal industry. The city-wide sweep, called Project Claudia, led to nearly 200 trafficking-related charges and the arrests of 90 people. The city’s Municipal and Licensing Standards division also issued nearly 80 sets of charges related to bylaw infractions (such as operating without a business license).

This week the city announced the owners and employees of six dispensaries had pleaded guilty to bylaw infractions and were ordered to pay fines ranging from hundreds of dollars to $4,000. Of the 138 Toronto dispensaries investigated by the city this year, it believes 85 have shut down.

Dozens of others, however, continue to operate as the industry, users and frustrated officials wait for the federal government to announce its plan for legalizing marijuana. In the interim, police continue to lay criminal charges. Since the mass raid, search warrants have been executed against some two dozen dispensaries, as recently as this week, according to Toronto police.

“One gets shut down, another one jumps in,” said Neev Tapeiro, the owner of Cannabis as Living Medicine, which has been in operation for 20 years as a dispensary and a compassion club for medical users. His business was one of the ones raided by police in Project Claudia and while Mr. Tapeiro said he can’t say much about his criminal case, he is frustrated with what happened. “The police did not distinguish between medical and recreational dispensaries,” he said. (Both are illegal, though medical dispensaries want proof that clients have Health Canada’s approval.)

While there is no grey area in the current criminal law or city regulations, what remains unclear is why police allow some to remain open while others are subject to enforcement. Toronto police spokeswoman Meaghan Gray said the service takes a number of factors into consideration before moving ahead with a search warrant, including complaints from the community and proximity to schools and parks where children play.

“The Service also has to balance the operational requirements of any given division,” Ms. Gray wrote in an e-mail. “With other criminal factors to consider, the Service is unable to focus all resources on marijuana storefronts alone… the law is not grey; these storefronts are operating illegally. We will continue to enforce the law as it stands to the best of our abilities.”

The police force’s approach has raised the ire of operators, who range from small retail operations that have been caught selling marijuana to any customer, to more formal clinics that require medical documentation.

“It is completely arbitrary,” Toronto defence lawyer Paul Lewin said. “Whether you will be targeted seems to depend on the view of the police division in that part of the city. It is also making the ones that get to stay open super rich,” he said.

Mr. Lewin, whose law firm website states that he specializes in “cannabis law,” questions whether the crackdown on dispensaries is about public safety and health concerns, or an attempt to reduce competition before the federal government determines who can sell marijuana through their licensed outlets . “We are now using the criminal law power to sort out the marketplace,” Mr. Lewin said.

The Public Prosecution Service of Canada said that charges have been withdrawn against two businesses charged in Project Claudia. No other cases among the 43 have been resolved or gone to trial. Federal Crown attorneys seem to have a “low level of enthusiasm” in dealing with these cases, Mr. Lewin said.

That view is echoed by fellow defence lawyer Benjamin Goldman. “This is a mess that has been dropped in the laps of the federal Crown’s office downtown. Crown attorneys, on the ground level and judges are asking what we are doing with all these cases,” said Mr. Goldman. “This could use up a huge amount of court resources.”

In an e-mail, the spokesperson for the Public Prosecution Service of Canada, Nathalie Houle, said, “The PPSC prosecutes the laws that are presently in place. There is a large number of cases and they are proceeding through the system.”

If the criminal side of Project Claudia is moving very slowly, that is not the case when it comes to enforcement by the city.

“This is against the law. The law is very clear,” said Tracey Cook, executive director of Municipal Licensing and Standards. “When there is a different regulatory regime, we will enforce that regime.”

City prosecutors are active in provincial court, seeking fines and shutting down orders against dispensaries. “We are also trying to educate property owners,” said Ms. Cook. One of the city’s powers includes the ability to seek restrictions on a landlord found in violation of certain bylaws from being able to lease to any business for two years. “It is an effective tool,” she said.

Toronto Mayor John Tory said he stands by his strong support for Toronto’s campaign of raids by police and city bylaw officers. “We are in a limbo period,” Mr. Tory said, repeating pleas for “clarification” from Ottawa on how marijuana legalization is going to proceed.

But he made no apologies for what police or city bylaw staff have been doing in the meantime - busting illegal operations about which he said the city receives many complaints.

“I think that law says what the law says,” Mr. Tory said. “And I think most of these [dispensaries] in my view, are illegal, and they are certainly a continuing concern of residents and retailers in the city of Toronto.”

Toronto city council opted not to regulate the industry, in contrast to the city of Vancouver, which adopted a new bylaw last year that permits licensing businesses that advocate for medical marijuana use. The bylaw does not regulate the sale of marijuana, though, since that is outside the powers of the city. A spokesman for the city said that, to date, a total of eight medical marijuana retailers or compassion clubs have been awarded business licenses.

Toronto’s enforcement approach earns praises from former politician George Smitherman, who is involved in two medical marijuana companies seeking production approval from Health Canada. He said dispensaries are misleading the public into believing they are serving people with legitimate medical needs. Only producers approved by Health Canada can distribute to customers with medical authorization, although not through a retail location. “This is a black market industry operating as a retail establishment,” Mr. Smitherman, a former provincial cabinet minister and mayoral candidate, said.

Not everyone on the medical marijuana side of the industry believes that enforcement against dispensaries is the proper course of action at this time. John Fowler, president of Toronto-based Supreme Pharmaceuticals, which is a Health Canada-approved producer, said it is time to look at the bigger picture. “Prohibition does not work. The problem is this, you are not going to shut dispensaries down by laying charges against the kids who work behind the counter,” said Mr. Fowler. “If your goal is to get rid of the unlicensed seller, you have to move much more quickly to provide a regulated framework,” he said.

Mr. Tapeiro is also calling for the government of Justin Trudeau to speed up the pace of implementing its campaign promise. “Now we are hearing that slow and steady is the route. It is very frustrating,” said Mr. Tapeiro, who makes reference to the LeDain Royal Commission, which recommended in 1972 that possession of marijuana be legal in Canada. “That was under Pierre Trudeau,” he said with a sigh.