Smoky Ethical Waters Around Marijuana Dispensaries
If you take a stroll pretty much anywhere in downtown Toronto these days, you’re likely to walk into one of the dozens of marijuana dispensaries that have popped up everywhere in the city. But just as quickly as they arrived, they are being shut down too.
On Thursday Toronto Police conducted a sting dubbed “Project Claudia,” with search warrants executed for 43 different locations, seizing 270 kg of products. That’s fine, these dispensaries are still illegal, and are not part of the process for distributing medically required marijuana use.
Project Claudia wasn’t just about shutting these dispensaries down. The police arrested 91 people, laying 71 criminal charges and 186 charges under the Controlled Drugs and Substances Act. A bit of overkill, some people would say, when considering the government has announced an intention to legalize marijuana by next May 2017. Across Canada, police services have demonstrated less enthusiasm for enforcing marijuana laws.
Others find the actions entirely justifiable. Rosie Di Manno stated in an editorial, Pot Raids Aren’t Political, Just a Matter of the Law,
Until Ottawa legalizes pot, that’s what you are, folks – traffickers, no different from the gang-banger peddling crack in the park. Chasing the money.
Blow that out your self-righteous bong.
Except the Code is filled with provisions which are rarely enforced and entirely antiquated, including witchcraft, crime comics, oyster theft, duels, water skiing after dark, and immoral theatrical performances. Until actively repealed, if ever, they are technically still on the books.
At the Liberal Biennial in Winnipeg this weekend, one anonymous protest told me,
Stop Project Claudia. Stop arresting innocent workers, and stop wasting tax dollars on this.
Unless the dispensary is one of those which has other illicit substances, for example the small amount of cocaine found during the raid, I’m inclined to agree. These aren’t necessarily gang bangers and dangerous criminals.
Toronto Police have noted that over half of these dispensaries are located close to schools, which might also be another reason for shutting them down. If the charges related to sale of marijuana to minors, I’d be far more inclined to support pressing charges.
In the meantime though, we’re clogging our courts with more cases that really doesn’t align with our country’s values and where our laws are going to be in the very near future.
An anonymous protestor at the 2016 Liberal Biennial in Winnipeg.
Omar – The finger you are pointing should be directed at the Prime Minister who has yet to make good on his election promise and appears to be no where close to doing so……Where are the ethics of politicians who are happy to gain votes on a poorly thought-out announcement, but less able to deliver? The wild west weed dispensary show we have in Toronto is a direct result of Mr Trudeau. These dispensaries didn’t exist 12 months ago.
Mitch,
Here’s a very long list of promises the current government has kept, despite their short time in office:
The announcement on May 20, 2016 made it clear that they will in fact make true on this promise, but are taking a year to figure out how to properly implement it. I think that’s a good thing.
In the meantime, we don’t need any reefer madness where it’s not justified.
I very much look forward to arguing about all of this on our next blab, but if I could offer one clarification: Operation Impact remains an active, ongoing mission of the Canadian Armed Forces (http://www.forces.gc.ca/en/operations-abroad-current/op-impact.page) – the Trudeau government ended (effective February 16, 2016) the airstrike component of OI, but other aspects of the mission remain ongoing.
What’s wrong with those criminal code provisions? Waterskiing after dark is a terrible idea. Dueling should be illegal. And “Witchcraft” has actually been used a couple of times in the past decade against con artists. I’ll grant you crime comics.
The fact that the Liberals may or may not decriminalize pot at some point in the future is really neither here nor there (though, surely by now one would know better than to make book on any politician’s promise, Liberal or otherwise). Even if they do, there’s no reason to expect that people will be able to sell it willy-nilly in an unregulated manner. After all, the Liberals only promised to decriminalize possession, not trafficking. The pot “dispensaries” are, by definition, drug traffickers.
Ontario has only now allowed the sale of beer in a handful of stores in highly regulated conditions (often egregiously so – can someone explain why the teenage cashier can’t run my cans of beer through the cash register?) – most booze must be sold through the Beer Store or the LCBO (and the provincial Liberal government has expressed a preference for having pot sales through the LCBO). Cigarette sales are highly regulated. Why would pot, if and when it is decriminalized, be any different? Try selling pot or booze without a license in this province, and guess what happens. Canada has established its own regulated supply system for medical marijuana. The likelihood of the activities of these “dispensaries” (read, drug traffickers) ever being legal is minimal. So it’s hard to have too much sympathy for people who are engaged in activity that is not only illegal now, but likely to remain illegal for many years into the future.
I’m also not sure your examples of “rarely enforced and entirely antiquated” provisions of the criminal code are entirely compelling. The provision against oyster theft is probably important provisions on the east coast, and surely it makes sense to criminalize water skiing at night, given how inherently dangerous such an activity is, as for dueling, well we don’t want people to do it. That those provisions may be rarely enforced is probably a testament to their success – people don’t steal oysters, water ski at night or duel because they’re illegal.
As stated, I’m not entirely opposed to closing these shops, especially where notice is provided. The problem comes in with the imposition of criminal charges.
Toronto’s mayor has said,
There are many provisions under the Code which are never enforced. Police officers actually yield enormous discretion, as does the Crown.
If this was done to send a message it has accomplished that goal, but I don’t think it’s the right message to send.
Omar,
There may well be provisions of our criminal laws which are seldom enforced, but one can hardly claim that to be true with respect to the various criminal provisions against drug trafficking (as opposed to mere possession) – which have been widely and routinely enforced for decades and which no political party has, in any seriousness, proposed eliminated. In 2013 (the latest year for which I’ve seen statistics) there were over 13,000 convictions for trafficking and distributing pot. A quick , and not particularly thorough, look through Canlii shows that there have been dozens of convictions for trafficking in pot in 2016 alone, which suggests that perhaps pot trafficking has not yet fallen into the same category as falsely practicing witchcraft.
More to the point, given the creation of a legal, regulated supply chain for marijuana, it seems pretty clear that parliament has sent a message that the sale of pot outside of that chain is contrary to the public interest. Against that background, it would be highly problematic for the police and crown to openly flout the clear intent of Parliament.
Again, pro-pot proponents like to compare pot to alcohol or tobbacco, fair enough, but under the Excise Act, 2001 anyone who makes illegal sales of tobacco and alcohol is subject to possible imprisonment, and you’d better believe that if people were openly selling cigarettes and booze without a license, you can be sure they would be charged and prosecuted to the fullest extent of the law (indeed provincial authorities are quite aggressive in prosecuting such persons). So why would anyone expect otherwise with respect to pot?
Bob,
I’m not questioning that these offences haven’t been prosecuted in the past, I’m questioning its utility in the immediate future.
It’s no surprise that many of these enterprises in Toronto actually originate from Vancouver, which has had a far more tolerant policy towards dispensaries even prior to the current government’s recent announcement.
Even there though, the City has recently cracked down on some dispensaries, shutting them down and issuing tickets. Notably, no criminal charges were reported.
Police there have even fended off complains from residents who state that the police are not enforcing the laws, i.e. citizens asking for dispensaries to be closed.
Deputy Chief Doug LePard stated,
LePard specifically noted the need to focus police resources on more serious drug offences, and on those dispensaries that pose a public safety risk.
The rationale for this approach is detailed in a September 2015 report by the Vancouver Police Department,
The report is quite detailed, created in response to the complaint against local police, and helps illustrate the competing social, political and legal considerations.
The issue is far more nuanced than just “it’s the law.” That type of rhetoric may work for politicians, but it shouldn’t fly with either lawyers or law enforcement officers.
The BC experience raise the obvious problem that it’s the police – not the legislature – which is making criminal law policy (as opposed to exercising their discretion on a case-by-case basis). I can’t speak for you, but I get damned nervous when the police (or the Crown more generally) start deciding which laws they’re going to enforce and which laws they aren’t – that fundamentally undermines the rule of law and is an affront to Canada’s status as a parliamentary democracy.
Saying “it’s the law” isn’t rhetoric, it’s a statement of the fact that in Canada laws are made by Parliament, not by the police (or, more broadly, the Crown), and Parliament should be able to expect that it’s laws will be enforced in good faith – in a manner consistent with Parliament’s intent – by provincial and municipal authorities.
To be sure, the police have to make priorities in how they devote their resources – Vancouver has other problems, so perhaps the VPD’s decision makes sense in their context – they’ve got bigger fish to fry. But given that the police have that discretion, one can hardly complain if they choose to exercise it to prosecute people who are flagrantly breaking the law with a view to lining their own pockets. You may disagree with the proposition that this is a major priority, but the TPS sees otherwise, and I note that this position is similar to the approach they take to prosecuting people who illegally sells products like cigarettes and alcohol. It would be perverse if we were to continue prosecuting people who illegally sell cigarettes or booze while turning a blind eye to pot traffickers.
As for whether these people should go to jail, again, people can make the case that they shouldn’t – though that seems odd given the criminalization of people who illegally sell comparable products like smokes and booze – but that’s a decision that has to be made by Parliament.
It would also be perverse to continue prosecuting people who illegally sell marijuana in the back alleys, which the police continue to do every day, while allowing people to illegally sell it with impunity from storefronts.
In fact, the practice of prosecuting only street trafficking while letting storefront trafficking go on unhindered probably has a significant race and class dimension to it.
Bob,
But it’s the same law in Vancouver as it is in Toronto, at least as it relates to criminal charges.
You might be nervous about that fact, but the reality is that there are plenty of laws that are never enforced, and we’d probably not want them to be. Can you imagine if every case of jaywalking was enforced in Toronto?
This is a by-law issue, not a criminal law issue. Toronto also has bigger problems. Much, much bigger problems than this, and our courts are even more bogged down than those in Vancouver. This political move actually hurts our justice system.
But the police are not exercising discretion in whether or not to target marijuana traffickers. They are exercising it in deciding to only target traffickers in Scarborough or north Etobicoke, and not Kensington or Bloordale.
Omar,
That’s just wrong. It is not a by-law issue. When Parliament repeals the prohibition against drug trafficking (at least with respect to pot) it may become a by-law issue – though, given that the federal government and the provinces continue to heavily regulate the sale of other substances such as cigarettes and alcohol, and if the sale of pot (other than for medicinal purposes) is ever legalized we should expect it to be heavily taxes, the notion that the sale of pot will ever only become a by-law issue seems far-fetched – but until it does it’s simply wrong to say this is a by-law issue.
You may think it SHOULD only be a by-law issue – fair enough, if unrealistic – but until the federal government changes the law on the point, it isn’t just a by-law issue. You’re making a political argument about what the law SHOULD be, but if you want to make that change, you need to persuade Parliament to change the law, not complain that the police and crown actually enforce the laws of the land.
The analogy is clear. I think people should be able to buy beer and wine in corner stores – so do a great many Ontarians. God knows, Ontario is the last bastion in the world of protestant probity that forbids people from doing so – and frankly countries with healthier attitudes towards alcohol have fewer drinking problems. But if I start selling beer from my corner convenience store, I can, and should, expect to be prosecuted for doing so. Why is pot different?
Bob,
The Federal law in Vancouver is the same as it is in Toronto.
Yes, are you suggesting that it isn’t illegal to sell pot in Vancouver? Section 5 of the Controlled Substances Act says differently – do any of these dispensaries have licenses issued for the purposes of the narcotic control regulations?
If the argument is that, well, the Vancouver police don’t enforce the law, I don’t see where that gets you, they don’t make the law, Parliament does. Indeed, this demonstrates precisely why relying on police discretion not to enforce otherwise valid criminal laws – rather than repealing the laws – is a dangerous proposition. The police can change their minds, at least when Parliament does it, you have due notice.
The people who own these shops were selling marijuana unlawfully. They may believe that what they are doing will be legal in the future. But it isn’t now.
How they could think they would not be investigated, charged and prosecuted is just mind-blowing. What arrogance. Even when it is legal, the commercial distribution of marijuana will apparently not an unregulated affair. Wynne has said so.
These fools just tempted fate and thought they’d get away with what is, and remains, drug-dealing. They were wrong. The Courts can address appropriate penalties. But the TPS acted properly and lawfully.
I also note that drug prosecutions are handled by federal prosecutors. Those, in turn, are subject to the orders of the Federal Minister of Justice. If she wants, she could direct all such prosecutions are halted or stayed. Of course, she hasn’t, which I take to mean she continues to give her tacit approval (at least) to the enforcement of the law as it remains.
Bob,
I’ll direct you again to the VPD report. I think it really has already addressed all the points you continue to raise:
Does it say that section 5 of the Narcotic control Act has been repealed? If not, the sale of Marijuana in Vancouver remains illegal.
I’m also not sure how the City’s decision to create a regulatory framework is at all relevant (certainly it’s not relevant in the context of Toronto which has not enacted such a framework – which undermines the force of your argument on its own terms). It’s been a while since first year constitutional law, but the regulation of narcotics is squarely within the federal sphere and to the extent of any conflict between the municipalities exercise of delegated provincial powers and the federal exercise of its criminal law powers, the latter takes precedence. Just because the city of Vancouver doesn’t thinking that shutting down dispensaries is a priority is neither here nor there, it doesn’t make criminal law.
It certainly is open to police services to prioritize their resources – to focus on what they consider to be more pressing concerns. It’s equally open to other police services to come to different conclusions in response to public concerns – just because the VPD does something doesn’t mean that other police services should follow it. And certainly, people who knowingly broke well established laws aren’t well placed to complain about the unfairness of being subjected to the predictable consequences of doing so.
Coming back to your original post, I think the problem with your position is your assumption that the TPD’s actions are inconsistent with this countries values. I think the notion that Canadian values support a free-for-all for the sale of pot is untenable given (i) the recently enacted regulatory regime for the sale of medicinal marijuana and (ii) the existing regulatory regimes for the sale of alcohol and tobacco (which would, if pot were legalized, presumably be extended to pot), but you and I can disagree about that. But in any event, this country’s values are best reflected in the laws enacted by our parliamentarians – if those laws no longer reflect our values, they should be changed (and, if those laws truly no longer reflect our values, it should be easy to make that change). But until they do, it’s reasonable to expect the police to uphold the values of Canadians reflected in the laws we’ve enacted.
Great article Omar – there is obviously a lot of interest in this issue and I think it’s fair to say that we’re currently in a transition towards a form of legalization of marijuana. As with any transition, there will be bumps along the road. Our team at OMQ put together a little infographic regarding how other jurisdictions have dealt with the matter – hopefully, some find it interesting. Regarding the situation in Toronto – it’s easy to say in hindsight that it would have been better if the city could have gotten in front of this at the municipal level. Maybe there’s still a way for them to do this if they outline what they deem is “acceptable” and then put the resources into enforcing the city’s minimum requirements?
http://omqlaw.ca/toronto-lawyer-for-marijuana-possession-or-trafficking-charges/