Thursday, 3 September 2015

Why is the City of Vancouver regulating an illegal activity?


It occurs to me that I should post on this (somewhat neglected) blog a couple of other pieces I have written over the past few months which I have had the good fortune of seeing published elsewhere.  So in that spirit, here is a piece the Globe and Mail published on June 14, 2015, as the City of Vancouver was deciding whether or not to regulate potshops.  In the months since they passed their bylaw it's become even more apparent that the main problem here is a federal government (now of course in an election campaign) that simply turns away from the obvious need to take a completely new, health-protection based approach to marijuana.  But in the absence of a sane federal legislative regime, and given the proliferation of marijuana dispensaries, I still think the City made the right decision when it decided to impose its own regulations. Some of the details in the City's bylaw may be debatable, but this article dealt with the basic question of principle posed at the end of its first paragraph.


As the City of Vancouver consults with the public on its proposal to license marijuana retailers, I expect many people are not asking themselves about the details – for example, should pot shops be allowed at transit malls – but about the bigger question: What is the city doing regulating an illegal activity?

Yes, storefront marijuana sales are still against the law. Marijuana can be distributed legally for medical purposes, but several conditions must be met. Among them, the patient needs a doctor’s prescription, and the purchase must be from one of a very small number of producers licensed by Health Canada.

If these and other conditions are not satisfied, then possession and sale of cannabis is a criminal offence, and possession of as few as six marijuana plants carries the risk of prosecution and up to 14 years in prison.

Or not. Because in Vancouver, the police have made it clear they will not enforce medical marijuana laws against store operators except when there are other public order considerations.

The result is a proliferation of medical marijuana stores. Almost 100 of them in Vancouver, and the number is growing.

The law is in a state of flux. More precisely, the courts have been issuing decisions that overturn parts of the federal regulatory framework. Just last week, the Supreme Court of Canada ruled there was no rational basis for the Health Canada regulation that permits medical marijuana to be sold for smoking, but not for eating.

But please do not blame the courts for this confusion. Blame, rather, a federal government whose approach to this issue is driven by politics, not evidence or policy.

Some may still believe the best response to the reality that is marijuana in our society is to criminalize it, but it is a shrinking minority. A large and growing consensus of Canadians understands that cannabis prohibition has failed. It has not reduced use, and it has instead encouraged the spread of organized crime gangs whose members fight over market share.

Evidence is growing of the health effects of marijuana use, evidence of the risk of harm its use presents in some circumstances, particularly to the young. And there is considerable evidence of the benefits it offers in other circumstances, particularly to chronic-pain sufferers.

Unfortunately, federal cabinet ministers choose to call for prosecution, rather than commit themselves to do the desperately needed work of developing a regulatory framework informed by good health science.

When the law as written fails, as it clearly has here, when it lacks all moral authority, and creates more harm than benefit, rational policy makers should change the law.

What is needed is a clean slate, where all levels of government work together to plan a post-prohibition regime, where the focus is on developing effective public-health regulation, with clear and sensible rules, and funding from taxation to support research and education.

In an election year, no one should expect a change in policy on the part of the federal government. But that does not do much to help the City of Vancouver as it watches the number of pot shops grow every day.

Some wonder why the police are not prosecuting. Attempts to enforce laws that do not command public respect are more apt to bring the administration of justice into disrepute. On this issue, Vancouver’s police department is reading public sentiment correctly.

As a lawyer, I am troubled by the idea that the city would choose to regulate an activity – the retail sale of marijuana – that is unlawful. The city’s job, one might think, should be to enforce federal law, no matter how wrong it appears, rather than legislate to undermine it. It is always unsettling when our politicians appear to be at cross-purposes.

But the better course is for Vancouver to do something, rather than stand by and allow a regulatory vacuum to grow.

It is the business of city governments to enact by-laws to protect our safety, create livable neighbourhoods, limit hours and locations of business, and restrict unhealthy activities such as public smoking.

There is a need for good city-made rules to regulate pot shops, too. Not for the purpose of thumbing our noses at an out-of-touch federal government or usurping its authority, but for the simpler, yet profoundly important purpose of doing the best we can to protect the public until Ottawa comes to its senses.

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