By James Peters

Kamloops lawyer eager to tell council its proposed dispensary bylaw is unconstitutional

Dec 19, 2017 | 9:23 AM

KAMLOOPS — A local lawyer says he is eager to speak to Kamloops council at a public hearing surrounding a new bylaw amendment governing marijuana dispensaries.

The public hearing will be held Tuesday evening at the Sandman Centre’s Valley First Lounge.

The proposed bylaw amendment would increase fines for operating without a business license from $200-per-day to $10,000-per day.

Because commercial marijuana sale is illegal, the City of Kamloops will not issue business licenses to the eight local dispensaries.

Shawn Buckley says he believes the proposed bylaw goes against the Canadian constitution.

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“When you look at the bylaw, in the preamble it’s like, ‘This is illegal, this is illegal, this is illegal.’ I think the bylaw is illegal,” Buckley said. “I think that this bylaw is unconstitutional because we have the Supreme Court of Canada saying people have a constitutional right to access these products, and yet the federal government hasn’t structured our Controlled Drugs and Substances Act to permit it.”

Buckley represents the Canadian Safe Cannabis Society on Tranquille Road which, at eight years of operation, is Kamloops’ oldest dispensary.

He says the $10,000 daily fine being proposed would quickly close any small business, including a pot shop.

“So, after eight years of being in business and the city leaving them alone, when legalization is in sight – we’re going to see it in July – the city is going to move to close a dispensary like that down? It’s just outlandish,” said Buckley.

“Who does $10,000 of business a day? That’s the threat. This bylaw amendment, although it’s targeted at dispensaries, will affect every single business. So if you’re charged and you go to court, instead of facing a $200 fine, it can be up to $10,000 a day.”

City of Kamloops Chief Administrative Officer David Trawin says the bylaw amendment is not intended to shut businesses down, but to control where they can be set up, much like the city does for liquor license-holders.

“What the intent is of the changes isn’t so much to go after the dispensaries as they are now. We’ve actually been dealing with some of the dispensaries (that have generated) complaints over the last six months, making sure there are not issues,” said Trawin. “What the intent of the changes is, is to allow council, when (marijuana) becomes legal, to actually control the location of those dispensaries.”

Trawin says if the city doesn’t deal with the dispensaries now, it may be powerless once marijuana is legalized.

“We have had legal opinions from more than one lawyer: if we officially allow these dispensaries to stay in place, or don’t keep on letting them know they are in an illegal location, that they are basically against the law, that they don’t have business licenses and they need to follow city regulations, that they could be considered grandfathered in those locations when they become legalized,” Trawin said.

Buckley adds another aspect of the bylaw amendment would penalize landlords of businesses that operate without licenses.

“The city is quite clear: the reason it is doing this is to force commercial landlords to become the city’s policemen, or else they’re facing up to $10,000-a-day fines for something their tenants are doing,” Buckley said. “This is very concerning. If I was a commercial landlord, I would be quite concerned about this, because basically the city is saying, ‘You’re liable for your tenant’s actions.’

“It’s just the city trying to solve a specific problem, and bringing in a hammer that’s going to affect every single commercial landlord regardless of what their tenant is doing.”

Buckley notes there are many people with medical marijuana prescriptions who could be left out in the cold if the city’s pot shops are forced to close.

“There are so many people who absolutely depend on being able to access medical cannabis in the forms these dispensaries sell it in – and they’re the only place that you can. I’m quite concerned that we could basically be causing a medical catastrophe and having some people really suffer.”

Trawin contends that’s an overreaction.

“This isn’t about medical marijuana. People could get medical marijuana in the past, they can get it right now, and they’ll be able to get it in the future through government dispensaries and mail order. So we’re not taking away anyone’s ability, we feel this isn’t about taking away anyone’s ability to have medical marijuana through the proper channels.”