by Danny Zanbilowicz
The federal government has promised that it will soon legalize marijuana in Canada.
The current time line is for legislation to be in place next summer. In the meantime, the transition to legalization is proving confusing, murky, and frustrating to legislators, citizens, and cannabis activists. The Village of Cumberland’s recent exercise is a case in point.
On Monday March 27 Village council members voted three to two to not accept any of the four submitted applications to run a marijuana dispensary in downtown Cumberland, ending, for now, months of work on the part of the applicants, as well as a significant effort on the part of Village staff.
The reason given by two members was that at present, dispensaries – medical or otherwise, are illegal in Canada. A third councillor supported their position.
Councillors knew from the beginning of the process, which began a year ago, that dispensaries are illegal, and yet everyone went through the exercise of considering allowing them in Cumberland prior to their legalization.
There are plenty of precedents for doing this. In mid February a BC supreme court judge ruled that in spite of federal restrictions, municipalities had the right to regulate cannabis use in their own jurisdictions- they could permit or deny dispensaries, as they wished.
The cities of Vancouver and Victoria for example, have permitted dozens of them.
Some observers were surprised at the vote in Cumberland. Others were deeply disappointed, expecting that one or two among the applicants would be chosen to open a cannabis outlet soon, somewhere in the downtown of the village.
So what happened?
There is a legal medical marijuana system in Canada, in which people can obtain authorization from their doctors to acquire cannabis, for medical conditions. They can then apply for a separate permit to grow their own small amount, or they can find a “designated grower”. In either case, they must acquire seeds from authorized commercial growers.
Someone with a permit can also have cannabis delivered to them directly from a commercial grower.
In addition, people with permits can go to one of the dispensaries that have sprung up across the country to buy cannabis. These outlets are illegal, but tolerated in many cities.
It is well known that some medical marijuana dispensaries have flexible rules, which allow for virtually anyone to come in off the street, claim a medical condition with scant proof, and receive authorization to purchase cannabis.
The vote in Cumberland was to permit (or not) a “medical marijuana dispensary”. How did the process start?
Last year, inquiries were made to the Village about opening up a dispensary. Council members felt it would be a good idea to have a policy in place, especially for when legalization would occur.
From the Village website:
“Over the summer and fall of 2016, staff will be developing a policy for Council’s consideration to set out what conditions under which Council would consider permitting medical marijuana dispensaries. This would include land use conditions, such as distance to a public school, and business license regulations, such as security, signage, hours of business, etc.”
So council was preparing a list of conditions under which a dispensary could be permitted, should council so choose, even though such a thing is illegal according to Canadian law.
A report prepared by Village staff from June 27, 2016, sets the process in motion. It recommends:
“THAT Council direct staff to conduct a public engagement strategy on the possibility of considering medical marihuana dispensaries within the Village of Cumberland under the terms and conditions contained in this report, as follows:
a) Background information and staff reports posted on website;
b) Survey online and paper copies available: released July 4th, deadline for input July 29th;
c) Handbill/mailout to all owners in the VCMU-1 zone informing of survey & open house opportunities to provide input;
d) Public open house: one evening July 19-21 week, 5-7pm.”
On September 6, 2016, Zoning Bylaw No. 1027, 2016 came into effect, which prohibited marijuana dispensaries in Cumberland. With that control in place, the Village then introduced amendments which would allow dispensaries, if conditions were met. The process that followed defined what those conditions would be.
From the Village website- “These regulations paved the way for the Village to consider licensing medical marijuana dispensaries.”
In November, Bylaw 1037 stipulated that: “Every business shall comply with all federal, provincial, and municipal laws, bylaws and regulations, except for Medical Marijuana Dispensary in relation to federal laws and regulations only.”
In other words, a business license could be issued to a medical marijuana dispensary, even though it was contrary to federal law.
Bylaw 1040 provides details about how someone can qualify to apply for a business
license for a dispensary, including details such as signage, air filtration, security measures, and what fees need to be paid.
To further enable applications, council approved a new Temporary User Permit (TUP), which would not require a zoning bylaw amendment, and approve a non-conforming use for a short specified period of time.
In a “Medical Marijuana Dispensaries – Policy Report:”
“Next Steps: Staff presents the policy for approval.
Following approval of the policy and bylaws the Village will accept complete applications for Medical Marijuana Dispensaries. Applications for both the Temporary Use Permit (TUP) and the Business License should be submitted as a package but will require approval of the TUP to be finalized by Council prior to approval of a business license. Council has approved that the application deadline is January 15, 2017 and that the applications will be reviewed together.
With legislation in place, council accepted applications, and accelerated the public consultation process.
The applications were comprehensive, each one costing approximately $2,300. A public survey was sent out, and each applicant held an open meeting to discuss their concepts for a dispensary.
The survey indicated that 75.3% of respondents were in favour of a medical marijuana dispensary in the village, while 20.7% were opposed.
The issue of greatest concern to residents was security- 35.37%. Illegality was not even offered as a choice, although some mentioned it in their written comments.
At the public meetings, which occurred in February of this year, comments were generally positive, sometimes overwhelmingly so.
Legality was rarely raised as an issue, if at all. Nevertheless, it was at this stage that
things started changing.
It became clear at the open houses that some of the applicants were not following the strict medical marijuana model- they were prepared to sell the product to anyone who came in the door.
For many of those who are in the business of purveying it, marijuana is an irreplaceable therapeutic substance, whether it comes with a prescription or not. But not everyone feels that way. This is conjecture- there is no clear indication if the prospect of easier accessibility
is what turned people off- but there is no question that as citizens became more aware of the proposals, some turned against the whole idea.
Illegality became the rallying cry.
The vote was a mere month away. Villagers began contacting council members, and around two dozen letters were submitted in opposition to approval.
An example of the opinions expressed: “Council doesn’t have the right to decide which laws are to be broken, it is a legal body. Council should not be involved in the issue at all.”
During the March 27 vote, councillors Jesse Ketler and Sean Sullivan were in favour of dispensaries, while councillors Gwyn Sproule and Mayor Leslie Baird expressed reservations, based on illegality. Roger Kishi wavered, but in the end, he joined Sproule and Baird in not accepting any of the applications.
At the time,. Kishi opposed because the applicant’s site was too close to a library, where young people gather. But he as said subsequently: “I support the tabling of applications until the change in federal legislation.”
Many of those involved in this process including councillors and Village staff, mistakenly believed that medical marijuana dispensaries were legal in Canada. If they had understood the law from the beginning,would the Village have gone ahead with the process?
The problem with the vote is that the applicants were rejected not because they failed to comply with the long list of conditions required by the Village, but because of illegality- which should not have been a consideration. Illegality was known from the beginning, it was built in- the entire process was designed to allow dispensaries to open up though they were considered illegal according to federal law.
Isn’t that the point of Bylaw 1037? Also, illegality is accepted as a condition for dispensaries across the country, in this transitional time, especially to make cannabis available to those who need it.
For those who are on the front lines of marijuana as a medicine, the situation could not be more urgent.
For Ernie Yacub for example, who was a member of one of the groups applying, there are people right now who desperately need the therapeutic effects which only marijuana seems to provide. Marijuana is widely known to help cancer patients control nausea and increase appetite. Yacub believes the benefits are only beginning to be understood- as an illegal substance, marijuana is woefully under-researched. But the recently discovered cannabinoid system in the human body may be essential in regulating many vital aspects of health.
Getting a pure, stable reasonably priced supply of marijuana on the black market is a risky unpleasant dangerous activity that people who need it should not have to go through.
Yacub adds- “There are people at the end of life zombied out on pharmaceuticals, because doctors are ignorant, or people are afraid to talk to doctors about it. They heard cannabis can be helpful, they are doing chemo and don’t know how or where to get it. There are ordinary people dealing with pain, anxiety, injuries, PTSD, Chrohn’s, all of whom found cannabis better than pharmaceuticals. I jumped on this opportunity to make these medicines available, to have a stamp of approval. My interest is to inform and educate so people can take care of their own health and well-being. I am dealing with a tiny sliver of people in need. There are thousands in the valley. This vote was about law and order versus compassion.” (For more information go to https://cannabisforhealth.ca)
Those who voted against are content with their positions.
Roger Kishi says that there was never in his mind the intention to allow for dispensaries, until they are made legal, but to put in place the process for when they become legal: “My feeling now is we are in a good position, the process is in place. The idea was- “Council may consider”- there was no guarantee. There was consensus from residents that the proposals needed to be paused. Council has put the process on pause.”
Longtime village councillor Gwyn Sproule says- “I didn’t realize it was illegal. I thought we should have some regulation in place. But why would a legal body such as the Village of Cumberland collude to make something against the laws of the land? I felt bad about the wasted time. But I was scratching my head- how did we get to be doing something like this? My job is to uphold the laws of the land. I feel we did the right thing.”
Sundance Topham, CAO of the Village says- “It seems that the priority of the Village- some councillors, and staff, was to put in place a mechanism which would deal with applications for dispensaries, once legalization occurred, rather than to permit actual dispensaries from opening, sooner than later.”