Despite the vast increase in medical marihuana dispensaries in Vancouver and the Lower Mainland, it is clear that under the current legal regime medical marihuana dispensaries are illegal. While the state of the law with respect to marihuana is in uncertain and expected to change, these changes are not yet known nor do we know when they will be implemented. As such, until the federal government enacts these changes, local governments may enforce their bylaws with respect to medical marihuana dispensaries as they are not currently allowed within the criminal law.
The case of Delta (Corporation) v. WeeMedical Dispensary Society, 2016 BCSC 1566 (in Chambers) involved a dispute between the Corporation of Delta ("Delta") and WeeMedical Dispensary Society ("WeeMedical") a non-profit society that provided various water products and medical marihuana. WeeMedical began operating a retail medical marihuana dispensary in Delta and had applied for a business license but was refused. On reconsideration, Delta's council upheld the refusal. WeeMedical was also allegedly operating in contravention of the applicable zoning bylaw under which operating a retail medical dispensary was not a permitted use.
Delta brought a petition against WeeMedical seeking a permanent statutory injunction pursuant to s. 274 of the Community Charter, S.B.C. 2003, c. 26 (the "Charter"). Section 274 allows local government to bring enforcement proceedings to prevent or restrain the contravention of a bylaw. Delta sought an order to enjoin and restrain WeeMedical from operating on the basis that: (a) WeeMedical lacked a business license; and (b) the operation contravened zoning bylaws.
The Court found that it was clear and not contested that WeeMedical was not operating with a business license and that the Business Licence Bylaw of Delta requires the licence holder to carry on business in a lawful manner. Ms. Liu conceded that the operation of a medical marihuana dispensary was not allowed within the criminal law and that she was operating without a business license. With respect to the alleged zoning bylaw contravention, Ms. Liu again conceded that a retail medical marihuana dispensary was not a permitted use under the zoning. Consequently, the Court found that it had been proven quite clearly on the evidence that WeeMedical was operating in violation of the zoning bylaw and the bylaw requiring a business license to be held by any business.
Of note in the decision are the comments of the Court with respect to statutory injunctions. On this point, the Court noted that once the breach of a bylaw has been proven, a court has limited discretion to deny a statutory injunction to enforce the bylaw. Further, there were no extraordinary circumstances that would provide some basis or justification to deny granting the statutory injunction sought by Delta.
The Court described the state of the federal marihuana laws as being "in flux" and noted that different municipalities have dealt with matters of medical marihuana dispensaries differently. For example, in Vancouver, the city regulates the operations rather than prohibits them, and in Kimberley and Port Alberni, councils passed zoning bylaws to address the operation of such businesses. While the Court commented that it is well-known that the federal government has indicated that it intends to take a different approach to marihuana generally, if not medical marihuana, it is unknown what any new legal regime may look like in the future. Until such changes are made, the Court can only address the situation in terms of what the current law is and enforce it as it is currently in place. In the circumstances, the Court ordered that a permanent statutory injunction was appropriate.
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