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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