Canada’s new drug laws deliver a blow to dispensary operators

Kirk Tousaw is a criminal defense lawyer. In his practice, he represents several medical marijuana dispensaries and the growers who supply them. He is seen, by many, as the region’s preeminent marijuana defense attorney. Last week, he gave a talk at the Vapor Lounge on West Hastings, part of Marc Emery’s Cannabis Culture Headquarters.

He outlined recent changes to Canadian law, brought into effect on November 6^th of 2012, which mandate minimum sentencing guidelines for drug offences, with a focus on their implications for medical cannabis dispensaries. According to Tousaw, the new sentencing regulations make running a dispensary, or even working in one, a much riskier activity.

Dispensaries remain illegal under Canadian law. Health Canada has no plans to include such operations in its medical marijuana policy.

Looking around the room, he remarked how, seven years ago, he felt that he knew every person working in a Vancouver dispensary. Today, that is no longer the case, he said.

The full room contained many unfamiliar faces and there was a distinct impression that the crowd is a basic cross-section of Vancouver’s cannabis culture. A range of ages, ethnicities, and backgrounds populated the room, with only one visible connection: aside from the speaker, almost everyone was smoking a joint. To my left were three young men and on my right a woman who appeared to be in her mid-forties. The three on my left were passing a joint around while the woman on my right smoked one to herself.

Tousaw talked about relevant marijuana-related crimes, namely trafficking, possession for the purpose of trafficking, and production, regulated under section 5 of the Controlled Drugs and Substances Act. The maximum sentence for trafficking is life in prison. However, this is not new to the current sentencing guidelines. New are the mandated minimum sentences and their implications for medical cannabis dispensaries, he said.

Minimums kick in when the total amount of marijuana seized is equal to at least three kilograms. Of course, this is not the kind of thing which concerns the average cannabis user. However, as Tousaw pointed out, it is quite common for a dispensary to hold at least that much product on its premises. If there are other cannabis products on the premises as well, such as cookies or extracts, then the full weight of that product is used to determine the amount of cannabis on hand.

In other words, if a batch of cookies contains 20 grams of marijuana, yet the cookies weigh 500 grams, that batch of cookies would be counted as if it were 500 grams of marijuana. If this puts the total over three kilograms, the mandatory minimums may apply. Since many dispensaries also carry baked goods, this only raises the likelihood of mandatory jail time for dispensary operators.

Another wrinkle sets in when considering the rules for deciding between minimum sentences of one and two years. This provision was mostly meant to protect the safety of minors. Hence, proximity to a school, selling to or involving anyone under 18, and similar things are covered here. And yet, as Tousaw explained, there is a persistent vagueness to the wording. For example, if you commit the crime in a place frequented by persons under the age of 18, then you get bumped up to the two year minimum. But what exactly, he asked, is a place frequented by minors? That could reasonably describe almost any place which is neither a bar nor a casino.

He went on to cover the punishment for cultivation, ranging from six months for six to 200 plants, up to two years for the cultivation of over 500 plants, three years if aggravating factors are present. Processing marijuana into other products, such as cookies or other baked goods, also constitutes production. Hence, any dispensary with an attached bakery faces both trafficking and production charges. The strange thing here is that the sentencing guidelines for production are all linked to plants. It is difficult, he argued, to see how such guidelines could be applied to baked goods.

In Canada, the court has the discretion, in many cases, to impose alternatives to incarceration. A judge may issue a conditional or absolute discharge. In this case, there is a finding of guilt but no criminal conviction and the accused is released back into the community.

According to Tousaw, cases involving marijuana dispensaries and their growers have often resulted in discharges for the accused. He recalled seeking a discharge in R v Beren on Vancouver Island. The judge in that case, Madam Justice Marvyn Koenigsberg, responded “if ever there was a case in which an absolute discharge was appropriate, it was this one.”

But in order for discharge to be an option, there must be no minimum sentence attached to the crime. Immediately, this eliminates the option for any dispensary operator with more than three kilograms on site. However, a discharge is also unavailable if the crime carries a maximum sentence of 14 years or life in prison. While there is no minimum sentence attached to cultivating fewer than six plants, there is a maximum sentence of 14 years. “Discharges,” said Tousaw, “are not available any longer.”

Another alternative is the conditional sentencing order, which is basically house arrest. Like the discharge, this has been common in marijuana trafficking cases. Again, between the existence of minimum and maximum sentences, this option is now off the table.

The only other option available to the court is to suspend the sentence pending completion of a drug treatment program. If the accused completes the program, then the court is no longer obligated to impose any minimum sentence. The wrinkle here, said Tousaw, is that some people who operate or work in dispensaries do not in fact consume marijuana. Yet completion of a drug treatment program might be that person’s only means of escaping prison time.

There is actually one other way to escape the mandatory minimum. If the Crown declines to inform the accused that it is seeking the minimum sentence and why, then the court is not bound to impose it. Of course, the court is still allowed to impose jail time, but it is no longer bound by the minimums which came into effect late last year.

So, while the courts used to have exclusive discretion in matters of sentencing, some of that discretion now rests with the Crown. On its face, this appears to represent a conflict between two very different activities. At the very least, it seems strange that the same party responsible for proving your guilt should also have the power to set your minimum punishment. Said Tousaw, this transfers “a tremendous amount of discretion into the hands of the Federal Crown and out of the hands of judges.”

Not only do the new minimum sentences fly in the face of case law, he argued, they also offend basic sentencing principles. He cited principles surrounding the gravity of an offense, proportionality, and the intentions of an accused, all of which seem to recommend lenience for dispensary operators. “People in this industry are some of the most responsible people I know. And they are some of the most community-aware and active people that I know.”

He reflected on the basic purposes of incarceration, such as protection of the public, respect for the law, and fostering a civil society, none of which appear to be served by sending dispensary operators to jail. Throughout his talk, Kirk Tousaw returned to the same basic point: jail is a bad way to deal with crime. Even if the goal is deterrence, he remains deeply skeptical. “Even in the most draconian regimes, where people get executed for even possessing drugs, people still do it,” he said. “Even in the States, [where] you get life in prison for growing some marijuana, people are still doing it.”

Tousaw himself is involved in at least five ongoing cases dealing with Canada’s marijuana laws, two of which are mounting Charter challenges, he said. As well, the Quebec Criminal Bar has already filed suit that the mandatory minimums violate the Charter. There are also significant cases before the courts in both British Columbia and Ontario.

But the real test will likely come when individuals charged under the new laws come before the courts. Only those charged after November 6^th, 2012 face mandatory minimum sentences. It remains to be seen if barristers like Mr. Tousaw can punch holes in the Conservative government’s new approach. For that to happen, a case will likely need to reach the Supreme Court of Canada. This can take years of working through the court system, which means that the mandatory minimum sentences are not going away any time soon.

Kirk Tousaw’s talk can be viewed at pot.tv