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

Tousaw outside a courtroom after securing his client a discharge for a marijuana-related offense. Once a normal outcome in medical marijuana cases, discharges are a thing of the past under Canada's tough, new laws.

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 6th 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.

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