Halifax dispensary challenges municipality’s by-law enforcement
2/15/2019 8:53 AM
By Sarah White and Julianne Stevenson
A downtown Halifax dispensary is challenging Halifax Regional Municipality (HRM)’s attempts to enforce a by-law requiring that the dispensary obtain a permit to operate, on the basis that the by-law has the effect of infringing Charter
Canna Clinic on Dresden Row in Halifax is currently the subject of a municipal prosecution, on the basis that it was operating without a valid business permit in contravention of land use by-laws. Although the area is zoned mixed residential and commercial, HRM has given evidence that no permit would have been issued to the Clinic, regardless of whether or not it properly applied.
The Clinic pled guilty to operating a business without a valid permit, but is arguing on sentencing that the Provincial Court of Nova Scotia should decline to grant the compliance order requiring the Clinic to shut down, on the basis that the effect of the by-law infringes the Charter
rights of the patients who use the clinic to obtain medical cannabis.
Canadians have had a constitutional right to reasonable access to medical cannabis since the Ontario Court of Appeal’s 2000 decision in R v Parker
. However, while Canadians can currently buy recreational
cannabis in brick-and-mortar shops in most provinces, the legal system for obtaining medical
cannabis is fraught with problems that make it inaccessible to many patients.
To legally purchase the cannabis products necessary to treat conditions such as chronic pain or chemotherapy-induced nausea, patients must first obtain a medical document from a physician, authorizing the use of medical cannabis. Patients must then use that document to register with a Health Canada-approved Licensed Producer (LP) of cannabis—a confusing and difficult process for even those most experienced with the system. Once approved (which often takes a week, with administrative errors frequently delaying the approval process by a further 1-2 weeks), patients are allowed to order cannabis online from the LP’s website. However, LPs frequently run out of the products that patients require—those that are high in CBD-content—leaving patients waiting for weeks or months to be able to order what works for them again, or leaving patients with no option but to order a substitute product without being able to try it first to know whether it is suitable or effective for their specific medical condition. LPs are unable to provide advice or guidance to patients, who are often very vulnerable.
Moreover, the current LP system requires patients to order all products online, meaning patients must have access to a credit card and a fixed address to which they can send their products. This is a huge barrier to people in poverty and those experiencing homeless—particularly when one considers that many LPs require a minimum purchase amount for shipping, or charge up to around $14.99 for shipping. In contrast, brick-and-mortar cannabis dispensaries such as Canna Clinic accept payment in cash, allow customers to see and smell products before purchase, and have no minimum purchase requirement. Dispensaries such as Canna Clinic also serve as important community supports for medical cannabis users, who go to dispensaries for information and advice that employees of government-run recreational cannabis outlets, such as the Nova Scotia Liquor Corporation (NSLC), are not trained to provide.
In a three-day sentencing hearing in Provincial Court in Nova Scotia before the Honourable Judge Elizabeth A. Buckle, Canna Clinic led expert evidence of the barriers faced by medical cannabis users through the existing program, and argued that those shutting down dispensaries would have the effect of infringing the Charter rights of medical cannabis users on the basis of sections 7, 15 and 2(b). The matter returns to Court on April 4, 2018.