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City medical cannabis dispensaries allowed business licence to operate past Oct. 16

Council voted to allow the licences to expire “naturally” at the end of the year and effectively keep medical cannabis in the hands of local people who need it.

City council is Nelson’s newest compassion club.

Council did not turn a blind eye to the plea from several medical cannabis clubs in the city to keep their business licences in effect past the Oct. 16 date when the legalization of recreational cannabis occurs.

Instead, council voted to allow the licences to expire “naturally” at the end of the year and effectively keep medical cannabis in the hands of local people who need it.

In August, the medical cannabis dispensaries were notified that cancellation of their medical cannabis business licences would be considered at the Oct. 9 council meeting, one week before legalization of recreational cannabis was to occur.

It was expected that the regulatory body for cannabis would revert to the province and the municipal business licence would be redundant.

The Kootenay’s Medicine Tree’s Jim Leslie told council his clinic provided a service with access to cannabis for people who require it for chronic or terminal illness. Allowing for reasonable access to medical cannabis has been determined by the courts and has been upheld by the Supreme Court of Canada, he added.

He asked for an interim period that would take them past Oct. 16 and until date of retail inspection on the non-medical cannabis licence application, likely to happen later in the year.

“We serve a large group of people from Nelson and area that have proven chronic or terminal long-term illnesses. That is our vetting process. That is how we know whom to help,” he said.

“This large group of people simply cannot stop relying upon us overnight and we have no way to accommodate their needs if we are to shut down on Oct. 16.

“It doesn’t mean that you are standing up for what we are doing or promoting it, you are simply making a decision based on compassion, courage and constitutional law and case law that supports the sickest members of this community.”

Like the five other dispensaries in the city, the Medicine Tree is seeking a provincial licence for non-medical retail sales. Leslie also asked that The Medicine Tree not have 20 points deducted on the municipal application scoring matrix for operating past Oct. 16.

During the period when both the federal and provincial governments were developing the laws for legalization of cannabis, the city implemented interim regulations for medical cannabis dispensaries in 2017 resulting in five dispensary licences being issued.

Leaf Cross and the Green Room also had representatives at the meeting asking for the same thing.

City manager Kevin Cormack said the legal onus shifts to the federal and provincial governments after Oct. 16 and if the city has a bylaw that does not conform to provincial and federal regulations it has no legal standing, business licence or not.

“It will ultimately be the provincial government that would close businesses and would not issue a recreational licence if the business is not in compliance,” he said, and not the municipal government.

The city has amended its zoning bylaw and is in the process of amending the business licence bylaw to ensure it is in alignment with
the provincial and federal regulations.

“We really view this (legalization) as just cleaning up our end of regulations and getting them in line with the province,” said Cormack. “Ultimately, access to medical cannabis is a federal government responsibility … and they are the ones to (decide).

“Our bylaw has zero relevance to the provincial government. If it does not fit with the provincial government regulations it has no force.”

Coun. Michael Dailly wondered what the danger was in allowing the licences to stand.

“I don’t think there is any danger to council,” said Cormack. “All I am saying is, as the businesses, it’s not protecting them from the province or police for prosecution.”

A motion to let all five of the medical cannabis business licences to naturally expire at the end of the year was made by Coun. Val Warmington.

“And then it’s up to the next council to do what they want at that point,” she said.

“Are they at risk that, on Oct. 17, the RCMP could come and ask these people to close their doors?” asked Coun. Janice Morrison.

“Yes, they are outside of provincial regulations,” replied Cormack. “Regulators have stated that if people have illegal product in the store when they come to inspect, they will not be issued a licence.”

Section 10 of the Community Charter provides “a provision of a municipal bylaw has no effect if it is inconsistent with a provincial enactment.”

City staff had contacted the provincial Liquor and Cannabis Regulation branch to ask what impact there may be to the dispensaries if they continue to operate past the date of Oct. 17.

“Once it is legal as of Oct. 17 and since there is an avenue to be licensed; continued operations for an unlicensed store selling cannabis may be subject to compliance and enforcement action,” noted the reply from the assistance manager.

“It’s unclear at this time what this would look like or if any action or charges would impede their ability to apply for a cannabis licence. I would strongly recommend that any store interested in selling cannabis after Oct. 17 begin the process of applying for a licence as soon as possible.”

The provincial government has established an enforcement program and has the full authority to fine or close those selling cannabis that do not hold a provincial licence. City enforcement of bylaws is generally complaint based, unless council requests active enforcement.

The motion to allow the business licences to stand passed, while council also determined that no demerit points would be assessed once the application process hit the municipal level.

Medical cannabis business licences are currently held by Green Room Society (306B Victoria Street), Leaf Cross Health Society (358 Baker Street), King Canna Medicinals (619C Front Street), The Kootenay’s Medicine Tree (106-601 Front Street) and Nelson Potorium (471A Baker Street).

The existing dispensaries are currently operating contrary to the city’s zoning which requires, amongst other requirements, a provincial recreational cannabis licence in order to sell cannabis. Federal regulations do not allow the sale of medical cannabis or edibles.