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Legal ramifications shroud special report on medical cannabis

Grand Forks Mayor Frank Konrad told council it must ultimately abide by federal law in every decision, even though neighbouring communities pass medical cannabis legislation. Screen Shot photo

In the wake of a special report on the local government role in the regulation of marijuana, the city's mayor was adamant Grand Forks will not be sanctioning what is still an illegal substance.

Mayor Frank Konrad told council during its committee-of-the-whole meeting on Monday the city would not be enacting legislation for a substance that is still considered illegal, and put the corporation of the City of Grand Forks at risk for legal challenges in court.

He said although the city sets its own municipal governance standards it must ultimately abide by federal law in every decision, even though neighbouring communities pass medical cannabis legislation.

He said when the federal government delivers its ruling on the subject — likely July 1, 2018 — there will be no unfairness or grey areas anymore regarding medical cannabis and then the city can, in good conscience, draw up legislation to deal with it.

"Until then, if other municipalities wish to take that risk they can ... we don't need to take examples of something that is still black-and-white illegal," he said after consultant Dave Smith delivered his Special Report on the Local Government Role in the Regulation of Marijuana (Cannabis), to council on Monday.

"As soon as we get a green light to act, we will act. But until such a time we have a green light — and we don't even have a yellow light — we have a red light because at this point in time the actual discovery of the reasoning and what was behind it has not yet been established."

In his report summary, Smith wrote "local government is well advised not to undertake any actions at this time which contravene the law, hence being unlawful."

He also said that any measures put into effect prior to the date of legalization may, in all likelihood, "be changed after legalization comes into effect since many of the issues in regulation ... have not fully been resolved."

Smith warned the city against drawing up legislation on cannabis.

"Putting in bylaws which may be legally risky may also create expensive enforcement processes and may result in legal costs to the city of challenged," he said.

"Is there still reluctance of a lot of municipalities to go down that path because of the legal challenges?" Konrad asked Smith.

He replied municipalities that did go down that path were very measured in what they did because of the risk, and received legal advice.

Coun. Julia Butler thought the special report would be legal advice but did not see any such communication in the report's reference.

"So this just comes back clear as mud. Yes it's illegal, but councils are still making bylaws on it," she said. "It's not a grey area, it's just not being enforced."

She asked what Grand Forks RCMP had said about the issue. If the city made a bylaw and the RCMP would just come along and shut a medical cannabis operation down it would be a waste of time, Butler noted.

Smith talked to local RCMP and they will still have to do what they need to and carry out the law, and not allow for any visible product on the sites.

Smith of Smithplan Consulting was contacted by the City of Grand Forks on March 21 to complete a report for the city on the local government role in the regulation of marijuana (cannabis).

The report did not deliver any biased opinions on the subject, but was written to provide general knowledge, information and background context — and some intended objective analysis — on the subject.

In his report preamble, Smith noted that many issues "relating to this cannabis use are beyond the control" of local governments.

"Notwithstanding the regulatory regimes which may be implemented, legal challenges in all likelihood will occur over time and any regulatory frameworks set up today, may well need to be adjusted, changed, revised or tweaked," he said in his report to council. 

"With this in mind, what moves forward today may be limited in its longevity."

However, Smith said the use of medical marijuana, by prescription, is now legal. The use of marijuana for recreational purposes is not legal in Canada, but could be by mid July.

Medical marijuana is defined as marijuana prescribed by a doctor and used as a medicine, usually in the form of a “smoke-able” product or in pill form, edible or as an oral spray. 

He suggested three options for action, including legal prohibition. In Canada the government’s approach to substance use has traditionally been that it's mainly a criminal justice issue, with cannabis and other drugs being viewed through a law enforcement lens.

"However, it does not follow that prohibition is the most sensible from a healthy policy perspective," Smith wrote in his report. "Taking that logic to the extreme would mean that alcohol, automobiles … might all be prohibited, since each of these can result in fatal casualties."

The second option was to do nothing, an action which avoids the potential for unintended harmful consequences (or an unpopular reception) from a firm action or direction being undertaken. 

"However, in this instance, there are local matters of jurisdiction which Grand Forks may want to control, including land use and business regulations," said Smith.

The third option includes sanctioning cannabis, treating it as a medicinal one, not a criminal one.

"Such an approach is based on evidence-informed policy and practice, both addressing the underlying determinants of health and putting health promotion and the prevention of death, disease, injury and disability as its central mission," said Smith.

The report was received for information by council.

The next steps could include council looking at a bylaw, hosting a few workshops to see what key areas that would need focus and host an open house with stakeholders to discuss what the options are coming at them, and what is proposed.

Smith suggested the city could act in other areas, including land use (zoning regulations), business licensing, education and information on cannabis regulations.