MEDICAL MARIHUANA: MUNICIPAL PERSPECTIVE ON LICENSING AND ZONING CHALLENGES

Robert GenowayLegal Counsel, City of Mississauga

TYPE OF FACILITY

1. LICENCED PRODUCERS

Currently 13 operate in Canada (ON and BC).

Persons who receive a licence from Health Canada to possess, produce, sell, provide, ship, deliver, transport and destroy marihuana.

All recipients require a physician’s prescription. No distribution on site. All product is mailed either to the recepient or their physician.

Legal Framework: Medical Marihuana Production Regulations (the “MMPR”). sets out rules regarding shipping, record keeping, security measures,

licensing ect.

TYPE OF FACILITY2. COMPASSION CLUBS

Example: Toronto Compassion Centre

Provides info and dispenses marihuana on site. Need to be a member which requires either: (1) a doctor’s letter of diagnosis for people with HIV, arthritis, cancer ect. (2) doctor’s/homeopath’s letter of endorsement or (3) Health Canada exemption.

Legal Framework: Does not comply with MMPR. Role of Police – trafficking (non-medical use).

Charter Challenge (Sec. 7 – life, liberty and security of the person) -- providing adequate access to medical marihuana. Physicians are the gatekeeper

TYPE OF FACILITY3. CLINICS

Examples: Canabinoid Medical Clinic, Medical Marihuana Clinic of Canada, Medicinal Cannabis Resource Centre Inc.

Physicians assess patients, help them navigate the MMPR to obtain medical marihuana and prescribe it. No distribution on site.

Legal Framework: Legal prescription is regulated by the Narcotic Control Regulations and the MMPR.

TYPE OF FACILITY

THE VERDICT

Licenced Facilities – YES, a licensing regime is available and should complement and not interfere with the requirements under the MMPR.

Compassion Centres – TBD, their legitimacy is currently before the courts.

Clinics – YES, subject to MMPR.

HOW TO REGULATE? PART 1: ZONING

Definition of Medical Marihuana Facility City of Ottawa “used for the cultivation, processing,

testing, destruction, packaging or shipping of marihuana.” City of Toronto “growing, producing, testing, destroying,

storing or distribution of marihuana.”

Distancing Requirements City of Ottawa at least 70 metres from a school, place of

worship and day nursery. City of Toronto Must not be within 150 metres of a

Residential, Institutional, Village Residential, Rural Residential or Rural Institutional.

HOW TO REGULATE? PART 1: ZONING

PEOPLE ZONING

Decisions made based on the people that use the facilities vs. proper zoning principles.

Sec. 35(2) of the Planning Act states that a municipality cannot “pass a by-law that has the effect of distinguishing between persons…in respect to the occupancy or use of the building”

Must constitute good planning.

City of Oshawa zoning bylaw 2002 (methadone clinics).

HOW TO REGULATE? PART 1: ZONING

CITY OF MISSISSAUGA

Current Zoning Bylaw – Commercial growing of marihuana is not permitted. To date, the City has approved two applications to the CofA since the MMPRs were introduced.

Proposed Zoning Amendment – to be permitted in all Employment Zones within “Business Employment” and “Industrial” designated areas in MOP. NO distancing requirements. Not permitted in residential areas.

HOW TO REGULATE? PART 2: LICENSING

OBJECTIVE Working alongside the MMPR Monitor their location

OTHER MUNICIPALITIES No Ontario municipalities currently licence Kelowna – require confirmation of HC licence Surrey – deals with personal use. Requires a

floor plan, security plan and electrical/lighting plan

HOW TO REGULATE? PART 2: LICENSING

APPLICATION PROCESS

Verify compliance with:

Federal Regulations (copy of Health Canada licence)

Zoning bylaw (zoning certificate issued by the City) ensuring permitted use

Incorporating documents

HOW TO REGULATE? PART 2: LICENSING

ABILITY TO SUSPEND/REVOKE LICENCE

Non-compliance with other municipal by-laws (property standards, nuisance ect.)

HC licence revoked or non-compliance with the MMPR.

Any decision of the Licence Manager may be appealed to an Appeal Tribunal

HOW TO REGULATE? PART 2: LICENSING

INSPECTION POWERS

To ensure compliance with the by-law

Produce all relevant documents

No obstruction

HOW TO REGULATE? PART 2: LICENSING

GENERAL PROHIBITIONS

Own/Operate a Facility without a licence

Fail to comply with a term of the licence

No Transferring of licence

CONCLUSION

TYPE OF FACILITY

ZONING CHALLENGES People zoning

LICENSING CHALLENGES

Division of Powers Federal vs. Provincial Doctrine of Paramountcy – where there is a conflict,

the Fed law will prevail 114987 Canada Ltee v. Hudson (Town) 2001 SCC -

Test of dual compliance