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Prince Rupert City Council to head off cannabis law loopholes with new bylaws and lobbying

Canadian charter rights may hinder municipalities’ ability to enforce bylaws
29278008_web1_Marijuana-Leaf-Teaser
(File photo)

Constitutional rights under the Canadian Charter of Rights and Freedoms may hinder the City of Prince Rupert from fully enforcing any current or potential municipal laws regulating medical cannabis grow operations permitted by Health Canada, the council heard at the regular meeting on May 30.

Mayor Lee Brain said this is a problem, not just for Prince Rupert but for the nation, and he wants community members to be aware of several challenges the city faces.

Creating bylaws and lobbying upper levels of government to better regulate medical cannabis grow operations were recommended to the city council in a report by Rosa Miller, corporate administrator, as a response to what many see as a problem.

There are some city bylaws, and the Official Community Plan (OCP) does provide some regulations and provisions regarding the growth of cannabis, Miller said.

“These specific restrictions … may not apply to medical growth, as the restrictions may be deemed unlawful on users’ constitutional rights to life, liberty and security of person,” she said.

She explained that under the 2018 federal legalization of cultivation, processing, sales and consumption, municipal governments received no notice or opportunity to comment on zoning compliance for medical production. She said that compliance with zoning is not legally required under the Cannabis Act.

“The topic of public safety in regard to cannabis operations has become more prevalent with increasing calls for inspections and regulations for nuisance, odour and fire safety,” Miller said.

Some bylaws, such as building bylaws, apply to medical cannabis-related development but may only help regulate growth and not prohibit cannabis operations. The same does not apply to non-medical growth.

“Their application, [the enforcement of bylaws], may be constrained by human rights law, the doctrine of paramountcy and by private protection under the Charter of Rights and Freedoms,” the corporate administrator said.

“ …The challenge that the community needs to understand is that we don’t really have the right to show up to someone’s operation, walk inside of it, decide we agree or don’t agree it’s done properly, and do some sort of legal action against that, because of the loophole — that is this whole problem with Health Canada,” Mayor Lee Brain said.

The loophole, as previously reported in The Northern View on May 11, is the difficulty in regulating the medicinal cannabis grow operations licenced under Health Canada due to personal health information being confidential.

Every medicinal cannabis licence holder is permitted to allocate a grower on their behalf, who can grow the amount of cannabis prescribed by doctors for up to four licence holders, thus allowing unlimited plants.

Heath and safety concerns have been the topic of discussions between community leaders and residents after a fire in a downtown property where an alleged medicinal grow operation destroyed a neighbouring hotel.

“For example, for an electrical permit — because they’re not going through the regular process of applying for permits, and then having the fire department show up … who is approving their operations at this moment?” Brain questioned during the meeting.

“This is done entirely by Health Canada. Whether or not they inspect is a question that we have no answer to,” Rob Buchan, city manager, said in response, adding he backed the design of new bylaws because there is “probably some legal ability to enforce a bylaw.”

“The challenge, of course, is finding out where the facilities are because Health Canada does not tell us,” Buchan said. “So, we’ll have to do some homework on where they are. And when we find out about them, we can in the end approach them to make sure that they’re complying with the regulatory aspects of health and safety in our bylaws.”

The city manager said new bylaws could potentially be quite problematic. Still, he believes it is an avenue that should be tried in tandem with lobbying the federal government, which was started on the weekend after discussions with Skeena - Bulkley Valley NDP MP Taylor Bachrach.

Brain said his understanding is that the courts have ruled individuals can not be limited in their access to growing medical marijuana, which is why the city is not permitted to regulate medical grow operations in the same way they would a business.

“I guess the challenge is, we can do these actions, but with no guarantee they will always have results,” Brain said. “And also that Health Canada won’t inform us where these locations are, which requires us to know. I mean, people know where they are, but we don’t “know” [officially] where they are, which is ridiculous,” Brain said.


 K-J Millar | Editor and Multimedia Journalist 
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