Legal News and Commentary

Marijuana Dispensary Owners Need to Step Up

Today I was at Old City Hall, yet again scanning the incredibly long list of accused persons in the Project Claudia raids from May 26. It’s hard to believe but it’s been almost half a year since the initial sweep of Marijuana Dispensaries in Toronto, and the legal fall-out continues for many accused persons who are still before the courts, still trying to sort out their lives. Officially, only the May 26 arrests are truly Project Claudia. But unofficially, the name has also been applied to the many raids that have occurred since, and which continue to this day. I was in bail court just two days ago when another clinic was raided. It’s still happening.

I don’t know how many people are facing charges now, from arrests that occurred at their workplaces. It’s surely in the hundreds. Some are lifelong cannabis activists. Some are making good money at what they do, because they are established in the community and know how to bring in the business. Many are ordinary people, working in a shop for whatever hourly wage they are being paid. They may have believed it was legal when they took the job. They may have been told it was legal when they took the job. Many don’t have criminal records and have no experience in the criminal justice system. They don’t know what the hell is going on right now. And somewhere behind them, the owners of these dispensaries are watching this happen, and deciding what to do about it. Not all of them are stepping up, and I’m bloody sick of it.

I’m a front line criminal defence lawyer just trying to do my job properly. I support legalization of both medical and recreational cannabis. Medical cannabis is currently “legal” but inaccessible to far too many patients. That’s a huge constitutional problem and it needs to be fixed. I applaud the lawyers working on that. Recreational cannabis is not currently legal, no matter what anyone believes, and I frankly can’t see any reasonable constitutional argument that could turn a recreational drug into a protected right. Legalization can’t come fast enough. I wish our government would get its collective ass in gear and get it done. But right now it isn’t legal. Anyone who tells you otherwise is just dreaming.

So, what’s going on with all of these dispensaries? A combination of two things. First, many are run in part or in whole to help provide medicinal cannabis to patients who need it and who can’t get it through any other safe, affordable, practical source. It is medication, for many people, and they have a right to access it. I’m confident in that. It isn’t clear they have a right to access it in storefront dispensaries, but there’s a solid argument to be made, at least, that they should. Second, many of these same dispensaries are now selling to any adult, based on their belief that everyone does or should have the right to access cannabis on any basis. They are essentially operating on the premise that it’s already legal. And again, let me stress, outside of medical purposes it simply is not.

Here’s where things get dicey, and where activism meets commerce. Everyone knows that legal cannabis is going to be big business, and everyone wants a piece of it. Even Shoppers Drug Mart is getting into the mix. And there is a very real commercial land rush taking place here. Is the market going to be dominated by big, commercial players? Will there be a monopoly on distribution similar to the LCBO? What about social venues such as vape lounges – which are to cannabis what bars are to alcohol? One thing is certain, there’s a lot of money to be made and some people are going to get rich.

Like many people, I support local businesses and entrepreneurs. I don’t want to see the Starbucks of cannabis come to dominate the marketplace. I would far rather see a market filled with a lot of small players – preferably the activists and the community leaders who have been fighting this fight, and paying the price, for a lot of years. But these small players are a mixed bag. I’m not here to name names, but some are far better organized than others. Some are capable of running a business and some are really just in over their heads from a commercial perspective. Coming in from the shadows isn’t easy. Suddenly you’re dealing with building codes, by-laws, taxes, HR issues, leases, and a myriad of other problems they’ve never had to deal with before. It’s actually very complicated to legally sell a fresh made brownie in Toronto, or to run a holistic medical clinic providing natural treatments. It certainly doesn’t get less complicated when you’re selling a brownie laced with cannabis, or providing medical marijuana.

I am sure of one thing, however. These dispensaries are making money. No matter how well or how badly they may be run, it’s just about impossible to open a shop selling cannabis and not make money. That’s exactly why so many people are doing it right now. I don’t presume to know exactly how much money or where it’s all going. But I know how much the police are seizing when they execute a raid, and I know that any halfway intelligent operation is emptying its cash registers daily, if not more often. The owners are making money. And not all of them are showing up when their employees are facing charges.

People sometimes think that everyone who can’t pay for a lawyer qualifies for legal aid. It isn’t true. You need to basically be completely broke to qualify for legal aid, and you need to be facing a risk of jail. In these charges, the Crown is generally not seeking jail. That’s a good thing – that the Crown is being reasonable. They don’t really want to nail the front line employees anyway. But those are the people facing criminal charges and even if they don’t go to jail there can still be serious consequences. Some are being released on arrest, others are being held for bail. Many, as I’ve said, have no criminal records at all and any conviction could have long-term consequences in their lives. They need and deserve representation. And many of them – many of them – just aren’t getting it. And I am sick and fucking tired of it.

Many owners are behaving responsibly. They have lawyers who they pay to help their workers and they are stepping up. I’ve worked for them on several cases already and I’m always willing to do more on short notice, as these raids appear likely to continue. Some owners just aren’t taking responsibility. Their workers are left standing there in court wondering what the hell is happening. They’ve lost their jobs, they were often struggling with finances and other issues in the first place, and they can’t even get legal aid to pay for some kind of help. Let me repeat. They can’t get legal aid. None of them.

I know people think lawyers are expensive. I know you don’t want to hear from lawyers who say “pay me and I’ll help you.” So let me repeat. I’m a front line lawyer. I take legal aid rates all the time. I would gladly represent these clients for what legal aid pays – and it isn’t that much. But that isn’t possible, and the owners of these dispensaries aren’t even stepping up to that amount. The amount of money coming out of their tills on a daily basis would be enough to hire competent counsel to defend their workers. And they aren’t doing it. Not all of them, anyway.

You’ll notice I haven’t named a single name in this post. I don’t intend to. The politics of the 420 community aren’t my business. But someone needs to name and shame the owners who aren’t stepping up for their workers. And the owners who are stepping up deserve credit, also. The word needs to get out there. Sometimes people ask me if they can go back to work at dispensaries. I tell them they risk being arrested and it isn’t currently legal in any clear way, but of course it’s their choice to make. I also tell them, however, to only work for a legitimate shop with the guarantee of legal representation if and likely when they do get arrested. Why would anyone work without that?

It isn’t my place to tell the cannabis community what to do or how to think. I’m an ally and a supporter. Heck, I was a delegate to the Liberal convention in Ottawa, in 2012, when we first adopted the platform to legalize. It’s good policy and I support it. But I’m not a 420 activist. I’m just a criminal defence lawyer who wants to do my job. The cannabis community has got to hold the owners of these shops accountable. They are entrepreneurs and business people in addition to being activists. Let’s not fool ourselves. They aren’t just trying to get everyone their medicine and their recreational pot – they are also making a lot of money. And none of them should get away with taking the cash and leaving their employees holding the empty bag.

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