MEDICAL MARIHUANA: MUNICIPAL PERSPECTIVE ON LICENSING AND ZONING CHALLENGES Robert Genoway Legal 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 FACILITY 2. 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 FACILITY 3. 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  Canada Ltee v. Hudson (Town) 2001 SCC - Test of dual compliance