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No harm, no foul: council approves no matrix penalty for medical cannabis dispensaries still operating

Timothy Schafer
By Timothy Schafer
December 7th, 2018

The newest edition of city council put its stamp on the cultural landscape of Nelson when, in its first regular meeting of the new term, agreed to exempt cannabis retail store applications from being deducted points for continuing to operate without a valid business licence.

Council exempted Leaf Cross, Kootenay’s Medicine Tree and Nelson Potorium from being penalized since the regulatory body for cannabis reverted to the province and the municipal business licence in Nelson has become redundant.

A scoring matrix will be used to determine who receives a recreational cannabis business licence in the city and who does not. Although recreational cannabis applications will get vetted through the province first, the municipality holds the real say on how many and who gets to operate.

All eligible recreational cannabis applications for Nelson will be brought to the city and city council for consideration. If the application fails to meet any of the bylaws pertaining to cannabis, it will not come to council.

The matrix criteria fall under four headings: location and community compatibility and impact; security plan; qualifications and experience of the applicant; building façade and interior improvements.

But it could be several months before the applications come from the province to council, said The Medicine Tree’s Jim Leslie. The exemption is another “stop-gap measure” to make sure no medical cannabis patient gets hurt by having their access cut off to medicine from the medical cannabis dispensaries they have come to trust and rely on, he explained in a letter to council.

“To prevent harm to medical patients we must reduce the time the five Nelson medical cannabis dispensaries are closed through the application process by preventing punishment via the scoring matrix point deduction for staying open without a 2019 Medical Cannabis business license and Temporary Use Permit,” he wrote.

The exemption allows the dispensaries to stay open and operate without a 2019 business license and zoning permit, up to the point of their individual inspection by the LCLB.

“The access crisis that would have prevented Nelson’s residents, who suffer from chronic or terminal illnesses, from accessing their medical cannabis by virtue of shutting down medical cannabis dispensaries has been temporarily averted,” Leslie explained.

In October the previous city council voted to allow the business licences to expire “naturally” at the end of the year and effectively keep medical cannabis in the hands of local people who need it.

The Kootenay’s Medicine Tree’s clinic provides a service with access to cannabis for people who require it for chronic or terminal illness. Allowing for reasonable access to medical cannabis has been determined by the courts and has been upheld by the Supreme Court of Canada, Leslie has contended.

Like the four other dispensaries in the city, the Medicine Tree is seeking a provincial licence for non-medical retail sales.

During the period when both the federal and provincial governments were developing the laws for legalization of cannabis, the city implemented interim regulations for medical cannabis dispensaries in 2017 resulting in five dispensary licences being issued.

But the legal onus has shifted to the federal and provincial governments and the city has a bylaw that does not conform to provincial and federal regulations it has no legal standing, business licence or not.

The city amended its zoning bylaw and is in the process of amending the business licence bylaw to ensure it is in alignment with the provincial and federal regulations.

Section 10 of the Community Charter provides “a provision of a municipal bylaw has no effect if it is inconsistent with a provincial enactment.”

The provincial government has established an enforcement program and has the full authority to fine or close those selling cannabis that do not hold a provincial licence. City enforcement of bylaws is generally complaint based, unless council requests active enforcement.

Medical cannabis business licences are currently held byGreen Room Society (306B Victoria Street), Leaf Cross Health Society (358 Baker Street), King Canna Medicinals (619C Front Street), The Kootenay’s Medicine Tree (106-601 Front Street) and Nelson Potorium (471A Baker Street).

The existing dispensaries are currently operating contrary to the city’s zoning which requires, amongst other requirements, a provincial recreational cannabis licence in order to sell cannabis.

Federal regulations do not allow the sale of medical cannabis or edibles.

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