Letter to Victoria police board

8/20/2019 Letter to Victoria police board

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Office of the

Police Complaint Commissioner

British Columbia, Canada

Stan T. LowePolice Complaint Commissioner

5th Floor, 947 Fort StreetPO Box 9895 Stn Prov Govt

Victoria, British Columbia V8W 9T8Tel: (250) 356-7458 Fax: (250) 356-6503

Toll Free 1 877-999-8707 Website: www.opcc.bc.ca

OPCC GEN-2B 20141007

December 29, 2015 OPCC File No. 2015-10891

VIA E-MAIL: [email protected]

Her Worship Mayor Barbara DesjardinsHer Worship Mayor Lisa HelpsCo-Chairs, Victoria and Esquimalt Police Board1 Centennial SquareVictoria, BC V8W 1P6

Dear Mayors Desjardins and Helps,

Re: Service or Policy Complaint

On October 29, 2015, the Office of the Police Complaint Commissioner (OPCC) received a copyof your concluding letter to Ms. Pamela McColl dated October 20, 2015. That letter dismissedMs. McColl’s complaint and provided reasons, which included:

• The Supreme Court of Canada in R. v. Smith, 2015 SCC 34 ruled that section 4(possession) and section 5 (trafficking) are of the Controlled Drug and Substances Actare of no force and effect to the extent that they prohibit a person with a medicalauthorization from possessing marihuana derivatives for medical purposes. Ourinformation is that many of the dispensaries to which Ms. McColl takes exception, aresignificantly engaged in possessing and selling (trafficking) cannabis derivatives formedical purposes. Indeed, we are advised that some of the dispensaries employ medical professionals to provide prescriptions to prospective users. Given the ruling in Smith,this kind of activity is not illegal in the sense that it is not contrary to the “criminalstatutes.”

• While the activity of some dispensaries may be illegal, police enforcement is particularlycomplex due to:

o a lack of a regulatory scheme in place for medical marihuana derivatives and,

given Smith, selling them is not contrary to the criminal law; ando the courts have clearly stated that there is a need to ensure effective access by

legitimate users.

mailto:[email protected]:[email protected]:[email protected]:[email protected]


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• Victoria City Council has directed staff to develop new regulations for the City’smarihuana related businesses.

• Discretion is an essential feature of the criminal justice system:

o

individual police officers have the discretion to determine whether to arrest andcharge individuals or to resolve matter via alternative means; and

o the Chief Constable has discretion with respect to how limited resources are tobe deployed and the Board supports its Chief Constable’s decision to limitdeployment of police resources in respect of marihuana dispensaries when thereare public safety concerns.

The OPCC acknowledges that the City of Victoria is in the process of developing a regulatoryframework in order to address the issue of marihuana dispensaries. However, it is unclear howlong that process will take, what that framework will entail or the role that the Victoria Policewill play in that framework. Also currently unclear are the Board’s position regarding the legal

status of marijuana dispensaries in Victoria, the Board’s priorities with respect to theenforcement of criminal legislation in relation to marihuana dispensaries and the Board’sexpectations of officers with respect to their day-to-day enforcement responsibilities in relationto marijuana dispensaries.

For these reasons, it is my view that the Victoria Police Department could benefit from thecreation of a clear and objective policy in the area of enforcement as it relates to marihuanadispensaries.

Section 173 of the Police Act states:

(1) Subject to subsection (2) of this section, whether or not the person who made the complaint

has requested a review under section 172 (2) [if investigation or study is initiated under section171] the police complaint commissioner may do any of the following:

(a) Review the decisions of a board under section 172;

(b) Recommend to the board further investigation, study, courses of action or changes toservice or policy

(c) Make recommendations to the director under section 177(4)(e) [general responsibilityand functions of Police Complaint Commissioner].

OPCC REVIEW

Regina v. Smith

In Smith, the accused was charged after police executed a search warrant at his place ofemployment, the Cannabis Buyers Club of Canada, and located a bag of dried marihuana, 211cannabis cookies, and 26 jars of liquids containing tetrahydrocannabinol (“THC”), the mainactive compound in cannabis. At that time, the Marihuana Medical Access Regulations ( MMARs)created an exemption for the possession of marijuana for medical purposes, but limited theexemption to “dried marijuana.” Mr. Smith was charged pursuant to sections 4(1) and 5(2) of


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the Controlled Drug and Substances Act (CDSA) in relation to the THC contained in the cookiesand jars of liquids.

Mr. Smith argued that the limited exemption under the MMARs to “dried marijuana” was

unconstitutional. The Supreme Court of Canada agreed, finding that the prohibition of non-dried forms violated section 7 of the Charter and that violation was not reasonable anddemonstrably justified under section 1 of the Charter. The Court affirmed Mr. Smith’s acquittalat trial and offered the following remedy with respect to the unconstitutional exemption underthe MMARs:

“We conclude that the appropriate remedy is a declaration that ss. 4 and 5 of the CDSA are ofno force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.”

We note that the above remedy applies only to the limited circumstances outlined by the Courtand should not be construed as standing for the broad proposition that marihuana dispensaries

are not operating contrary to criminal legislation.

The Board’s Position on Dispensaries

The Board’s response to Ms. McColl’s complaint was unclear regarding its position on the legalstatus of marijuana dispensaries currently operating in Victoria. The Board states that “many ofthe dispensaries” are “significantly engaged in possessing and selling cannabis derivatives formedical purposes.” This statement indicates that some dispensaries are not engaged inpossessing and selling cannabis derivatives for medical purposes and even those that are maynot be exclusively engaged in doing so. The Board also states that “some dispensaries employmedical professionals to provide prescriptions to prospective users” and that “this kind ofactivity is not contrary to the criminal statutes” based on the ruling in Smith. The Board does not

discuss those dispensaries that do not employ medical professionals. The Board’s decision laterindicates that some of the activity in some dispensaries may be construed as in contravention ofthe CDSA, then states that police enforcement is ineffective in closing dispensaries, in part,because of the ruling in Smith.

A recent article in the Victoria Times-Colonist adds further confusion regarding the Board’sposition on dispensaries. 1 In that article, Board Co-Chair, Mayor Barb Desjardins, was quotedas stating that medical marihuana dispensaries are illegal under federal law.

Licensed Producers

The Federal Government has established a legislative framework for the production, sale andpossession of medical marihuana. According to the Marihuana for Medical Purposes Regulations (MMPRs), which replaced the MMARs, only a “licensed producer” may possess, sell, provide,

1 Cindy E. Harnett, “Esquimalt Council: No business licenses for medical marijuana outlets” Victoria Times-Colonist (6

October 2015) Online: http://www.timescolonist.com/news/local/esquimalt-council-no-business-licences-for-medical-marijuana-outlets-1.2077920

http://www.timescolonist.com/news/local/esquimalt-council-no-business-licences-for-medical-marijuana-outlets-1.2077920http://www.timescolonist.com/news/local/esquimalt-council-no-business-licences-for-medical-marijuana-outlets-1.2077920http://www.timescolonist.com/news/local/esquimalt-council-no-business-licences-for-medical-marijuana-outlets-1.2077920http://www.timescolonist.com/news/local/esquimalt-council-no-business-licences-for-medical-marijuana-outlets-1.2077920http://www.timescolonist.com/news/local/esquimalt-council-no-business-licences-for-medical-marijuana-outlets-1.2077920http://www.timescolonist.com/news/local/esquimalt-council-no-business-licences-for-medical-marijuana-outlets-1.2077920


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ship, deliver, transport and destroy marihuana. 2 According to the Health Canada website, thereare currently 27 licensed producers in Canada under the MMPRs, six of which are in BC, one ofwhich is located in the Capital Regional District.3

Health Canada issued letters to several BC marihuana dispensaries in September 2015, directingthem to suspend all activities with controlled substances. Those letters suggested that thedispensaries were not licensed producers and that the dispensaries were also in violation of theFood and Drugs Act and the Narcotics Control Regulations. The letters also cautioned that thedispensaries may be exposing customers to criminal liability. Our office received a vetted copyof one such letter from Ms. McColl (attached for reference). We forwarded a copy to the Boardon September 14, 2015.

Based on our review of the above information, the legality of marihuana dispensaries currentlyoperating in Victoria is questionable as they appear to be operating contrary to the MMPRs andother federal legislation.

Marihuana Dispensaries: Recommendations to the Vancouver Police Board

On June 5, 2015, the OPCC received a similar complaint from Ms. McColl regarding theVancouver Police Department’s response to dispensaries in Vancouver. On November 20, 2015,I issued recommendations to the Vancouver Police Board in response to the Board’s decisionwith respect to that complaint. For reference, I have attached to this letter a copy of theVancouver Police Board’s response to Ms. McColl’s complaint and the supporting reasonsauthored by Deputy Chief Constable Lepard. I have also attached a copy of my November 20,2015, recommendations to the Vancouver Police Board, much of which is relevant toMs. McColl’s complaint regarding the Victoria Police.

I specifically draw your attention to our review of the roles and responsibilities of the PoliceBoard and the Chief Constable pursuant to the Police Act and the Police Board Handbook. Alsoparticularly relevant to this matter is our discussion of the law relating to police discretion.Those aspects of my recommendations clarify that chief constables do not have independentdiscretion in their determinations regarding departmental goals, priorities and objectives,general supervision and command, or law enforcement responsibilities. Rather, municipalpolice boards are responsible for determining priorities – though consultation with chiefconstables is required – and are required to provide direction to chief constables with respect tothe administration of justice, supervision and command as well as law enforcement duties andfunctions.

RECOMMENDATIONSHaving reviewed the forgoing materials, it is clear that the Victoria Police Department couldbenefit from further clarity with respect to the Board’s position on the legal status of marihuanadispensaries and how criminal legislation is to be enforced by Victoria police officers. I am of

2 Marihuana for Medical Purposes Regulations, SOR/2013-119, s.12(1)3 http://www.hc-sc.gc.ca/dhp-mps/marihuana/info/list-eng.php

http://www.hc-sc.gc.ca/dhp-mps/marihuana/info/list-eng.phphttp://www.hc-sc.gc.ca/dhp-mps/marihuana/info/list-eng.phphttp://www.hc-sc.gc.ca/dhp-mps/marihuana/info/list-eng.phphttp://www.hc-sc.gc.ca/dhp-mps/marihuana/info/list-eng.php


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the view that the Victoria Police Department could benefit from the creation of a clear andobjective policy in the area of enforcement as it relates to marihuana dispensaries.

It is my view that the policy should be developed with a similar aim as the Vancouver Police

Department’s 2006 Drug Enforcement Strategy, which was to “positively impact [members’]day-to-day policing practice and discretionary application of the law”.... and to “clarify forother stakeholders the rationale for drug-related policing practices in Vancouver, and thespecific relationship between the VPD’s public safety mission and its drug policy.” I alsorecommend that a consultation process with stakeholders prior to the creation of the policy maybe beneficial.

Pursuant to section 173(1)(b) of the Police Act, I recommend that the Victoria Police Boarddevelop and implement policy that addresses the following:

1. A detailed explanation of Victoria Police enforcement priorities with respect todispensaries, including, but not limited to:

a. The criteria related to determining public safety concerns; and

b. The process necessary to engage in enforcement action.

Pursuant to section 173(b) of the Police Act, I recommend that the Board further investigate andexamine my recommendations and comments for the purpose of identifying and developingpolicy where necessary regarding the Victoria Police Department’s approach to marihuanadispensaries.

Sincerely,


Enclosures (4)

cc: Acting Chief Constable Del Manak, Victoria Police DepartmentMs. Pamela McColl


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VANCOUVER POLICE BOARD

P R O V I D I N G I N D E P E N D E N T C I V I L I A N O V E R S I G H T , G O V E R N A N C E . A N D S T RA T E G I C L E A D E R S H I P T O T H E V A N C O U V E R P O L I C E D E P A R T M E N T ,

R E F L E C T I N G T H E N E E D S . V A L U E S A N D D I V E R S I T Y O F V A N C O U V E R 'S C O M M U N I T I E S .

MAY O R GR E GO R R O B E R T S O N . C H A I R

D R . S H E R R I M A G E E . V I C E . C H A I R

C A R O L Y N A S K E W . M E M B E R

B A R J D H A H A N . M E M B E R

M A R K J A M E S , M E M B E R

C L A I R E M A R S H A L L , M E M B E R

T H O M A S T A M . M E M B E R

D R . P E T E R W O N S , ME M B E R

September 21, 2015

Ms. Pamela McColl

182 Furness Street

Vancouver BC

SENT BY EMAIL TO: [email protected]

Dear Ms. McColl:

Re: Service & Policy Complaint - Vancouver Police Board File 2015-112; OPCC

File 2015-10810

Further to my last correspondence of J une 25th, 2015 this letter is to advise you

that the Service and Policy Complaint Review Committee of the Vancouver Police

Board considered your complaint, along with the attached investigation report,

at its meeting on September 17th, 2015.

Your complaint alleges that the Vancouver Police Department is failing in its duty

to maintain law and order by not shutting down all marijuana dispensaries in

Vancouver.

Your complaint was investigated and the attached Report outlines the rationale

for the VPD's response to marijuana dispensaries. As you can see from the

Report, using the criminal law to close marijuana dispensaries is generally

ineffective rases concerns about proportionaity and would constitutea

significant drain on valuable police resources. While Bylaw enforcement can be

an effective tool to shut down a business, the City of Vancouver has opted to

regulate rather than close marijuana dispensaries. In this environment, and

given the need to prioritize police resources, the Chief Constable has determined

that the VPD wil l take enforcement action only where there are overt public

safety concerns.

In light of the information in this Report, the Service & Policy Complaint Review

Committee of the Vancouver Police Board dismissed your complaint.

2120 CAMB IE STREET, VAN COUVER. BC V5Z 4N6 T 604.7 1 7.31 70 F 604.257.3878 E OFF ICE8VAN COUVERPOL ICEB OARD.CA W VANCOU VERPOL ICEBOARD.CA


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VANCOUVER POLICE BOARD

Pursuant to Section 172 (2) of the Police Act, if you are dissatisfied with the

actions of theBoard in this matter you may ask thePoiceComplaint

Commissioner to review them. You have twenty business days from receipt of

this letter to request a review, and you can contact the Commissioner at:

Office of the Police Complaint Commissioner

501, 947 Fort Street

PO Box 9895, Stn Prov Govt

Victoria, BC V8W 9T8

Telephone: (250) 356-7458 or Toll Free: 1-877-999-8707

If you have any questions or concerns about this determination, or the process

that the Vancouver Police Board uses in its oversight of service and policy

complaints, please do not hesitate to contact me directly.

Yours sincerely/

Patfi Marfteet

Executive Director

ec:

Chief Constable Adam Palmer, Vancouver P olice Department

Office of the Police Complaint Commssioner,

Clayton Pecknold, Director of Police Services, Ministry of J ustice and Attorney General


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byla

VANCOUVER POLICE DEPARTMENT

REPORT TO THE VANCOUVER POLICE BOARD

REPORT DATE: September 1, 2015

COMMITTEE MEETING DATE: September 17, 2015

BOARD REPORT # 1509C01Regular

TO: Vancouver Police Board Service and Policy Complaints Review Committee

FROM: Doug LePard, Deputy Chief ConstableCommanding Investigation Division

SUBJECT: Service and Policy Complaint #2015-112 regarding enforcement againstmarihuana dispensaries ____________________________________________________________________________

RECOMMENDATION:

That the Vancouver Police Board Service and Policy Complaints ReviewCommittee dismiss this complaint with reasons.

SUMMARY:

This report responds to a Service and Policy complaint alleging that the Vancouver PoliceDepartment is “failing in their duty to maintain law and order” by not shutting down all marihuanadispensaries in Vancouver. The complaint further alleges that dispensaries have remainedopen because of the lack of VPD enforcement; that the VPD has directed police officers not toact on “signed warrants”; and that the VPD has no authority to exercise discretion on what it willinvestigate or how it prioritizes the use of its resources when criminal offences are alleged.

Marihuana dispensaries are illegal; however, the issue of enforcement against marihuanadispensaries is a complicated one because of intersecting legal, social and political factors. TheCity of Vancouver (“the City”) has decided to regulate rather than close all marihuanadispensaries using its bylaw powers. Using the criminal law to close marihuana dispensaries isgenerally ineffective, raises concerns about proportionality, and is a significant drain on valuablepolice resources that is difficult to justify in the absence of overt public safety concerns. Whenthose concerns exist, the VPD has regularly taken action, including the execution of 11 searchwarrants and multiple charges recommended to Crown since 2013 – these actions have beengenerally ineffective at closing the dispensaries involved. In fact, some of the dispensariesreopened for business shortly after the police executed search warrants; at one location, searchwarrants were executed on three separate occasions. Bylaw enforcement, however, is aneffective tool to shut down a business that isn’t compliant with municipal bylaws, as has beendemonstrated in those Metro Vancouver municipalities without marihuana dispensaries.


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Discretion is an essential feature of the criminal justice system. Individual police officersproperly use discretion every day in making decisions about whether to arrest and chargeindividuals or resolve situations in other ways. Further, the Chief Constable has the discretionto make decisions about how police resources are deployed and what crimes will beinvestigated, as long as this authority is exercised ethically and on justifiable grounds. In thecase of dispensaries, the VPD must consider evolving community standards; the City’s decision

to create a regulatory framework rather than using its bylaws to shut down dispensaries; theprioritization of police resources when weighed against other more serious drug offencesoccurring in Vancouver, and the costs and benefits of taking enforcement action againstmarihuana dispensaries. As a result, the Chief Constable has decided that such actions willonly be taken when there are overt public safety concerns present.

For the reasons summarized above and described in detail in this report, it is recommended thatthis Service and Policy complaint be dismissed with reasons.

POLICY:

The applicable policy and procedure (or legislation) is the Controlled Drugs and Substances Act as well as City of Vancouver property use bylaws.

DISCUSSION:

Background

The current, somewhat chaotic, state of the law regarding medical marihuana is rooted in aseries of appellate court decisions beginning in 2000 involving a constitutional right to accessmedical marihuana.1 As a result, in 2001, the Federal Government introduced the MedicalMarihuana Access Regulations (MMAR), which allowed those with a Health Canada “authorityto possess” to obtain marihuana from a government approved supplier, or approval to grow theirown (“Personal Use Production”), or approval to have someone grow marihuana on their behalf(“Designated Person Production Licence”). But this legislation was fraught with challenges(e.g., overproduction, lack of capacity to inspect, inadequate information sharing with police andmunicipal officials, and unsafe operations that dramatically increased the likelihood of a fire2).There was also considerable confusion over what was legal and what was not; the result wasthe courts waded in and struck down specific sections of the regulations, which Health Canadathen tried to fix, which led to more litigation. In response, in 2013, the Federal Governmentintroduced the Marihuana for Medical Purposes Regulations (MMPR) which became effective inApril 2014, but this legislation was also challenged and aspects of the law remain in a state offlux to this day.

At no time, however, has it ever been legal to sell marihuana from a storefront “dispensary” andthere is no credible commentary to the contrary (although there is certainly confusion in thepublic on their legality). Selling marihuana from a storefront dispensary – regardless of whether

1 See R. v. Parker , 2000 CanLII 5762 (ON CA); Hitzig v. Canada , 2003 CanLII 30796 (ON CA); R. v.

Beren and Swallow , 2009 BCSC 429; Allard v. Canada , 2014 FC 280, affirmed 2014 FCA 298 andR. v. Smith , 2015 SCC 34.

2 See, for example, Eliminating Residential Marijuana Grow Operations – An Alternate Approach by

Surrey Fire Chief Len Garis (http://www.surrey.ca/files/EliminatingResidentialGrowOperations.pdf ), whichfound that “a home with a grow operation is 24 times more likely to catch fire than a typical home.”


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the buyer is permitted to possess it under the medical marihuana scheme – constitutes theoffence of “Trafficking” under the Controlled Drugs and Substances Act , which is federallegislation and part of the body of criminal law in Canada, along with the Criminal Code .

Nevertheless, the changing legal landscapeseems to have been the catalyst for a rapid

increase in storefront marihuana dispensariescatering to both the medicinal and recreationalmarkets. It is clear there is some genuinedemand for marihuana for medical reasons, but itappears Health Canada-authorized suppliershave the capacity to meet the needs of those whohave an authority to possess it for medicalreasons. As one BC prosecutor wryly noted, “Ifyou look at the amount being sold bydispensaries, Vancouver must be the sickest cityin Canada.”3

The reality is that some dispensaries are bothpart of a movement to push for legalization ofmarihuana for any purpose, and are supplyingwhat is obviously a large recreational market. Asnoted by Donald Briere, described by the NationalPost as the “Tim Hortons of cannabis” (and aconvicted drug trafficker) with multiple marihuanadispensaries in Vancouver, “We’re setting this upto be recreational, full on recreational.”4

Further, the dispensaries can only acquire theirmarihuana from illegal sources, as they cannotacquire it from an authorized supplier.5 This notonly supports criminal activity, it damages theinterests of authorized growers, who must complywith rigorous Health Canada rules and provide aquality-controlled product. Their multi-milliondollar investments have been jeopardized bycompetition from illegal dispensaries.6

3 Confidential conversation with the author, July 17, 2015. Of note, of the 37,884 “Authorizations to

Possess” marihuana as at December 31, 2013, almost half of them were held by British Columbians.Information downloaded July 23, 2015 from Health Canada’s website at http://www.hc-sc.gc.ca/dhp-mps/marihuana/stat/index-eng.php.

4 Brian Hutchinson, “The Tim Hortons of cannabis: 63-year-old ‘king’ seeks franchisees to grow his

marijuana empire”, in the National Post , February 8, 2015. Downloaded July 20, 2015 fromhttp://news.nationalpost.com/news/canada/the-tim-hortons-of-cannabis-63-year-old-king-seeks-franchisees-to-grow-his-marijuana-empire.

5 The accompanying image is from p. A1 of The Vancouver Sun on April 23, 2015 and is used with

permission of The Vancouver Sun .

6 See, for example, “Marijuana dispensaries cited as Nanaimo growers lay off employees” by Bruce

Constantineau in The Vancouver Sun , June 26, 2015. Downloaded July 22, 2015 from


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The City had previously adopted a non-enforcement approach to “compassion clubs,” but withthe rapid proliferation of dispensaries beginning in 2013, the VPD and the City had discussionsabout using the city’s bylaws, complemented by police enforcement where appropriate, toaddress this growing number of dispensary operators openly flouting the law. In mid-2013,however, the City made a decision not to enforce its bylaws against marihuana dispensaries,and subsequently began developing a regulatory approach. The VPD acknowledged the City’s

position but remained committed to continuing to take enforcement action against thosedispensaries that generated public safety concerns. The VPD also made clear that the criminallaw was not, on its own, a useful tool to shut a business. The City’s bylaw regime (includingseeking a court injunction when necessary) is an effective tool to close down a non-compliantbusiness, while the criminal law is generally only useful for enforcement against individuals.The VPD took the position that it could not justify the significant resources that would benecessary to launch major investigations to target the owners of dispensaries, rather thanemployees.

A major factor in this decision was the availability of bylaw enforcement to efficiently andeffectively accomplish this goal if the City desired. This could include the use of policeevidence, as has been the practice in the past when businesses operated in such a way as tocreate public safety concerns (e.g., businesses in the Downtown Eastside selling drugs “underthe counter” or buying and selling stolen property). In these circumstances, the VPD wouldgather evidence through various investigative strategies, then present it at a “show cause”hearing by Council into whether theproprietors’ business licencesshould be suspended or cancelled.

Since those discussions, the numberof marihuana dispensaries hasincreased from approximately 27 inJuly 2013 to approximately 100currently. None of the dispensarieshad a business licence to operate amarihuana dispensary – which couldnot be issued to a business sellingan illegal product – although somehad business licences to sell other,legal, products. The dispensaries have been the catalyst for many complaints from the public,as well as formal Service and Policy complaints to the Vancouver Police Board, including theone that is the subject of this report.7

On June 24, 2015, the City’s regulatory scheme to manage marihuana dispensaries wasapproved by Council and Vancouver became the first city in Canada to regulate the sale ofmarihuana from storefront operations. If these new regulations operate as anticipated, they willeventually reduce the number of dispensaries, provide tools to the City to impose restrictions onwhere and how they operate, and reduce the so-called “wild west” situation that currently existsbecause of a lack of regulation and bylaw enforcement.

http://www.vancouversun.com/health/Marijuana+dispensaries+cited+Nanaimo+growers+employees/11170951/story.html.

7 The accompanying image is from page A1 of The Vancouver Sun on June 9, 2015 and is used with



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It is within this complex social and legal environment that the VPD operates. It must strive tofind the right balance between addressing complaints about marihuana dispensaries,recognizing that community sentiments about marihuana (medical or otherwise) are evolving,and using expensive police resources in a proportional and efficient manner to achieve publicsafety objectives.

The Complaint

The complainant is part of an organization called “Smart Approaches to Marijuana Canada,”which could fairly be characterized as being pro-enforcement and anti-liberalization of themarihuana legislation in Canada. Her complaint to the Office of the Police ComplaintCommissioner was forwarded to the Vancouver Police Board on June 12, 2015 and isreproduced below:

On behalf of the citizens of Vancouver who have expressed concern for their safety andthe safety of their personal property we are registering a complaint for the lack ofenforcement by the Vancouver Police Department in upholdmaing [sic] federal laws thatwould have the illegal medical marijuana dispensaries closed and these investigations

brought to either the Office of Civil Forfeiture or the Federal Prosecutors. The VPD hastold the media that they know organized crime is involved in these operations, they knowthat marijuana coming into these stores is coming from the licensees under HealthCanada's Marijuana Program and they are aware that minors are accessing these stores.They are aware that these operations are advertising narcotics which is against the law inCanada. They are aware that parties, including landlords are also breaking laws, by aidingand abetting, and participating in money laundering as are all other suppliers to theseillegal operations. We have had communication with the VPD and we have been told thatthis is not a priority issue or that they do not have the resources to deal with the 93dispensaries that are now operating in Vancouver. Given the magnitude of the problem wedo not accept that these dispensaries should be allowed to continue to operate. Ourorganization has been approached by police officers who have told us that they are beingtold not to act on signed warrants to raid these illegal operations and we are being told

that they have approached the RCMP for assistance in enforcing the laws of Canada inVancouver. The risk to our personal safety is such that many individuals do not feel safeattending City Hall to speak to the matter on June 10th. before Mayor and Council - this isvery sad comment on the state of law enforcement in this country. When citizens feel tooafraid to voice their opinion because of the pot lobby who have been allowed to flourishdue to a lack of willingness of the police to enforce the law. The VPD may have discretionto lay charges but they can not outright disregard the laws of Canada or ignore complaintsfrom the public or requests that they investigate crimes.

On June 24, 2015 the complainant also submitted follow-up information directly to the VPD asfollows:

I am writing to complain about the lack of enforcement of the illegal medical marijuana

dispensaries. It has been brought to my attention that the Police Act does not makeprovision for “prioritizing” enforcement of criminal statures [sic]. There is some latitudefor enforcement of municipal bylaws. My complaint would be that the Vancouver PoliceDepartment did not uphold the criminal statures [sic] pertaining to illegal distribution ofnarcotics and in doing so have failed in their duty to maintain law and order.

Accompanying this information, the complainant provided sections 15(1) and 17 of the PoliceAct , which she purported were supportive of her allegation that the police do not have theauthority to prioritize the use of resources. She then continued her complaint:


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The reason Vancouver has 98+ illegal medical marijuana dispensaries is because thepolice have not done their job. They have stated that it has not been a priority to enforcethe criminal code and force the closure of the pot stores. It is questioned if the police canprioritize to the extend [sic] of non-enforcement of the criminal code of Canada. It maybe[sic] that they are able to do this with municipal bylaws but the wording of the police actwould suggest that they can not outright not enforce the criminal code. All the marijuanadispensaries are conducting illegal business, they are illegally advertising narcotics with a

penalty of $5 million dollars and or a 2 year jail sentence.

By not upholding the laws of Canada the VPD have allowed these operations to flourish,profit from crime, and pose a threat to public safety. They are selling untested product,from unknown sources, they are making false claims of benefit to the sick and they areinvolved in money laundering. They are illegal and they should be shut down. It is a mute[sic] point if the city of Vancouver wants to offer licenses - which they should not be doingas the Vancouver Charter says all busness [sic] operators applying for licenses must becompliant with Federal and Provincial laws. None of these operations meet that criteria.In other regions of the country police enforcement have [sic] protected citizens by closingsuch dispensaries.

The fact that Canada has the highest use of marijuana by youth in the industrialized

world and the established fact that marijuana use for youth is 2.5 x the rate for adults,and the fact that marijuana use is a harmful substance to the developing adolescent brain- this is a priority issue for the number of young lives involved and due to the severity ofthe risks associated with use - some of them that could compromise an individuals [sic]permanently. This is a priority given between 30-53% of grade 12 students in this countryare regular users. It should be enforced as should all criminal statures [sic] to maintainlaw and order and to uphold the credibility of law enforcement. What the city ofVancouver has just done today in voting for licenses is make a laughing stock of themedical profession, and law enforcement.

Analysis

The complaint boils down to the complainant’s beliefs that:

1. The VPD should take active enforcement action against all marihuana dispensaries;

2. Police officers “are being told not to act on signed warrants to raid these illegaloperations”;

3. The dispensaries have been able to remain open because of a lack of VPDenforcement;

4. The VPD cannot disregard requests that it investigate crime; and

5. The Police Act has no provision to allow police to use discretion in prioritizing how itdeploys its resources regarding criminal investigations, therefore no such authorityexists, and thus the VPD has “failed in their duty to maintain law and order.”

Each aspect of the complaint is responded to below:

1. The VPD should take active enforcement action against all marihuana dispensaries;

The complainant’s first assertion is premised in part on her belief set out in point number 3, i.e.,that police enforcement action will shut down a marihuana dispensary. This is incorrect. In fact,


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since 2013 the VPD has executed 11 search warrants against marihuana dispensaries. Themost recent warrant was executed on August 12, 2015. These were dispensaries in which thecircumstances were such that they allegedly rose to a threshold the VPD has been open andtransparent about being unacceptable. Included are public safety concerns such as selling tominors, violence, or the involvement of other criminal activity. In such cases, the VPD will takeenforcement action. In fact, the VPD has recommended 23 charges against 11 suspects to the

Public Prosecution Service of Canada (PPSC) arising from these 11 search warrant executions.Sixteen charges have been approved and charges are pending for several additional cases.What is important to understand, however, is that the criminal law is generally not impactful inshutting down an illegal business.

Further, while the VPD can recommend charges, it is the PPSC which makes the final decision.There is often a delay in charges being approved while PPSC considers the evidence, and alsobecause Health Canada’s capacity to provide the analysis of such items as “edibles,” which isnecessary for charges to be approved, is extremely limited. This causes significant delays inthe charge approval process.

It is important to note that a charge being approved only means that an individual working in thedispensary is charged (with the likely result upon conviction being a fine); this will not close adispensary. Further, the use of the criminal law against a dispensary employee raises concernsabout the proportionality in the circumstances, given the significant impact of a criminalconviction. The reality is that the multiple search warrants executed and charges recommendedhave generally not resulted in dispensaries shutting down; in. For this to happen, the City wouldneed to have enforced its bylaws following the police enforcement action, and this has notoccurred. In fact, at one location, search warrants were executed on three separate occasionsand the dispensary simply reopened after each enforcement action. Now that the City hasapproved a regulatory scheme, it is expected that dispensaries that operate in a manner whichgenerates police enforcement action will also not be in compliance with the City’s newregulations, which can be used to shut them.

2. Police officers “are being told not to act on signed warrants to raid these illegaloperations.”

On one occasion in 2015, several Patrol officers obtained a search warrant but did not followestablished, written VPD policy on obtaining search warrants for marihuana dispensaries. Thispolicy includes a requirement to consult with the Organized Crime Section, which has theexpertise necessary to ensure such investigations are conducted appropriately. As a result, thewarrant was not executed. Every other search warrant obtained by the VPD since 2013 tosearch a marihuana dispensary has been executed.

3. The dispensaries have been able to remain open because of a lack of VPDenforcement.

As described earlier, enforcement of the criminal law is not an effective tool to close amarihuana dispensary. The complainant and others are misinformed in their belief that VPDenforcement alone will effectively shut down marihuana dispensaries; this has not been theexperience in Vancouver. And several municipalities in the Lower Mainland that do not havedispensaries, or which have shut down dispensaries, have achieved this result through


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enforcement of municipal bylaws, not police actions alone, according to a canvas of jurisdictional police agencies conducted by the VPD.8

For example, the City of Abbotsford does not support dispensaries. The one dispensary thatopened was issued a cease and desist letter from the municipality and if it does not comply thebylaw enforcement process will begin. The

Corporation of Delta does not supportdispensaries and does not currently have any.One store attempted to open and Delta denied ita business licence and informed the store itwould enforce licencing bylaws if they soldmarihuana. In New Westminster, there arecurrently no marihuana dispensaries and the cityis prepared to enforce its bylaws to shut storesdown. Surrey currently has no dispensaries andhas purportedly taken the position it will activelyenforce licencing bylaws to close any that mightopen.

The Vancouver Sun has reported that “BothNorth Vancouver District and Surrey have passedzoning bylaws to prohibit the marijuanadispensaries.”9 North Vancouver District’s bylaw

– an amendment to an existing bylaw – wasenacted on May 26, 2014.10 Surrey has had abylaw regarding production and distribution of marihuana since 2011, along with relatedamendments to other bylaws; however, while there are currently no dispensaries in Surrey, theirbylaws would, in fact, hypothetically permit them in one “zone” of Surrey.

However, the proponent would need Council approval, and the zone is in fact a single lot ownedby the City of Surrey and in use as a parking lot; dispensaries are banned anywhere else inSurrey.11

In contrast, in Victoria, the city has chosen not to enforce its bylaws and, according to variousmedia reports, there are currently approximately 20 marihuana dispensaries there. The mayorof Victoria has spoken in favour of emulating the regulatory approach taken by Vancouver.12

8 Canvas conducted by Inspector Mike Serr, VPD Organized Crime Section, and concluded July 6, 2015.

9 Kelly Sinoski, “British Columbia a ‘no man’s land’ in terms of pot,” The Vancouver Sun , May 14, 2015, p.

A1 and A14. The accompanying image is from page A1 of The Vancouver Sun on May 14, 2015 and is

used with permission of The Vancouver Sun .10

The District of North Vancouver Rezoning Bylaw 1308 (Bylaw 8047), Document 2276707.

11 See Surrey Medical Marijuana Production and Licensing Regulation By-law, 2011, No. 17410. Also

see Surrey Zoning By-law, 1993, No. 12000, which, as reported In Council minutes of June 13, 2011, wasamended “to include a marihuana dispensary as a permitted use under Part 36B Community CommercialB Zone.” Surrey Corporate Reports 2011-R104 and 2011-R105 provide a full discussion of the matter.Zoning Bylaw 12000, Part 36B, p. 409 sets out that the only zone a dispensary could be approved in isthe C-8B Zone at 13535 King George Boulevard.


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4. The VPD cannot disregard requests that it investigate crime.

The VPD does not “disregard” any requests that it investigate crime, but it does not necessarilyfollow that there will be an investigation. When it comes to marihuana dispensaries, the ChiefConstable must decide how to prioritize the use of expensive resources so as to achieve thebest results regarding public safety and has the discretion to decide what is investigated.

To understand the resource implications of conducting an investigation into a marihuanadispensary, the following example is illustrative. It summarizes a 2014 investigation whichresulted in four charges against two accused parties:

• Information was received that a new business with a permit to sell food was allegedlyselling dried marihuana and edibles, and also had marihuana plants growing in thepremises.

• Four Organized Crime Section detectives conducted the investigation leading to asearch warrant.

•

The detective who prepared the “Information to Obtain” a search warrant (known as the“affiant”) required 30 hours to complete this document.

• Executing the search warrant required a full day from ten detectives and one ForensicIdentification Unit member (110 hours total).

• After the search warrant had been executed, follow up warrants and investigation wererequired to gather additional evidence, adding another 30 hours of police time.

• Two exhibit officers required a combined total of 160 hours to process for evidence over250 seized exhibits.

•

It took three months for Health Canada to provide the necessary “Certificates ofAnalysis” required for charge approval by Crown counsel. (Health Canada has thecapacity to analyze 30 marihuana plant samples per day on average, but only onemarihuana edible sample per day.)

• The detective who authored the Report to Crown Counsel recommending chargesrequired 120 hours to complete it. (This report wasn’t submitted until eight months afterthe search warrant execution because of investigative priority given to projects focusedon Fentanyl trafficking, which had been associated with several overdose deaths).

• A civilian investigative assistant required another 40 hours to complete the disclosurepackage for the Public Prosecution Service of Canada.

In total, 560 hours of police time was required for a single investigation, with a value of over$34,000 in pay and benefits. Or stated another way, the investigation required the equivalent ofone officer working full-time for approximately three months.

Given the significant resource commitment and other factors considered, Chief ConstablePalmer (and before him, Chief Constable Chu) has been open and transparent in stating the

12 Bill Cleverley, “Victoria likely to follow Vancouver's lead on marijuana, mayor says”, Times Colonist ,

June 25, 2015, p. B8.


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VPD’s position that marihuana dispensaries are not a high priority for drug enforcement in theabsence of overt public safety concerns, considering the much higher risk to public safety posedby violent and predatory drug traffickers, and by highly toxic drugs such as Fentanyl.

As summarized earlier, the VPD considers several factors before taking enforcement actionagainst marihuana dispensaries, such as whether children are being sold to and whether there

is violence associated with a particular dispensary. For example the last three enforcementactions taken in April, July and August 2015 were because of public safety concerns brought tothe attention of police. In the first incident, a 15-year-old was hospitalized after allegedlypurchasing edible marihuana products from the store. In the second, marihuana was allegedlytraded by the proprietor for stolen property, contributing to property crime. In the third, a warrantwas executed because of information that the dispensary had allegedly been selling to youthsand was associated to the Hells Angels.

The VPD’s drug enforcement priority remains focused on violent drug traffickers and those whoprey on youth and the marginalized in our community. The VPD will continue to respond toconcerns and take incremental steps to decide if further investigation or enforcement action isrequired. Officers have the ability to use their discretion and ensure that any police response isproportionate to the circumstances. (The VPD has responded in the past to a Service andPolicy Complaint and set out its position on enforcement against marihuana dispensaries.13)

5. The Police Act has no provision to allow police to use discretion in prioritizing how itdeploys its resources regarding criminal investigations, therefore no such authorityexists, and thus the VPD has “failed in their duty to maintain law and order.”

This assertion is misinformed and completely incorrect. That the Police Act does not include aclause setting out the police authority to use discretion in prioritizing resources is not evidencethat no such discretion exists. The authority of police officers, generally, to use discretion, andspecifically the authority of the Chief Constable to make overarching policy decisions about thedeployment of police resources, is derived from both statutes (e.g., the Criminal Code , thePolice Act ) and a significant body of law. Briefly, the authority to arrest on reasonable groundsto believe a criminal offence has occurred does not create a requirement to arrest; it providesthat a police officer may arrest. The importance of the exercise of discretion in policing cannotbe overstated. The objectives of responding proportionately cannot be achieved without the useof discretion, which would otherwise mean charging every person with every offence for whichevidence existed.14

In terms of the common law and the authority of the Chief Constable, the Courts haverecognized for many years that the Chief Constable has considerable authority to decide whatwill be investigated and who will be charged15 in making decisions on how to prioritize the use of

13

Available at http://vancouver.ca/police/policeboard/agenda/2013/1015/SPAgenda.pdf.14

In some cases, however, police are subject to policies that specifically direct that discretion NOT beexercised. For example, the Provincial Violence Against Women in Relationships (VAWIR) Policy directsthat where evidence to arrest exists, police officers should not use their discretion to not arrest, given theimportance of a pro-arrest approach to domestic violence.

15 In B.C., it would be more accurate to say “who will be recommended to be charged,” since B.C. is a

“charge approval” jurisdiction in which Crown counsel decides which recommended charges will beapproved for prosecution.


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resources. Further, contrary to a misapprehension held by many, municipal police departmentsneither report to the municipality’s city manager nor are they accountable to its Council.16 Municipal police departments in B.C. are products of the Police Act and are governed andaccountable to civilian police boards. Among other duties, the Police Board exists to “act as abuffer to ensure that the police are not subject to political interference.”17 The municipality’sduty is to provide adequate funding, not direct police operations, although ideally there is a

collaborative relationship with senior municipal staff. (This is certainly the case in Vancouver;notwithstanding that neither Vancouver Council nor city staff may direct the police, the VPDrecognizes the importance of carefully considering the views and policies of democraticallyelected Councils which represent the public and bear the significant costs of policing.)

The seminal case on the operational independence of the Chief Constable is the 1968 caseknown as Blackburn.18 A relevant portion of Lord Denning’s judgment (at p. 769) is as follows:

I have no hesitation, however, in holding that, like every constable in the land, he [theCommissioner of Police] should be, and is, independent of the executive...I hold it to bethe duty of the Commissioner of Police, as it is of every chief constable, to enforce thelaw of the land. He must take steps so to post his men that crimes may be detected; andthat honest citizens may go about their affairs in peace. He must decide whether or not

suspected persons are to be prosecuted; and, if need be, bring the prosecution or seethat it is brought; but in all these things he is not the servant of anyone, save of the lawitself. No Minister of the Crown can tell him that he must, or must not, keep observationon this place or that; or that he must, or must not, prosecute this man or that one. Norcan any police authority tell him so. The responsibility for law enforcement lies on him. Heis answerable to the law and to the law alone.

There has been a long line of cases and reports since Blackburn that discuss police discretion,and more recently the role of civilian oversight bodies in setting a policy framework for themanner in which enforcement will occur;19 invariably the Lord Denning quote above is cited.20 In2007 the Supreme Court of Canada, in Beaudry ,21 discussed police discretion extensively,noting at p. 196:

16 See, for example: Kevin Griffin, “Downtown Vancouver building to lose insurance when pot dispensary

moves in,” The Vancouver Sun , April 4, 2015, downloaded July 29, 2015 fromhttp://www.vancouversun.com/health/Downtown+Vancouver+building+lose+insurance+when+dispensary+moves/10942201/story.html. Some might draw the inference from comments in this article that the Citywas directing police to take action following complaints, but municipal police departments are not directedby or accountable to municipal councils or staff.

17 Ministry of Public Safety and Solicitor General Policing and Community Safety Branch Police Services

Division, “BC Police Board Resource Document on Roles and Responsibilities Under the Police Act”.

18 R. v. Metropolitan Police Commissioner , [1968] 1 All E.R. 763 (C.A.)

19

For a helpful analysis, see the chapters on Independence of the Constabulary and Independence ofIndividual Constables in: Paul Ceyssens, “Legal Aspects of Policing”, Earlscourt Legal Press, Inc. (March2011 update).

20 See, for example, the section on “The independence of the police force” at pp. 56-58 of The

Independent Civilian Review into Matters Relating to the G20 Summit (commonly referred to as the“Morden Report”). The Morden Report refers to the “very important common law principle relating topolice independence” and cites the 1999 Supreme Court of Canada decision R. v. Campbell , which inturn cites the Lord Denning quote above. Report available at www.tpsb.ca/g20/ICRG20Mordenreport.pdf.

21 R. v. Beaudry , [2007] 1 S.C.R.


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The fact that police discretion is an essential component of both our criminal justicesystem and the work a police officer is not in issue. This discretion makes it possible toapply the law more fairly in real-life situations faced by the police.

At p. 208, the Court noted that while police officers have a duty to enforce the law andinvestigate crimes:

Nevertheless, it should not be concluded automatically, or without distinction, that thisduty is applicable in every situation. Applying the letter of the law to the practical, real-lifesituations faced by police officers in performing their everyday duties requires that certainadjustments be made. Although these adjustments may sometimes appear to deviatefrom the letter of the law, they are crucial and part of the very essence of the properadministration of the criminal justice system…The ability – indeed the duty – to use one’s judgment to adapt the process of law enforcement to individual circumstances and to thereal-life demands of justice is in fact the basis of police discretion. What La Forest J. saidin R. v. Beare …is directly on point here: “Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkablycomplex and rigid.”

The governing principles discussed above have also arisen for consideration in the policecomplaint process. In the course of dismissing a complaint that a police officer failed todischarge his duty to enforce the law by declining to lay a criminal charge after an assault, theAlberta Law Enforcement Review Board confirmed that room for discretion remains even wherea police officer has reasonable grounds to believe that an offence has occurred:22

[I]f an officer is satisfied that grounds are present to charge he/she may exerciseofficer discretion to lay such charges as are warranted. An officer may also besatisfied that grounds to charge are present, but for bona fide reasons nocharges will be laid. In this respect a police officer exercises a wide authority andis entitled to consider alternatives to charging when such alternatives serve thepublic interest and those of good order. In this context an officer who declines to

lay charges, when grounds are present, is not in violation of [the] duty to enforcethe law (see, R. v. Beare ...). It is clear, however, that the seriousness of anincident is a relevant consideration in the context of charging. The more seriousthe matter the less room there exists to exercise discretion. By way of example,a very trivial shoplifting permits far more opportunity for the application ofdiscretion than an armed robbery with violence.

The limit on the operational authority of a Chief Constable to deploy resources as he or shesees fit, or an individual constable to make an arrest, is that the exercise of this discretion mustbe conducted honestly and on the basis of objective factors. In other words, discretion cannotbe exercised as a mechanism to provide preferential treatment (as was the allegation inBeaudry ) or without a logical rationale, such as the need to prioritize resources so as to have

the greatest impact on providing public safety. It is the duty of the Chief Constable to deployresources so as to best achieve public safety in an efficient manner. Further, in making thisdetermination, the Chief Constable must consider the policing environment, which includescommunity standards and whether enforcement will create more harm than good.

22 Rolls v Matsune (1998) 7 ALERBJ 190 at 199-200.


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For example, the VPD has taken a position on the enforcement of prostitution laws whichemphasizes a problem-solving approach with criminal charges against sex workers only as alast resort; this is a dramatic shift from previous decades when the VPD made hundreds ofarrests for prostitution offences. The VPD’s position on the importance of discretion in theenforcement of prostitution laws is set out in formal guidelines,23 which were described by theMissing Women Commission of Inquiry as “…a model of community policing at its best.”24

Another example is the VPD’s position on managing public demonstrations. Again, the VPDhas clear guidelines rooted in the law, practicality, and the VPD’s principles, includingproportionality.25 As was discussed during a presentation on managing public demonstrationsat the Police Board’s June meeting, there are a range of options available from rigid andaggressive enforcement of the law, to a patient, problem-solving approach that reduces thelikelihood of violent conflict.

Discretion is also an important element in policing in communities where there is a high level ofcriminality among a marginalized population. For example, in the Downtown Eastside, in 2003,the VPD made a decision to treat simple possession of narcotics as primarily a health issue,rather than a criminal matter, especially given the police time consumed writing reports andtagging exhibits but resulting in little impact on the overall problem. Instead, the VPD decided tofocus its resources on predatory traffickers and to direct addicts openly using narcotics to the(then) new Insite Supervised Injection Site. Police officers in the Downtown Eastside (andelsewhere) must use discretion every day in finding the right balance between enforcement oflaws and other methods to provide public safety. Notably, in commenting on policing in theDowntown Eastside, the Missing Women Commission of Inquiry recommended that the VPDdevelop “guidelines to facilitate greater and more consistent use of police discretion not to laycharges”.26

A final example is the VPD’s response to young people engaged in consensual “sexting” ofintimate photos of other young people. Technically, this could constitute the criminal offence ofdistribution of child pornography. Rather than unnecessarily criminalizing such behaviour, theVPD’s Youth Services Section has recently developed an award-winning diversion program thatis focused on education rather than punishment.27

Each of these approaches takes into consideration the environment in which the VPD polices;community standards; and consideration of what is the best approach to achieve public safetygoals in a manner consistent with the VPD’s written principles around justification,proportionality, and intrusiveness.

23 Available at http://vancouver.ca/police/assets/pdf/reports-policies/sex-enforcement-guidelines.pdf.

24

British Columbia. Missing Women Commission of Inquiry. Forsaken: the report of the Missing WomenCommission of Inquiry / Wally T. Oppal, Commissioner. Volume III, p. 102.

25 Available at http://vancouver.ca/police/assets/pdf/reports-policies/public-demonstration-guidelines.pdf.

26 British Columbia. Missing Women Commission of Inquiry. Forsaken: the report of the Missing Women

Commission of Inquiry / Wally T. Oppal, Commissioner. Volume III, p. 106.

27 In August 2015, this program was awarded the 2015 Federal Minister of Justice National Youth Justice

Policing Award.


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In the case of marihuana dispensaries, the VPD’s approach is consistent with its principles andresponsibility to use expensive police resources wisely. With respect to community standards, itis notable that in a recent survey conducted byInsights West, there was strong community support inBC (67%) and Metro Vancouver (65%), respectively,for the regulatory approach taken by the City.28

Further, notable public health figures such asVancouver’s Chief Medical Officer, Dr. Patty Daley;29 provincial Health Minister Terry Lake;30 renownedHIV/AIDS researcher Dr. Julio Montaner;31 and drugpolicy expert and criminologist Professor Neil Boyd32 have each spoken in support of the City’s regulatoryapproach to marihuana.33

CONCLUSION:

Marihuana dispensaries are illegal. Those engaged inselling marihuana from a dispensary are committingcriminal offences under the Controlled Drugs andSubstances Act . This is true whether the marihuana isbeing sold for medicinal or recreational purposes, and whether or not the buyer has anauthorization to possess. As a police agency, the VPD cannot condone criminal conduct.However, Vancouver Council’s approval of a regulatory scheme to manage marihuanadispensaries, rather than using its bylaws to seek to close them outright, is the policy goal it haspursued, with considerable support from the public and health officials. The VPD must considerthe City’s policy objectives, as well as community standards, public safety concerns, other

28 Kevin Griffin, “Most support city’s pot shop regulations, survey finds,” in The Vancouver Sun ,

Wednesday July 8, 2003, p. A3.29

Jeff Lee and Peter O’Neil, “Marijuana showdown deepens as Vancouver sends regulation proposal topublic hearing” in The Vancouver Sun , June 18, 2015. Downloaded July 20, 2015 fromhttp://www.vancouversun.com/health/Marijuana+showdown+deepens+Vancouver+sends+regulation+proposal+public+hearing+with+video/11010952/story.html.

30 Ian Bailey and Justine Hunter, “B.C. Health Minister backs Vancouver’s pot dispensary changes” in The

Globe and Mail , April 30, 2015. Downloaded July 21, 2015 fromhttp://www.theglobeandmail.com/news/british-columbia/bc-health-backs-vancouvers-pot-dispensary-changes/article24178906/

31 Thomas Kerr and Julio Montaner, Special to the Sun, “Ottawa out of step with Canadians on cannabis

prohibition” in The Vancouver Sun , April 28, 2015. Downloaded July 20, 2015 fromhttp://www.vancouversun.com/health/Opinion+Ottawa+step+with+Canadians+cannabis+prohibition/11008959/story.html.

32 Peter O’Neil and Jeff Lee, “Ottawa blasts Vancouver’s pot shop plans – Health Minister Rona Ambrose

sends letter to mayor, warning dispensaries are illegal” in The Vancouver Sun , April 24, 2015.Downloaded July 20, 2015 fromhttp://www.vancouversun.com/news/Ottawa+blasts+Vancouver+shop+plans/10998127/story.html.

33 The accompanying image is from p. A3 of The Vancouver Sun on July 8, 2015 and is used with



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policing priorities, and impacts on police resources in making decisions about enforcement ofcriminal laws.

Deploying police resources to criminal enforcement against marihuana dispensaries wherethere is no overt public safety issue, in the current circumstances in Vancouver, is generally notan effective, efficient or proportional use of police resources. If the City’s regulatory framework

is successful, the number of dispensaries should be reduced and the more problematic oneseliminated. However, where there are public safety concerns that rise to the thresholds theVPD has set, enforcement action has been taken: since 2013, the VPD has executed 11 searchwarrants and has recommended charges against multiple individuals, which are currently atvarious stages of the charge approval and/or court process. This approach will continue, anddemonstrates an appropriate, lawful, harm-based approach to prioritizing the deployment ofpolice resources to address public safety concerns.

Therefore, for the reasons described in this report, I recommend this service and policycomplaint be dismissed with reasons.

Author: Deputy Chief D. LePard Telephone: 604-717-3089 Date: 2015-09-01

Submitting Executive Member:

Date: 2015-09-01


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Office of the




5th Floor, 947 Fort StreetPO Box 9895 Stn Prov Govt

Victoria, British Columbia V8W 9T8Tel: (250) 356-7458 Fax: (250) 356-6503

Toll Free 1 877-999-8707 Website: www.opcc.bc.ca

OPCC GEN-2B 20141007

November 20, 2015 OPCC File No. 2015-10810

VIA E-MAIL: [email protected]

His Worship Mayor Gregor RobertsonChair, Vancouver Police Board3rd Floor, City Hall453 West 12th AvenueVancouver, BC V5Y 1V4

Dear Mayor Robertson,

Re: Service or Policy Complaint

On September 21, 2015, the Office of the Police Complaint Commissioner (OPCC) received acopy of your concluding letter to Ms. Pamela McColl dated September 21, 2015. That letterdismissed Ms. McColl’s complaint and advised:

While Bylaw enforcement can be an effective tool to shut down a business, the City ofVancouver has opted to regulate rather than close marihuana dispensaries. In this environment,and given the need to prioritize police resources, the Chief Constable has determined that theVPD will take enforcement action only where there are overt public safety concerns.

Your letter also attached an investigation report, authored by Vancouver Police Deputy ChiefConstable Lepard (hereafter referred to as “the Report”), which outlined the investigation intoMs. McColl’s complaint and provided reasons for its dismissal.

Upon review of your letter and the Report, we requested further background information fromyour office and the Vancouver Police Department (VPD). Your office provided copies ofrecommendations to Vancouver City Council for regulating Marihuana Retail Dealers and theVancouver City Bylaws that were amended on June 24, 2015, as a result of thoserecommendations. The VPD provided copies of materials referenced in the Report, includingthe VPD’s September 2006 Drug Policy, the City of Vancouver’s “Four Pillars” drug strategy, a

July 9, 2014, Marihuana Enforcement Bulletin and emails from VPD executive to all VPDOperations Inspectors and Acting Inspectors. Those emails provided direction with respect tothe VPD’s position on enforcement of Marihuana dispensaries.

mailto:[email protected]:[email protected]:[email protected]:[email protected]


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Office of the



The OPCC acknowledges the City of Vancouver’s decision to adopt a regulatory framework inorder to address the issue of illegal marihuana dispensaries. However, after reviewingMs. McColl’s complaint and the materials related to the Board’s decision, it is apparent thatenforcement of criminal legislation remains an important component of the City’s approach to

this issue, but there remains a gap in policies with respect to how police enforcement will fulfillthis role. It is also apparent that there is a lack of clear, objective policy to guide officers in theirday-to-day enforcement responsibilities.

Section 173 of the Police Act states:

(1) Subject to subsection (2) of this section, whether or not the person who made the complainthas requested a review under section 172 (2) [if investigation or study is initiated under section171] the police complaint commissioner may do any of the following:

(a) Review the decisions of a board under section 172;

(b) Recommend to the board further investigation, study, courses of action or changes to

service or policy(c) Make recommendations to the director under section 177(4)(e) [general responsibilityand functions of Police Complaint Commissioner].

BOARD’S REASONS FOR DECISION

Criminal Legislation and Search Warrants

The Report outlines several grounds for dismissing Ms. McColl’s concerns about the lack ofVPD enforcement with respect to marihuana dispensaries, the first of which is the assertion thatcriminal enforcement action is “generally not impactful in shutting down illegal businesses.”The report also suggests that “a charge being approved only means that an individual working

in the dispensary is charged (with the likely result upon conviction being a fine); this will notclose the dispensary.”

In response to Ms. McColl’s allegation that VPD officers are being told not to act on a signedwarrant, the Report states that all warrants issued since 2013 have been executed, except one.The Report explains:

On one occasion in 2015, several Patrol officers obtained a search warrant but did not followestablished, written VPD policy on obtaining search warrants for marihuana dispensaries. This policy includes a requirement to consult with the Organized Crime Section, which has theexpertise necessary to ensure such investigations are conducted appropriately. As a result, thewarrant was not executed.

Police Discretion

A significant aspect of the Report discusses police discretion, both in the context of theallocation of police resources and in the context of the individual discretion of each policeofficer in the performance of his or her duties. With respect to the allocation of resources, theReport states:


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Office of the



The VPD does not “disregard” any requests that it investigate crime, but it does not necessarily follow that there will be an investigation. When it comes to marihuana dispensaries, the ChiefConstable must decide how to prioritize the use of expensive resources so as to achieve the bestresults regarding public safety and has the discretion to decide what is investigated.

…In terms of the common law and the authority of the Chief Constable, the Courts haverecognized for many years that the Chief Constable has considerable authority to decide whatwill be investigated and who will be charged15 in making decisions on how to prioritize the useof resources. Further, contrary to a misapprehension held by many, municipal policedepartments neither report to the municipality’s city manager nor are they accountable to itsCouncil. Municipal police departments in B.C. are products of the Police Act and are governedand accountable to civilian police boards. Among other duties, the Police Board exists to “act asa buffer to ensure that the police are not subject to political interference.” The municipality’sduty is to provide adequate funding, not direct police operations, although ideally there is acollaborative relationship with senior municipal staff.

The Report states that the authority to use discretion, both generally for officers, and,“specifically the authority of the Chief Constable to make overarching policy decisions aboutthe deployment of police resources, is derived from both statutes (e.g. the Criminal Code, thePolice Act) and a significant body of law.” The report cites R. v. Metropolitan Police Commissioner(a.k.a. Blackburn), a 1968 decision from the British House of Lords, R. v. Beaudry, a 2007 casefrom the Supreme Court of Canada and Rolls v. Matsune, a 1998 decision from the Alberta LawEnforcement Review board. Blackburn is cited as the foundation for the “operationalindependence” of the Chief Constable. Beaudry is cited as standing for the proposition thatdiscretion is an “essential component of the criminal justice system”, without which the systemwould be “unworkably complex and rigid.” The Report cites Matsune as support for the notionthat discretion exists even where the officer has reasonable grounds to believe an offence hasoccurred.

The Report also discusses the limits on the Chief Constable’s discretion regarding how he or shewill deploy the department’s resources:

… the exercise of this discretion must be conducted honestly and on the basis of objective factors. In other words, discretion cannot be exercised as a mechanism to provide preferentialtreatment (as was the allegation in Beaudry) or without a logical rationale, such as the need to prioritize resources so as to have the greatest impact on providing public safety. It is the duty ofthe Chief Constable to deploy resources so as to best achieve public safety in an efficient manner.Further, in making this determination, the Chief Constable must consider the policingenvironment, which includes community standards and whether enforcement will create moreharm than good.


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VPD Drug Enforcement Strategy

The Report explains the VPD’s drug enforcement strategy, which focuses on public safetyconcerns. As noted above, the Report refers to “written policy” with respect to obtaining searchwarrants. The Report also discusses three enforcement actions from 2015:

…the VPD considers several factors before taking enforcement action against marihuanadispensaries, such as whether children are being sold to and whether there is violence associatedwith a particular dispensary. For example the last three enforcement actions taken in April, Julyand August 2015 were because of public safety concerns brought to the attention of police. Forexample the last three enforcement actions taken in April, July and August 2015 were becauseof public safety concerns brought to the attention of police. In the first incident, a 15-year-oldwas hospitalized after allegedly purchasing edible marihuana products from the store. In thesecond, marihuana was allegedly traded by the proprietor for stolen property, contributing to property crime. In the third, a warrant was executed because of information that the dispensaryhad allegedly been selling to youths and was associated to the Hells Angels.

Conclusion

The Report concludes that the VPD cannot condone criminal conduct, but it must also considerthe City’s objectives, community standards, public safety, policing priorities and impacts onpolice resources when deciding whether to enforce criminal laws. The VPD will continue itsapproach in deploying resources only in circumstances where there is a public safety issue.

OPCC REVIEW OF RELEVANT MATERIALS

Roles and Responsibilities: The Police Board and the Chief Constable

I. The Police Act

The Police Act provides that the responsibility for law enforcement lies with a municipal policedepartment, under the direction of the police board. However, the responsibility fordetermining the goals, priorities and objectives of a municipal police department lies with thepolice board, in consultation with the Chief Constable.

Section 26(2) of the Police Act

(2) The duties and functions of a municipal police department are, under the direction of themunicipal police board, to

(a) enforce, in the municipality, municipal bylaws, the criminal law and the laws ofBritish Columbia,

(b) generally maintain law and order in the municipality, and(c) prevent crime.

…

(4) In consultation with the chief constable, the municipal police board must determine thepriorities, goals and objectives of the municipal police department.


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(5) The chief constable must report to the municipal police board each year on theimplementation of programs and strategies to achieve the priorities, goals and objectives.

Section 34 of the Police Act

(1) The chief constable of a municipal police department has, under the direction of themunicipal police board, general supervision and command over the municipal policedepartment and must

(a) exercise powers and perform duties assigned to the chief constable under and inaccordance with this Act and any other enactment, and

(b) ensure compliance with the director's standards as they relate to the municipal policedepartment.

(2) The municipal police department, under the chief constable's direction, must perform theduties and functions respecting the preservation of peace, the prevention of crime andoffences against the law and the administration of justice assigned to it or generally to peaceofficers by the chief constable, under the director's standards or under this Act or any otherenactment.

II.

Police Board Handbook

The Handbook for Police Boards in BC (hereafter referred to as “the Handbook”)1 states thatpolice boards are a civilian accountability mechanism that work to “ensure that there is a highstandard of policing and that the interaction between police and the community is fair andresponsive” (section 1.0). The Handbook also clarifies the respective roles and responsibilities ofmunicipal police boards and chiefs of police. A review of Sections 3.0 and 9.0 of the Handbookdemonstrates that municipal police boards are responsible for the objectives and priorities of

the municipal department. However, the relationship between the Board and the Chief shouldbe one of collaboration. At section 9.3, the Handbook states:

Although the tone and language of legislation and regulations are formal and directive, inreality the relationship between the municipal police board and the Chief Constable is muchmore collaborative. The relationship is similar to that of a board of directors of a company inrelation to the Chief Executive Officer. The board’s role is to set general policies, to establish avision regarding how and what policing services are provided in the municipality and to beultimately accountable to the community for the provision of police services. The Chief’s role isto manage the department on a daily basis to ensure that the board’s vision and direction are put into action and to bring high-level policy issues to the attention of the board.

Police Duties and Discretion

It is important to consider the statutory duties of municipal police boards, departments andchief constables in determining the scope of police discretion. Section 26 and section 34 of Police Act indicate that chief constables do not have independent discretion in their determinations

1 British Columbia, Ministry of Public Safety and Solicitor General Policing and Community Safety Branch Police Services

Division, “BC Police Board Resource Document on Roles and Responsibilities under the Police Act” (2005)


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regarding departmental goals, priorities, and objective, general supervision and command, orlaw enforcement responsibilities. Rather, municipal police boards are responsible fordetermining priorities – though consultation with chief constables is required – and arerequired to provide direction to chief constables with respect to the administration of justice,

supervision and command as well as law enforcement duties and functions.

The cases cited by the Report are instructive with respect to police discretion. However, theprinciples cited from Blackburn are inconsistent with the legislative framework for policing inBC. Whereas Lord Denning notes that the Metropolitan Commissioner of the Police is notanswerable to the Crown or any police authority, municipal chiefs of police in BC areanswerable to their boards.

It is also important to note that Beaudry was a case in which a police officer, Beaudry, wascharged with obstructing justice for deliberately failing to gather evidence to lay criminalcharges against another police officer who had been operating a motor vehicle while

intoxicated. Beaudry was convicted of obstructing justice after the Court rejected his positionthat his decision not to investigate and lay charges was a proper exercise of his discretionarypower. While the Court in Beaudry did note that discretion is an essential feature of the criminal

justice system, Beaudry stands for the principle that discretion is not absolute, but must beexercised reasonably. The Court found that officer’s discretion “must have been exercisedhonestly and transparently, on the basis of valid and reasonable grounds” and “must also be

justified on the basis of objective factors” (paragraphs 38 and 39).

With respect to the principle from Matsune cited in the Report , it is important to note that thecontext is as important as the principle. Any exercise of discretion not to charge wherereasonable grounds existed must be assessed using the reasonableness test outlined in Beaudry.

City of Vancouver Regulation of Marihuana Dispensaries

Five Vancouver Bylaws were amended on June 24, 2015, creating a regulatory framework toaddress the issue of illegal marihuana dispensaries in Vancouver. Those amendments werebased upon April 21, 2015, recommendations to the Vancouver City Council by the ChiefLicense Inspector and the General Manager of Planning and Development Service. Upon reviewof the amendments and the recommendations, it is apparent that the Vancouver PoliceDepartment plays an important role in the City’s approach to marihuana dispensaries.

The City’s framework relies on its jurisdiction with respect to business licenses and appropriateland use. Marihuana dispensaries are regulated and controlled via business license regulations,

land use and distancing regulations and operational regulations. A framework was also createdfor existing businesses, which involves a three-stage evaluation process to ensure thosebusinesses are in compliance with the Bylaws. Part of that evaluation process involves assigningdemerit points to those businesses that are deemed a “problem premise” by the VPD.

The City’s regulatory framework creates an enforcement strategy against businesses that openwithout licenses. That strategy includes bylaw enforcement in the form of compliance orders,


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imposition of fines ranging from $250 to $10,000 daily, injunctions and prosecutions. Theframework also envisions VPD criminal enforcement actions with respect to criminal activity inunlicensed businesses.

It is apparent that the City’s regulatory scheme envisions that properly licensed marihuanadispensaries would comply with the Criminal Code and the Controlled Drugs and Substances Act (CDSA). Those businesses that obtain licenses must continue to comply with operationalrequirements, including compliance with existing federal, provincial and municipal law. Non-compliance may result in enforcement action, including the suspension or revocation ofbusiness licenses. It is readily apparent that Criminal Code and CDSA violations by licenseddispensaries would reasonably be justification for enforcement action pursuant to the LicenseBylaw.

VPD ENFORCEMENT

VPD Drug Enforcement Policy

The VPD’s 2006 Drug Enforcement Policy was created after consultation with stakeholders andwas intended as a “ guide for Vancouver Police officers that will positively impact their day-to-day policing practice and discretionary application of the law and other sanctions relating to the harmful useand possession of psychoactive substances. In addition, it will clarify for other stakeholders the rationale for drug-related policing practices in Vancouver, and the specific relationship between the VPD’s publicsafety mission and its drug policy.”

Based on the City of Vancouver’s Four Pillar Drug Strategy, the Drug Enforcement Policycontains a detailed discussion of the Four Pillars - prevention, enforcement, harm reduction,and treatment - and serves as a guide to officers to direct their enforcement strategies. Someexamples include:

A person‘s behaviour or the context of the psychoactive substance abuse, rather than the actualunlawful possession of the substance, should be the primary factor in determining whether to laya charge. Targeted behaviours are those that interfere in the lawful use and enjoyment of a given facility or location, whether private or public, or contribute to street disorder, and cause fearamong citizens and the community at large.

Enforcement will be specifically directed at parks and school grounds. Children, in particular,should not be placed at risk by the negative behaviours associated with psychoactive substanceabuse.

Within the context of enforcement, street-level drug trafficking remains a prio

Documents

Letter to Victoria police board