Letter To Victoria Police Board

Office of the
Police Complaint Commissioner

British Columbia, Canada
December 29, 2015
OPCC File No. 2015-10891
VIA E-MAIL: nicola.mill@vicpd.ca

Her Worship Mayor Barbara Desjardins
Her Worship Mayor Lisa Helps
Co-Chairs, Victoria and Esquimalt Police Board
1 Centennial Square
Victoria, 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 copy
of your concluding letter to Ms. Pamela McColl dated October 20, 2015. That letter dismissed
Ms. McColls 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 Act
are of no force and effect to the extent that they prohibit a person with a medical
authorization from possessing marihuana derivatives for medical purposes. Our
information is that many of the dispensaries to which Ms. McColl takes exception, are
significantly engaged in possessing and selling (trafficking) cannabis derivatives for
medical 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 criminal
statutes.
While the activity of some dispensaries may be illegal, police enforcement is particularly
complex 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; and
the courts have clearly stated that there is a need to ensure effective access by
legitimate users.
5th Floor, 947 Fort Street

PO Box 9895 Stn Prov Govt
Victoria, British Columbia V8W 9T8
Tel: (250) 356-7458 Fax: (250) 356-6503
Stan T. Lowe
Toll Free 1 877-999-8707
OPCC GEN-2B 20141007
Website: www.opcc.bc.ca
Page 2
December 29, 2015
OPCC 2015-10891
Victoria City Council has directed staff to develop new regulations for the Citys
marihuana related businesses.
Discretion is an essential feature of the criminal justice system:

o
individual police officers have the discretion to determine whether to arrest and
charge individuals or to resolve matter via alternative means; and
the Chief Constable has discretion with respect to how limited resources are to
be deployed and the Board supports its Chief Constables decision to limit
deployment of police resources in respect of marihuana dispensaries when there
are public safety concerns.
The OPCC acknowledges that the City of Victoria is in the process of developing a regulatory
framework in order to address the issue of marihuana dispensaries. However, it is unclear how
long that process will take, what that framework will entail or the role that the Victoria Police
will play in that framework. Also currently unclear are the Boards position regarding the legal
status of marijuana dispensaries in Victoria, the Boards priorities with respect to the
enforcement of criminal legislation in relation to marihuana dispensaries and the Boards
expectations of officers with respect to their day-to-day enforcement responsibilities in relation
to marijuana dispensaries.
For these reasons, it is my view that the Victoria Police Department could benefit from the
creation of a clear and objective policy in the area of enforcement as it relates to marihuana
dispensaries.
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 section
171] 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 responsibility
and 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 of
employment, the Cannabis Buyers Club of Canada, and located a bag of dried marihuana, 211
cannabis cookies, and 26 jars of liquids containing tetrahydrocannabinol (THC), the main
active 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 the
exemption to dried marijuana. Mr. Smith was charged pursuant to sections 4(1) and 5(2) of
Office of the
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December 29, 2015
OPCC 2015-10891
the Controlled Drug and Substances Act (CDSA) in relation to the THC contained in the cookies
and 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 nondried forms violated section 7 of the Charter and that violation was not reasonable and
demonstrably justified under section 1 of the Charter. The Court affirmed Mr. Smiths acquittal
at trial and offered the following remedy with respect to the unconstitutional exemption under
the MMARs:
We conclude that the appropriate remedy is a declaration that ss. 4 and 5 of the CDSA are of
no 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 Court
and should not be construed as standing for the broad proposition that marihuana dispensaries
are not operating contrary to criminal legislation.
The Boards Position on Dispensaries
The Boards response to Ms. McColls complaint was unclear regarding its position on the legal
status of marijuana dispensaries currently operating in Victoria. The Board states that many of
the dispensaries are significantly engaged in possessing and selling cannabis derivatives for
medical purposes. This statement indicates that some dispensaries are not engaged in
possessing and selling cannabis derivatives for medical purposes and even those that are may
not be exclusively engaged in doing so. The Board also states that some dispensaries employ
medical professionals to provide prescriptions to prospective users and that this kind of
activity 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 Boards decision later
indicates that some of the activity in some dispensaries may be construed as in contravention of
the 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 Boards
position on dispensaries. 1 In that article, Board Co-Chair, Mayor Barb Desjardins, was quoted
as stating that medical marihuana dispensaries are illegal under federal law.
Licensed Producers
The Federal Government has established a legislative framework for the production, sale and
possession of medical marihuana. According to the Marihuana for Medical Purposes Regulations
(MMPRs), which replaced the MMARs, only a licensed producer may possess, sell, provide,
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-formedical-marijuana-outlets-1.2077920
1
Office of the
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December 29, 2015
OPCC 2015-10891
ship, deliver, transport and destroy marihuana. 2 According to the Health Canada website, there
are currently 27 licensed producers in Canada under the MMPRs, six of which are in BC, one of
which is located in the Capital Regional District. 3
Health Canada issued letters to several BC marihuana dispensaries in September 2015, directing
them to suspend all activities with controlled substances. Those letters suggested that the
dispensaries were not licensed producers and that the dispensaries were also in violation of the
Food and Drugs Act and the Narcotics Control Regulations. The letters also cautioned that the
dispensaries may be exposing customers to criminal liability. Our office received a vetted copy
of one such letter from Ms. McColl (attached for reference). We forwarded a copy to the Board
on September 14, 2015.
Based on our review of the above information, the legality of marihuana dispensaries currently
operating in Victoria is questionable as they appear to be operating contrary to the MMPRs and
other federal legislation.
Marihuana Dispensaries: Recommendations to the Vancouver Police Board
On June 5, 2015, the OPCC received a similar complaint from Ms. McColl regarding the
Vancouver Police Departments response to dispensaries in Vancouver. On November 20, 2015,
I issued recommendations to the Vancouver Police Board in response to the Boards decision
with respect to that complaint. For reference, I have attached to this letter a copy of the
Vancouver Police Boards response to Ms. McColls complaint and the supporting reasons
authored 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 to
Ms. McColls complaint regarding the Victoria Police.
I specifically draw your attention to our review of the roles and responsibilities of the Police
Board and the Chief Constable pursuant to the Police Act and the Police Board Handbook. Also
particularly 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 independent
discretion in their determinations regarding departmental goals, priorities and objectives,
general supervision and command, or law enforcement responsibilities. Rather, municipal
police boards are responsible for determining priorities though consultation with chief
constables is required and are required to provide direction to chief constables with respect to
the administration of justice, supervision and command as well as law enforcement duties and
functions.
RECOMMENDATIONS
Having reviewed the forgoing materials, it is clear that the Victoria Police Department could
benefit from further clarity with respect to the Boards position on the legal status of marihuana
dispensaries and how criminal legislation is to be enforced by Victoria police officers. I am of
2
3
Marihuana for Medical Purposes Regulations, SOR/2013-119, s.12(1)

http://www.hc-sc.gc.ca/dhp-mps/marihuana/info/list-eng.php
Office of the
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December 29, 2015
OPCC 2015-10891
the view that the Victoria Police Department could benefit from the creation of a clear and
objective 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
Departments 2006 Drug Enforcement Strategy, which was to positively impact [members]
day-to-day policing practice and discretionary application of the law.... and to clarify for
other stakeholders the rationale for drug-related policing practices in Vancouver, and the
specific relationship between the VPDs public safety mission and its drug policy. I also
recommend that a consultation process with stakeholders prior to the creation of the policy may
be beneficial.
Pursuant to section 173(1)(b) of the Police Act, I recommend that the Victoria Police Board
develop and implement policy that addresses the following:
1. A detailed explanation of Victoria Police enforcement priorities with respect to
dispensaries, 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 and
examine my recommendations and comments for the purpose of identifying and developing
policy where necessary regarding the Victoria Police Departments approach to marihuana
dispensaries.
Sincerely,
Stan T. Lowe
Enclosures (4)
cc:
Acting Chief Constable Del Manak, Victoria Police Department

Ms. Pamela McColl
Office of the
VANCOUVER POLICE BOARD

"PROVIDING INDEPENDENT CIVILIAN OVERSIGHT, GOVERNANCE. AND STRATEGIC LEADERSHIP TO THE VANCOUVER POLICE DEPARTMENT,
REFLECTING THE NEEDS. VALUES AND DIVERSITY OF VANCOUVER'S COMMUNITIES."
MAYOR GREGOR ROBERTSON. CHAIR

DR. SHERRI MAGEE. VICE.CHAIR
September 21, 2015
CAROLYN ASKEW. MEMBER

BARJ DHAHAN. MEMBER
Ms. Pamela McColl
MARK JAMES, MEMBER
182 Furness Street
CLAIRE MARSHALL, MEMBER
Vancouver BC
THOMAS TAM. MEMBER

DR. PETER WONS, MEMBER
SENT BY EMAIL TO: pjmccoll@shaw.ca

Dear Ms. McColl:
Re: Service & Policy Complaint - Vancouver Police Board File #2015-112; OPCC
File #2015-10810
Further to my last correspondence of June 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, raises concerns about proportionality, and would constitute a
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 will 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 CAMBIE STREET, VANCOUVER. BC V5Z 4N6 T 604.7 1 7.31 70 F 604.257.3878 E OFFICE8VANCOUVERPOLICEB OARD.CA W VANCOUVERPOLICEBOARD.CA
VANCOUVER POLICE BOARD
Pursuant to Section 172 (2) of the Police Act, if you are dissatisfied with the
actions of the Board in this matter, you may ask the Police Complaint
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 Police Department
Office of the Police Complaint Commissioner,

Clayton Pecknold, Director of Police Services, Ministry of Justice and Attorney General
byla
VANCOUVER POLICE DEPARTMENT

REPORT TO THE VANCOUVER POLICE BOARD
REPORT DATE:
COMMITTEE MEETING DATE:
BOARD REPORT #
September 1, 2015
September 17, 2015
1509C01
Regular
TO:
Vancouver Police Board Service and Policy Complaints Review Committee
FROM:
Doug LePard, Deputy Chief Constable

Commanding Investigation Division
SUBJECT:
Service and Policy Complaint #2015-112 regarding enforcement against

marihuana dispensaries
____________________________________________________________________________
RECOMMENDATION:
That the Vancouver Police Board Service and Policy Complaints Review
Committee dismiss this complaint with reasons.
SUMMARY:
This report responds to a Service and Policy complaint alleging that the Vancouver Police
Department is failing in their duty to maintain law and order by not shutting down all marihuana
dispensaries in Vancouver. The complaint further alleges that dispensaries have remained
open because of the lack of VPD enforcement; that the VPD has directed police officers not to
act on signed warrants; and that the VPD has no authority to exercise discretion on what it will
investigate or how it prioritizes the use of its resources when criminal offences are alleged.
Marihuana dispensaries are illegal; however, the issue of enforcement against marihuana
dispensaries is a complicated one because of intersecting legal, social and political factors. The
City of Vancouver (the City) has decided to regulate rather than close all marihuana
dispensaries using its bylaw powers. Using the criminal law to close marihuana dispensaries is
generally ineffective, raises concerns about proportionality, and is a significant drain on valuable
police resources that is difficult to justify in the absence of overt public safety concerns. When
those concerns exist, the VPD has regularly taken action, including the execution of 11 search
warrants and multiple charges recommended to Crown since 2013 these actions have been
generally ineffective at closing the dispensaries involved. In fact, some of the dispensaries
reopened for business shortly after the police executed search warrants; at one location, search
warrants were executed on three separate occasions. Bylaw enforcement, however, is an
effective tool to shut down a business that isnt compliant with municipal bylaws, as has been
demonstrated in those Metro Vancouver municipalities without marihuana dispensaries.
Discretion is an essential feature of the criminal justice system. Individual police officers
properly use discretion every day in making decisions about whether to arrest and charge
individuals or resolve situations in other ways. Further, the Chief Constable has the discretion
to make decisions about how police resources are deployed and what crimes will be
investigated, as long as this authority is exercised ethically and on justifiable grounds. In the
case of dispensaries, the VPD must consider evolving community standards; the Citys decision
to create a regulatory framework rather than using its bylaws to shut down dispensaries; the
prioritization of police resources when weighed against other more serious drug offences
occurring in Vancouver, and the costs and benefits of taking enforcement action against
marihuana dispensaries. As a result, the Chief Constable has decided that such actions will
only 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 that
this 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 a
series of appellate court decisions beginning in 2000 involving a constitutional right to access
medical marihuana.1 As a result, in 2001, the Federal Government introduced the Medical
Marihuana Access Regulations (MMAR), which allowed those with a Health Canada authority
to possess to obtain marihuana from a government approved supplier, or approval to grow their
own (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 and
municipal 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 was
the courts waded in and struck down specific sections of the regulations, which Health Canada
then tried to fix, which led to more litigation. In response, in 2013, the Federal Government
introduced the Marihuana for Medical Purposes Regulations (MMPR) which became effective in
April 2014, but this legislation was also challenged and aspects of the law remain in a state of
flux to this day.
At no time, however, has it ever been legal to sell marihuana from a storefront dispensary and
there is no credible commentary to the contrary (although there is certainly confusion in the
public 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 and
R. 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), which
found that a home with a grow operation is 24 times more likely to catch fire than a typical home.
the buyer is permitted to possess it under the medical marihuana scheme constitutes the
offence of Trafficking under the Controlled Drugs and Substances Act, which is federal
legislation and part of the body of criminal law in Canada, along with the Criminal Code.
Nevertheless, the changing legal landscape
seems to have been the catalyst for a rapid
increase in storefront marihuana dispensaries
catering to both the medicinal and recreational
markets. It is clear there is some genuine
demand for marihuana for medical reasons, but it
appears Health Canada-authorized suppliers
have the capacity to meet the needs of those who
have an authority to possess it for medical
reasons. As one BC prosecutor wryly noted, If
you look at the amount being sold by
dispensaries, Vancouver must be the sickest city
in Canada.3
The reality is that some dispensaries are both
part of a movement to push for legalization of
marihuana for any purpose, and are supplying
what is obviously a large recreational market. As
noted by Donald Briere, described by the National
Post as the Tim Hortons of cannabis (and a
convicted drug trafficker) with multiple marihuana
dispensaries in Vancouver, Were setting this up
to be recreational, full on recreational.4
Further, the dispensaries can only acquire their
marihuana from illegal sources, as they cannot
acquire it from an authorized supplier.5 This not
only supports criminal activity, it damages the
interests of authorized growers, who must comply
with rigorous Health Canada rules and provide a
quality-controlled product.
Their multi-million
dollar investments have been jeopardized by
competition 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 Canadas website at http://www.hc-sc.gc.ca/dhpmps/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 from
http://news.nationalpost.com/news/canada/the-tim-hortons-of-cannabis-63-year-old-king-seeksfranchisees-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.
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
The City had previously adopted a non-enforcement approach to compassion clubs, but with
the rapid proliferation of dispensaries beginning in 2013, the VPD and the City had discussions
about using the citys bylaws, complemented by police enforcement where appropriate, to
address 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 Citys
position but remained committed to continuing to take enforcement action against those
dispensaries that generated public safety concerns. The VPD also made clear that the criminal
law was not, on its own, a useful tool to shut a business. The Citys bylaw regime (including
seeking a court injunction when necessary) is an effective tool to close down a non-compliant
business, 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 be
necessary to launch major investigations to target the owners of dispensaries, rather than
employees.
A major factor in this decision was the availability of bylaw enforcement to efficiently and
effectively accomplish this goal if the City desired. This could include the use of police
evidence, as has been the practice in the past when businesses operated in such a way as to
create public safety concerns (e.g., businesses in the Downtown Eastside selling drugs under
the counter or buying and selling stolen property). In these circumstances, the VPD would
gather evidence through various investigative strategies, then present it at a show cause
hearing by Council into whether the
proprietors
business
licences
should be suspended or cancelled.
Since those discussions, the number
of marihuana dispensaries has
increased from approximately 27 in
July 2013 to approximately 100
currently. None of the dispensaries
had a business licence to operate a
marihuana dispensary which could
not be issued to a business selling
an illegal product although some
had 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 the
one that is the subject of this report.7
On June 24, 2015, the Citys regulatory scheme to manage marihuana dispensaries was
approved by Council and Vancouver became the first city in Canada to regulate the sale of
marihuana from storefront operations. If these new regulations operate as anticipated, they will
eventually reduce the number of dispensaries, provide tools to the City to impose restrictions on
where and how they operate, and reduce the so-called wild west situation that currently exists
because of a lack of regulation and bylaw enforcement.
http://www.vancouversun.com/health/Marijuana+dispensaries+cited+Nanaimo+growers+employees/1117
0951/story.html.
7
The accompanying image is from page A1 of The Vancouver Sun on June 9, 2015 and is used with
It is within this complex social and legal environment that the VPD operates. It must strive to
find 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 public
safety 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 the
marihuana legislation in Canada. Her complaint to the Office of the Police Complaint
Commissioner was forwarded to the Vancouver Police Board on June 12, 2015 and is
reproduced below:
On behalf of the citizens of Vancouver who have expressed concern for their safety and
the safety of their personal property we are registering a complaint for the lack of
enforcement by the Vancouver Police Department in upholdmaing [sic] federal laws that
would have the illegal medical marijuana dispensaries closed and these investigations
brought to either the Office of Civil Forfeiture or the Federal Prosecutors. The VPD has
told the media that they know organized crime is involved in these operations, they know
that marijuana coming into these stores is coming from the licensees under Health
Canada'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 in
Canada. They are aware that parties, including landlords are also breaking laws, by aiding
and abetting, and participating in money laundering as are all other suppliers to these
illegal operations. We have had communication with the VPD and we have been told that
this is not a priority issue or that they do not have the resources to deal with the 93
dispensaries that are now operating in Vancouver. Given the magnitude of the problem we
do not accept that these dispensaries should be allowed to continue to operate. Our
organization has been approached by police officers who have told us that they are being
told 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 in
Vancouver. The risk to our personal safety is such that many individuals do not feel safe
attending City Hall to speak to the matter on June 10th. before Mayor and Council - this is
very sad comment on the state of law enforcement in this country. When citizens feel too
afraid to voice their opinion because of the pot lobby who have been allowed to flourish
due to a lack of willingness of the police to enforce the law. The VPD may have discretion
to lay charges but they can not outright disregard the laws of Canada or ignore complaints
from the public or requests that they investigate crimes.
On June 24, 2015 the complainant also submitted follow-up information directly to the VPD as
follows:
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 make
provision for prioritizing enforcement of criminal statures [sic]. There is some latitude
for enforcement of municipal bylaws. My complaint would be that the Vancouver Police
Department did not uphold the criminal statures [sic] pertaining to illegal distribution of
narcotics 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 Police
Act, which she purported were supportive of her allegation that the police do not have the
authority to prioritize the use of resources. She then continued her complaint:
The reason Vancouver has 98+ illegal medical marijuana dispensaries is because the
police have not done their job. They have stated that it has not been a priority to enforce
the criminal code and force the closure of the pot stores. It is questioned if the police can
prioritize 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 act
would suggest that they can not outright not enforce the criminal code. All the marijuana
dispensaries 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 are
involved 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 doing
as the Vancouver Charter says all busness [sic] operators applying for licenses must be
compliant 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 closing
such 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 of
the 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 country
are regular users. It should be enforced as should all criminal statures [sic] to maintain
law and order and to uphold the credibility of law enforcement. What the city of
Vancouver has just done today in voting for licenses is make a laughing stock of the
medical profession, and law enforcement.
Analysis
The complaint boils down to the complainants 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 illegal
operations;
3. The dispensaries have been able to remain open because of a lack of VPD
enforcement;
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 it
deploys its resources regarding criminal investigations, therefore no such authority
exists, 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 complainants 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,
6
since 2013 the VPD has executed 11 search warrants against marihuana dispensaries. The
most recent warrant was executed on August 12, 2015. These were dispensaries in which the
circumstances were such that they allegedly rose to a threshold the VPD has been open and
transparent about being unacceptable. Included are public safety concerns such as selling to
minors, violence, or the involvement of other criminal activity. In such cases, the VPD will take
enforcement 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 in
shutting 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 also
because Health Canadas capacity to provide the analysis of such items as edibles, which is
necessary for charges to be approved, is extremely limited. This causes significant delays in
the charge approval process.
It is important to note 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 not close a
dispensary. Further, the use of the criminal law against a dispensary employee raises concerns
about the proportionality in the circumstances, given the significant impact of a criminal
conviction. The reality is that the multiple search warrants executed and charges recommended
have generally not resulted in dispensaries shutting down; in. For this to happen, the City would
need to have enforced its bylaws following the police enforcement action, and this has not
occurred. In fact, at one location, search warrants were executed on three separate occasions
and the dispensary simply reopened after each enforcement action. Now that the City has
approved a regulatory scheme, it is expected that dispensaries that operate in a manner which
generates police enforcement action will also not be in compliance with the Citys new
regulations, which can be used to shut them.
2. Police officers are being told not to act on signed warrants to raid these illegal
operations.
On one occasion in 2015, several Patrol officers obtained a search warrant but did not follow
established, written VPD policy on obtaining search warrants for marihuana dispensaries. This
policy includes a requirement to consult with the Organized Crime Section, which has the
expertise necessary to ensure such investigations are conducted appropriately. As a result, the
warrant was not executed. Every other search warrant obtained by the VPD since 2013 to
search a marihuana dispensary has been executed.
3. The dispensaries have been able to remain open because of a lack of VPD
enforcement.
As described earlier, enforcement of the criminal law is not an effective tool to close a
marihuana dispensary. The complainant and others are misinformed in their belief that VPD
enforcement alone will effectively shut down marihuana dispensaries; this has not been the
experience in Vancouver. And several municipalities in the Lower Mainland that do not have
dispensaries, or which have shut down dispensaries, have achieved this result through
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 that
opened was issued a cease and desist letter from the municipality and if it does not comply the
bylaw enforcement process will begin. The
Corporation of Delta does not support
dispensaries and does not currently have any.
One store attempted to open and Delta denied it
a business licence and informed the store it
would enforce licencing bylaws if they sold
marihuana.
In New Westminster, there are
currently no marihuana dispensaries and the city
is prepared to enforce its bylaws to shut stores
down. Surrey currently has no dispensaries and
has purportedly taken the position it will actively
enforce licencing bylaws to close any that might
open.
The Vancouver Sun has reported that Both
North Vancouver District and Surrey have passed
zoning bylaws to prohibit the marijuana
dispensaries.9 North Vancouver Districts bylaw
an amendment to an existing bylaw was
enacted on May 26, 2014.10 Surrey has had a
bylaw regarding production and distribution of marihuana since 2011, along with related
amendments to other bylaws; however, while there are currently no dispensaries in Surrey, their
bylaws 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 owned
by the City of Surrey and in use as a parking lot; dispensaries are banned anywhere else in
Surrey.11
In contrast, in Victoria, the city has chosen not to enforce its bylaws and, according to various
media reports, there are currently approximately 20 marihuana dispensaries there. The mayor
of Victoria has spoken in favour of emulating the regulatory approach taken by Vancouver.12
Canvas conducted by Inspector Mike Serr, VPD Organized Crime Section, and concluded July 6, 2015.
Kelly Sinoski, British Columbia a no mans 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, was
amended to include a marihuana dispensary as a permitted use under Part 36B Community Commercial
B 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 is
the C-8B Zone at 13535 King George Boulevard.
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 necessarily
follow that there will be an investigation. When it comes to marihuana dispensaries, the Chief
Constable must decide how to prioritize the use of expensive resources so as to achieve the
best results regarding public safety and has the discretion to decide what is investigated.
To understand the resource implications of conducting an investigation into a marihuana
dispensary, the following example is illustrative. It summarizes a 2014 investigation which
resulted in four charges against two accused parties:
Information was received that a new business with a permit to sell food was allegedly
selling dried marihuana and edibles, and also had marihuana plants growing in the
premises.
Four Organized Crime Section detectives conducted the investigation leading to a

search 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 Forensic
Identification Unit member (110 hours total).
After the search warrant had been executed, follow up warrants and investigation were
required 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 over
250 seized exhibits.
It took three months for Health Canada to provide the necessary Certificates of
Analysis required for charge approval by Crown counsel. (Health Canada has the
capacity to analyze 30 marihuana plant samples per day on average, but only one
marihuana edible sample per day.)
The detective who authored the Report to Crown Counsel recommending charges
required 120 hours to complete it. (This report wasnt submitted until eight months after
the search warrant execution because of investigative priority given to projects focused
on Fentanyl trafficking, which had been associated with several overdose deaths).
A civilian investigative assistant required another 40 hours to complete the disclosure

package 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 of
one officer working full-time for approximately three months.
Given the significant resource commitment and other factors considered, Chief Constable
Palmer (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.
VPDs position that marihuana dispensaries are not a high priority for drug enforcement in the
absence of overt public safety concerns, considering the much higher risk to public safety posed
by violent and predatory drug traffickers, and by highly toxic drugs such as Fentanyl.
As summarized earlier, the VPD considers several factors before taking enforcement action
against 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 enforcement
actions taken in April, July and August 2015 were because of public safety concerns brought to
the attention of police. In the first incident, a 15-year-old was hospitalized after allegedly
purchasing edible marihuana products from the store. In the second, 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 dispensary had allegedly been selling to youths
and was associated to the Hells Angels.
The VPDs drug enforcement priority remains focused on violent drug traffickers and those who
prey on youth and the marginalized in our community. The VPD will continue to respond to
concerns and take incremental steps to decide if further investigation or enforcement action is
required. Officers have the ability to use their discretion and ensure that any police response is
proportionate to the circumstances. (The VPD has responded in the past to a Service and
Policy 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 it
deploys its resources regarding criminal investigations, therefore no such authority
exists, 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 a
clause setting out the police authority to use discretion in prioritizing resources is not evidence
that no such discretion exists. The authority of police officers, generally, to use discretion, and
specifically the authority of the Chief Constable to make overarching policy decisions about the
deployment of police resources, is derived from both statutes (e.g., the Criminal Code, the
Police Act) and a significant body of law. Briefly, the authority to arrest on reasonable grounds
to believe a criminal offence has occurred does not create a requirement to arrest; it provides
that a police officer may arrest. The importance of the exercise of discretion in policing cannot
be overstated. The objectives of responding proportionately cannot be achieved without the use
of discretion, which would otherwise mean charging every person with every offence for which
evidence existed.14
In terms of the common law and the authority of the Chief Constable, the Courts have
recognized for many years that the Chief Constable has considerable authority to decide what
will 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 be
exercised. For example, the Provincial Violence Against Women in Relationships (VAWIR) Policy directs
that where evidence to arrest exists, police officers should not use their discretion to not arrest, given the
importance 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 be
approved for prosecution.
10
resources. Further, contrary to a misapprehension held by many, municipal police departments

neither report to the municipalitys 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 and
accountable to civilian police boards. Among other duties, the Police Board exists to act as a
buffer to ensure that the police are not subject to political interference.17 The municipalitys
duty 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 VPD
recognizes the importance of carefully considering the views and policies of democratically
elected 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 case
known as Blackburn.18 A relevant portion of Lord Dennings judgment (at p. 769) is as follows:
I have no hesitation, however, in holding that, like every constable in the land, he [the
Commissioner of Police] should be, and is, independent of the executive...I hold it to be
the duty of the Commissioner of Police, as it is of every chief constable, to enforce the
law of the land. He must take steps so to post his men that crimes may be detected; and
that 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 see
that it is brought; but in all these things he is not the servant of anyone, save of the law
itself. No Minister of the Crown can tell him that he must, or must not, keep observation
on this place or that; or that he must, or must not, prosecute this man or that one. Nor
can any police authority tell him so. The responsibility for law enforcement lies on him. He
is 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 the
manner in which enforcement will occur;19 invariably the Lord Denning quote above is cited.20 In
2007 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 from
http://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 City
was directing police to take action following complaints, but municipal police departments are not directed
by 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 of
Individual Constables in: Paul Ceyssens, Legal Aspects of Policing, Earlscourt Legal Press, Inc. (March
2011 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 to
police independence and cites the 1999 Supreme Court of Canada decision R. v. Campbell, which in
turn cites the Lord Denning quote above. Report available at www.tpsb.ca/g20/ICRG20Mordenreport.pdf.
21
R. v. Beaudry, [2007] 1 S.C.R.
11
The fact that police discretion is an essential component of both our criminal justice
system and the work a police officer is not in issue. This discretion makes it possible to
apply 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 and
investigate crimes:
Nevertheless, it should not be concluded automatically, or without distinction, that this
duty is applicable in every situation. Applying the letter of the law to the practical, real-life
situations faced by police officers in performing their everyday duties requires that certain
adjustments be made. Although these adjustments may sometimes appear to deviate
from the letter of the law, they are crucial and part of the very essence of the proper
administration of the criminal justice systemThe ability indeed the duty to use ones
judgment to adapt the process of law enforcement to individual circumstances and to the
real-life demands of justice is in fact the basis of police discretion. What La Forest J. said
in R. v. Beareis directly on point here: Discretion is an essential feature of the criminal
justice system. A system that attempted to eliminate discretion would be unworkably
complex and rigid.
The governing principles discussed above have also arisen for consideration in the police
complaint process. In the course of dismissing a complaint that a police officer failed to
discharge his duty to enforce the law by declining to lay a criminal charge after an assault, the
Alberta Law Enforcement Review Board confirmed that room for discretion remains even where
a 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 exercise
officer discretion to lay such charges as are warranted. An officer may also be
satisfied that grounds to charge are present, but for bona fide reasons no
charges will be laid. In this respect a police officer exercises a wide authority and
is entitled to consider alternatives to charging when such alternatives serve the
public 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 enforce
the law (see, R. v. Beare ...). It is clear, however, that the seriousness of an
incident is a relevant consideration in the context of charging. The more serious
the matter the less room there exists to exercise discretion. By way of example,
a very trivial shoplifting permits far more opportunity for the application of
discretion than an armed robbery with violence.
The limit on the operational authority of a Chief Constable to deploy resources as he or she
sees fit, or an individual constable to make an arrest, is that 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 preferential treatment (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 of the 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 policing environment, which includes
community standards and whether enforcement will create more harm than good.
22
Rolls v Matsune (1998) 7 ALERBJ 190 at 199-200.
12
For example, the VPD has taken a position on the enforcement of prostitution laws which
emphasizes a problem-solving approach with criminal charges against sex workers only as a
last resort; this is a dramatic shift from previous decades when the VPD made hundreds of
arrests for prostitution offences. The VPDs position on the importance of discretion in the
enforcement of prostitution laws is set out in formal guidelines,23 which were described by the
Missing Women Commission of Inquiry as a model of community policing at its best.24
Another example is the VPDs position on managing public demonstrations. Again, the VPD
has clear guidelines rooted in the law, practicality, and the VPDs principles, including
proportionality.25 As was discussed during a presentation on managing public demonstrations
at the Police Boards June meeting, there are a range of options available from rigid and
aggressive enforcement of the law, to a patient, problem-solving approach that reduces the
likelihood of violent conflict.
Discretion is also an important element in policing in communities where there is a high level of
criminality 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 and
tagging exhibits but resulting in little impact on the overall problem. Instead, the VPD decided to
focus 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 (and
elsewhere) must use discretion every day in finding the right balance between enforcement of
laws and other methods to provide public safety. Notably, in commenting on policing in the
Downtown Eastside, the Missing Women Commission of Inquiry recommended that the VPD
develop guidelines to facilitate greater and more consistent use of police discretion not to lay
charges.26
A final example is the VPDs response to young people engaged in consensual sexting of
intimate photos of other young people. Technically, this could constitute the criminal offence of
distribution of child pornography. Rather than unnecessarily criminalizing such behaviour, the
VPDs Youth Services Section has recently developed an award-winning diversion program that
is 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 safety
goals in a manner consistent with the VPDs 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 Women
Commission 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.
13
In the case of marihuana dispensaries, the VPDs approach is consistent with its principles and
responsibility to use expensive police resources wisely. With respect to community standards, it
is notable that in a recent survey conducted by
Insights West, there was strong community support in
BC (67%) and Metro Vancouver (65%), respectively,
for the regulatory approach taken by the City.28
Further, notable public health figures such as
Vancouvers Chief Medical Officer, Dr. Patty Daley;29
provincial Health Minister Terry Lake;30 renowned
HIV/AIDS researcher Dr. Julio Montaner;31 and drug
policy expert and criminologist Professor Neil Boyd32
have each spoken in support of the Citys regulatory
approach to marihuana.33
CONCLUSION:
Marihuana dispensaries are illegal. Those engaged in
selling marihuana from a dispensary are committing
criminal offences under the Controlled Drugs and
Substances Act. This is true whether the marihuana is
being sold for medicinal or recreational purposes, and whether or not the buyer has an
authorization to possess. As a police agency, the VPD cannot condone criminal conduct.
However, Vancouver Councils approval of a regulatory scheme to manage marihuana
dispensaries, rather than using its bylaws to seek to close them outright, is the policy goal it has
pursued, with considerable support from the public and health officials. The VPD must consider
the Citys policy objectives, as well as community standards, public safety concerns, other
28
Kevin Griffin, Most support citys pot shop regulations, survey finds, in The Vancouver Sun,
Wednesday July 8, 2003, p. A3.
29
Jeff Lee and Peter ONeil, Marijuana showdown deepens as Vancouver sends regulation proposal to
public hearing in The Vancouver Sun, June 18, 2015. Downloaded July 20, 2015 from
http://www.vancouversun.com/health/Marijuana+showdown+deepens+Vancouver+sends+regulation+pro
posal+public+hearing+with+video/11010952/story.html.
30
Ian Bailey and Justine Hunter, B.C. Health Minister backs Vancouvers pot dispensary changes in The
Globe and Mail, April 30, 2015. Downloaded July 21, 2015 from
http://www.theglobeandmail.com/news/british-columbia/bc-health-backs-vancouvers-pot-dispensarychanges/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 from
http://www.vancouversun.com/health/Opinion+Ottawa+step+with+Canadians+cannabis+prohibition/1100
8959/story.html.
32
Peter ONeil and Jeff Lee, Ottawa blasts Vancouvers 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 from
http://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
14
policing priorities, and impacts on police resources in making decisions about enforcement of
criminal laws.
Deploying police resources to criminal enforcement against marihuana dispensaries where
there is no overt public safety issue, in the current circumstances in Vancouver, is generally not
an effective, efficient or proportional use of police resources. If the Citys regulatory framework
is successful, the number of dispensaries should be reduced and the more problematic ones
eliminated. However, where there are public safety concerns that rise to the thresholds the
VPD has set, enforcement action has been taken: since 2013, the VPD has executed 11 search
warrants and has recommended charges against multiple individuals, which are currently at
various stages of the charge approval and/or court process. This approach will continue, and
demonstrates an appropriate, lawful, harm-based approach to prioritizing the deployment of
police resources to address public safety concerns.
Therefore, for the reasons described in this report, I recommend this service and policy
complaint be dismissed with reasons.
Author:
Deputy Chief D. LePard Telephone:

LePardSergeant Tan Tran
604-717-3089
Date:
2015-09-01
Submitting Executive Member:

Date:
2015-09-01
15
Office of the
November 20, 2015
OPCC File No. 2015-10810
VIA E-MAIL: patti.marfleet@vancouverpoliceboard.ca

His Worship Mayor Gregor Robertson
Chair, Vancouver Police Board
3rd Floor, City Hall
453 West 12th Avenue
Vancouver, BC V5Y 1V4
Dear Mayor Robertson,
Re: Service or Policy Complaint
On September 21, 2015, the Office of the Police Complaint Commissioner (OPCC) received a
copy of your concluding letter to Ms. Pamela McColl dated September 21, 2015. That letter
dismissed Ms. McColls complaint and advised:
While Bylaw enforcement can be an effective tool to shut down a business, the City of
Vancouver 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 the
VPD will take enforcement action only where there are overt public safety concerns.
Your letter also attached an investigation report, authored by Vancouver Police Deputy Chief
Constable Lepard (hereafter referred to as the Report), which outlined the investigation into
Ms. McColls complaint and provided reasons for its dismissal.
Upon review of your letter and the Report, we requested further background information from
your office and the Vancouver Police Department (VPD). Your office provided copies of
recommendations to Vancouver City Council for regulating Marihuana Retail Dealers and the
Vancouver City Bylaws that were amended on June 24, 2015, as a result of those
recommendations. The VPD provided copies of materials referenced in the Report, including
the VPDs September 2006 Drug Policy, the City of Vancouvers Four Pillars drug strategy, a
July 9, 2014, Marihuana Enforcement Bulletin and emails from VPD executive to all VPD
Operations Inspectors and Acting Inspectors. Those emails provided direction with respect to
the VPDs position on enforcement of Marihuana dispensaries.
5th Floor, 947 Fort Street

PO Box 9895 Stn Prov Govt
Victoria, British Columbia V8W 9T8
Tel: (250) 356-7458 Fax: (250) 356-6503
Stan T. Lowe
Toll Free 1 877-999-8707
OPCC GEN-2B 20141007
Website: www.opcc.bc.ca
Page 2
November 20, 2015
OPCC 2015-10810
The OPCC acknowledges the City of Vancouvers decision to adopt a regulatory framework in
order to address the issue of illegal marihuana dispensaries. However, after reviewing
Ms. McColls complaint and the materials related to the Boards decision, it is apparent that
enforcement of criminal legislation remains an important component of the Citys approach to
this issue, but there remains a gap in policies with respect to how police enforcement will fulfill
this role. It is also apparent that there is a lack of clear, objective policy to guide officers in their
day-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 complaint
has requested a review under section 172 (2) [if investigation or study is initiated under section
171] 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 responsibility
and functions of Police Complaint Commissioner].
BOARDS REASONS FOR DECISION
Criminal Legislation and Search Warrants
The Report outlines several grounds for dismissing Ms. McColls concerns about the lack of
VPD enforcement with respect to marihuana dispensaries, the first of which is the assertion that
criminal 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 not
close the dispensary.
In response to Ms. McColls allegation that VPD officers are being told not to act on a signed
warrant, 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 follow
established, written VPD policy on obtaining search warrants for marihuana dispensaries. This
policy includes a requirement to consult with the Organized Crime Section, which has the
expertise necessary to ensure such investigations are conducted appropriately. As a result, the
warrant was not executed.
Police Discretion
A significant aspect of the Report discusses police discretion, both in the context of the
allocation of police resources and in the context of the individual discretion of each police
officer in the performance of his or her duties. With respect to the allocation of resources, the
Report states:
Office of the
Page 3
November 20, 2015
OPCC 2015-10810
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 Chief
Constable must decide how to prioritize the use of expensive resources so as to achieve the best
results 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 have
recognized for many years that the Chief Constable has considerable authority to decide what
will be investigated and who will be charged15 in making decisions on how to prioritize the use
of resources. Further, contrary to a misapprehension held by many, municipal police
departments neither report to the municipalitys city manager nor are they accountable to its
Council. Municipal police departments in B.C. are products of the Police Act and are governed
and accountable to civilian police boards. Among other duties, the Police Board exists to act as
a buffer to ensure that the police are not subject to political interference. The municipalitys
duty is to provide adequate funding, not direct police operations, although ideally there is a
collaborative 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 about
the deployment of police resources, is derived from both statutes (e.g. the Criminal Code, the
Police 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 case
from the Supreme Court of Canada and Rolls v. Matsune, a 1998 decision from the Alberta Law
Enforcement Review board. Blackburn is cited as the foundation for the operational
independence of the Chief Constable. Beaudry is cited as standing for the proposition that
discretion is an essential component of the criminal justice system, without which the system
would be unworkably complex and rigid. The Report cites Matsune as support for the notion
that discretion exists even where the officer has reasonable grounds to believe an offence has
occurred.
The Report also discusses the limits on the Chief Constables discretion regarding how he or she
will deploy the departments 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 preferential
treatment (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 of
the 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 policing
environment, which includes community standards and whether enforcement will create more
harm than good.
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OPCC 2015-10810
VPD Drug Enforcement Strategy

The Report explains the VPDs drug enforcement strategy, which focuses on public safety
concerns. As noted above, the Report refers to written policy with respect to obtaining search
warrants. The Report also discusses three enforcement actions from 2015:
the VPD considers several factors before taking enforcement action against 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 enforcement actions taken in April, July
and August 2015 were because of public safety concerns brought to the attention of police. For
example the last three enforcement actions taken in April, July and August 2015 were because
of public safety concerns brought to the attention of police. In the first incident, a 15-year-old
was hospitalized after allegedly purchasing edible marihuana products from the store. In the
second, 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 dispensary
had 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 consider
the Citys objectives, community standards, public safety, policing priorities and impacts on
police resources when deciding whether to enforce criminal laws. The VPD will continue its
approach 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 police
department, under the direction of the police board. However, the responsibility for
determining the goals, priorities and objectives of a municipal police department lies with the
police 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 the
municipal police board, to
(a) enforce, in the municipality, municipal bylaws, the criminal law and the laws of
British 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 the
priorities, goals and objectives of the municipal police department.
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November 20, 2015
OPCC 2015-10810
(5) The chief constable must report to the municipal police board each year on the
implementation 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 the
municipal police board, general supervision and command over the municipal police
department and must
(a) exercise powers and perform duties assigned to the chief constable under and in
accordance with this Act and any other enactment, and
(b) ensure compliance with the director's standards as they relate to the municipal police
department.
(2) The municipal police department, under the chief constable's direction, must perform the
duties and functions respecting the preservation of peace, the prevention of crime and
offences against the law and the administration of justice assigned to it or generally to peace
officers by the chief constable, under the director's standards or under this Act or any other
enactment.
II. Police Board Handbook
The Handbook for Police Boards in BC (hereafter referred to as the Handbook) 1 states that
police boards are a civilian accountability mechanism that work to ensure that there is a high
standard of policing and that the interaction between police and the community is fair and
responsive (section 1.0). The Handbook also clarifies the respective roles and responsibilities of
municipal police boards and chiefs of police. A review of Sections 3.0 and 9.0 of the Handbook
demonstrates that municipal police boards are responsible for the objectives and priorities of
the municipal department. However, the relationship between the Board and the Chief should
be one of collaboration. At section 9.3, the Handbook states:
Although the tone and language of legislation and regulations are formal and directive, in
reality the relationship between the municipal police board and the Chief Constable is much
more collaborative. The relationship is similar to that of a board of directors of a company in
relation to the Chief Executive Officer. The boards role is to set general policies, to establish a
vision regarding how and what policing services are provided in the municipality and to be
ultimately accountable to the community for the provision of police services. The Chiefs role is
to manage the department on a daily basis to ensure that the boards 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 and
chief 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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November 20, 2015
OPCC 2015-10810
regarding departmental goals, priorities, and objective, general supervision and command, or
law enforcement responsibilities. Rather, municipal police boards are responsible for
determining priorities though consultation with chief constables is required and are
required 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, the
principles cited from Blackburn are inconsistent with the legislative framework for policing in
BC. Whereas Lord Denning notes that the Metropolitan Commissioner of the Police is not
answerable to the Crown or any police authority, municipal chiefs of police in BC are
answerable to their boards.
It is also important to note that Beaudry was a case in which a police officer, Beaudry, was
charged with obstructing justice for deliberately failing to gather evidence to lay criminal
charges against another police officer who had been operating a motor vehicle while
intoxicated. Beaudry was convicted of obstructing justice after the Court rejected his position
that his decision not to investigate and lay charges was a proper exercise of his discretionary
power. 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 be
exercised reasonably. The Court found that officers discretion must have been exercised
honestly 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 the
context is as important as the principle. Any exercise of discretion not to charge where
reasonable 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 to
address the issue of illegal marihuana dispensaries in Vancouver. Those amendments were
based upon April 21, 2015, recommendations to the Vancouver City Council by the Chief
License Inspector and the General Manager of Planning and Development Service. Upon review
of the amendments and the recommendations, it is apparent that the Vancouver Police
Department plays an important role in the Citys approach to marihuana dispensaries.
The Citys framework relies on its jurisdiction with respect to business licenses and appropriate
land use. Marihuana dispensaries are regulated and controlled via business license regulations,
land use and distancing regulations and operational regulations. A framework was also created
for existing businesses, which involves a three-stage evaluation process to ensure those
businesses are in compliance with the Bylaws. Part of that evaluation process involves assigning
demerit points to those businesses that are deemed a problem premise by the VPD.
The Citys regulatory framework creates an enforcement strategy against businesses that open
without licenses. That strategy includes bylaw enforcement in the form of compliance orders,
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November 20, 2015
OPCC 2015-10810
imposition of fines ranging from $250 to $10,000 daily, injunctions and prosecutions. The
framework also envisions VPD criminal enforcement actions with respect to criminal activity in
unlicensed businesses.
It is apparent that the Citys regulatory scheme envisions that properly licensed marihuana
dispensaries would comply with the Criminal Code and the Controlled Drugs and Substances Act
(CDSA). Those businesses that obtain licenses must continue to comply with operational
requirements, including compliance with existing federal, provincial and municipal law. Noncompliance may result in enforcement action, including the suspension or revocation of
business licenses. It is readily apparent that Criminal Code and CDSA violations by licensed
dispensaries would reasonably be justification for enforcement action pursuant to the License
Bylaw.
VPD ENFORCEMENT
VPD Drug Enforcement Policy
The VPDs 2006 Drug Enforcement Policy was created after consultation with stakeholders and
was 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 use
and 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 VPDs public
safety mission and its drug policy.
Based on the City of Vancouvers Four Pillar Drug Strategy, the Drug Enforcement Policy
contains 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. Some
examples include:
A persons behaviour or the context of the psychoactive substance abuse, rather than the actual
unlawful possession of the substance, should be the primary factor in determining whether to lay
a 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 fear
among 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 substance
abuse.
Within the context of enforcement, street-level drug trafficking remains a priority. This includes the
addicted trafficker as well as the non-addicted trafficker. The VPD will not distinguish between
the two; however, enforcement will be directed more at traffickers who exhibit a higher degree of
organization and coordination. Enforcement will also be prioritized towards those whose trafficking
behaviour interferes in the lawful use and enjoyment of a given facility or location, whether public or
private, or contributes to street disorder, and causes fear among citizens and the community at large.
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OPCC 2015-10810
VPD Marihuana Bulletin and Executive Direction

On July 9, 2014, the VPD issued a Marihuana Bulletin to its members to guide members use of
police discretion in dealing with possession of small amounts of marihuana. That bulletin
builds upon the VPD Drug Policy, adding that consideration should be given to issuance of nosmoking bylaw offences in circumstances where CDSA charges are not warranted.
The Marihuana Bulletin also provides members with guidance with respect to responses to
people setting up marihuana booths or openly selling marihuana at events, or in public places.
Similar guidance is offered to members with respect to marihuana dispensaries, which at the
time numbered approximately 40. Members are instructed to consult their Duty Officer, who
will in turn consult the Organized Crime Section Non-Commissioned Officer.
In November 2014, Vancouver Police Executive sent direction to Inspectors and Acting
Inspectors with respect to the organizations position on enforcement of marijuana dispensaries.
Those emails direct Inspectors to seek approval of the District Commander prior to enforcement
action. This consultation was aimed at ensuring that the District Commander could evaluate the
factors that necessitate enforcement and that the Organized Crime Section and Public
Prosecutions Canada are consulted.
In January 2015, another directive was sent to the operations division, advising that no
enforcement action would be taken against dispensaries, except in circumstances where public
safety is a concern. That directive also outlined the process for responding to complaints about
marijuana stores. Public Safety Complaints required approval by the District Commander and
the Organized Crime Section as well as notice to the Vancouver Federal Prosecutor. Complaints
that did not amount to Public Safety Complaints, but were related to opposition to marihuana,
dispensaries or lack of licenses would not result in enforcement action and complainants were
to be referred to City Hall.
RECOMMENDATIONS
Having reviewed the forgoing materials, it is clear that the Vancouver Police Department plays
an important role in the City of Vancouvers approach to regulating marihuana dispensaries.
The investigation and enforcement of Criminal Code and CDSA violations is an important
component of ensuring that licensed medical marihuana retailers comply with operational
requirements.
Similarly, police information with respect to the nature of existing marihuana dispensaries is an
important component in the evaluation process by the City in determining whether applicants
will be successful in obtaining an operating license pursuant to the current regime in place.
I am of the view that the Vancouver Police Department could benefit from the creation of a clear
and objective policy in the area of enforcement as it relates to marijuana dispensaries. Although
the department has established some internal directives and identified enforcement priorities, I
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OPCC 2015-10810
believe the department could benefit from the assistance of the Board in developing clear policy
to assist officers in their exercise of their discretion and discharge of their respective duties.
It is my view that the policy should be developed with a similar aim as for the 2006 Drug
Enforcement Strategy, which was to positively impact [members] day-to-day policing practice
and discretionary application of the law.... and to clarify for other stakeholders the rationale
for drug-related policing practices in Vancouver, and the specific relationship between the
VPDs public safety mission and its drug policy. I also recommend that a consultation process
with stakeholders prior to the creation of the policy may be beneficial.
Pursuant to section 173(1)(b) of the Police Act, I recommend that the Board develop and
implement policy that addresses the following:
1. A Vancouver Police enforcement strategy with respect to marihuana dispensaries that
are licensed in accordance with City of Vancouver Bylaws.
2. A detailed explanation of Vancouver Police enforcement priorities with respect to
dispensaries, including, but not limited to:
a. The criteria related to determining public safety concerns; and
b. The process necessary to engage in enforcement action.
3. The Vancouver Police Departments role in the City of Vancouvers Regulatory
Framework, including maintenance and sharing of information with city officials
involved in regulating licensed medical marihuana retailers.
Pursuant to section 173(b) of the Police Act, I recommend that the Board further investigate and
examine my recommendations and comments for the purpose of identifying and developing
policy where necessary regarding the VPDs approach to marihuana dispensaries.
Sincerely,
Stan T. Lowe
Copy: Chief Constable Adam Palmer, Vancouver Police Department
Ms. Pamela McColl
Office of the

Letter To Victoria Police Board

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Letter To Victoria Police Board

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Office of the

Police Complaint Commissioner

December 29, 2015

OPCC File No. 2015-10891

VIA E-MAIL: nicola.mill@vicpd.ca

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

5th Floor, 947 Fort Street

Discretion is an essential feature of the criminal justice system:

Marihuana for Medical Purposes Regulations, SOR/2013-119, s.12(1)

Acting Chief Constable Del Manak, Victoria Police Department

VANCOUVER POLICE BOARD

MAYOR GREGOR ROBERTSON. CHAIR

September 21, 2015

CAROLYN ASKEW. MEMBER

Ms. Pamela McColl

MARK JAMES, MEMBER

182 Furness Street

CLAIRE MARSHALL, MEMBER

THOMAS TAM. MEMBER

SENT BY EMAIL TO: pjmccoll@shaw.ca

VANCOUVER POLICE BOARD

Office of the Police Complaint Commissioner,

VANCOUVER POLICE DEPARTMENT

Vancouver Police Board Service and Policy Complaints Review Committee

Doug LePard, Deputy Chief Constable

Service and Policy Complaint #2015-112 regarding enforcement against

enforcement of municipal bylaws, not police actions alone, according to a canvas of

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

Four Organized Crime Section detectives conducted the investigation leading to a

A civilian investigative assistant required another 40 hours to complete the disclosure

resources. Further, contrary to a misapprehension held by many, municipal police departments

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

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

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

Deputy Chief D. LePard Telephone:

Submitting Executive Member:

November 20, 2015

OPCC File No. 2015-10810

VIA E-MAIL: patti.marfleet@vancouverpoliceboard.ca

5th Floor, 947 Fort Street

VPD Drug Enforcement Strategy

VPD Marihuana Bulletin and Executive Direction

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