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Canada: Charges tossed against more than a hundred 'budtenders' at Toronto pot shops
Thursday 16 Mar 2017
Toronto police have responded to the illegal marijuana dispensaries operating in the city by raiding many of them, charging staff with drug trafficking.
But as those cases hit the courts, many charges against the clerks who call themselves “budtenders” have been thrown out, according to statistics from the federal agency responsible for prosecuting drug crimes.
At the same time, no charges have been withdrawn in Ottawa, where police have raided 12 dispensaries and charged 22 people with drug trafficking since November.
Since last May, 10 people charged in Toronto raids have been committed to trial, all of them dispensary owners and managers. Another 151 people caught up in raids have had their charges stayed and/or withdrawn, according to the Public Prosecution Service of Canada. In most of those cases, the accused were required to sign a peace bond after the Crown decided it wasn’t in the public interest to prosecute them. In a minority of cases, the Crown threw out the charges without condition after deciding there was no reasonable prospect of conviction.
The Crown’s handling of “budtender” cases in Toronto will likely be closely watched by police and municipalities across Canada — including in Ottawa, where most legal proceedings against “budtenders” are in their infancy.
It’s not clear what approach will be taken by the Crown toward dispensary staff who have been arrested in Ottawa or elsewhere. Federal Crown attorneys in various districts make those decisions independently. Across Ontario, there have been police raids on dispensaries in at least 13 smaller cities: Windsor, Waterloo, Kitchener, London, Mississauga, Barrie, Oshawa, Whitby, Peterborough, Hamilton, Burlington, Brantford and Kingston.
Cannabis activists applaud the turn of events in Toronto, saying it was unfair that dispensary clerks faced serious charges that could result in jail time.
Many of the budtenders are in their 20s, earning minimum wage or slightly above, said Michael McLellan, spokesperson for a coalition of Toronto dispensaries that had called for charges to be dropped.
Police should concentrate on more serious crimes, said McLellan. The demand for marijuana is not going away, so raiding dispensaries only drives the trade to unsavoury street dealers or forces dispensaries to operate in back rooms rather than openly, he said.
Toronto police say the raids protect the community from the sale of illegal drugs that Health Canada warns may be unsafe, as well as the violence associated with dispensaries targeted by thieves.
Dispensary employees have been robbed at gunpoint and stabbed, say Toronto police. Thieves know that some dispensary staff don’t report robberies for fear of being arrested themselves for drug trafficking.
So far this year in Toronto, there have been seven reported dispensary robberies, five of them involving firearms, according to Toronto police.
Toronto police led the way in Ontario with a major offensive against dispensaries after dozens of them popped up almost overnight in the winter and spring of 2016. In an operation dubbed Project Claudia, police raided 43 shops in one day last May, arresting 90 people and confiscating bags of dried weed, hash, resin and cannabis cookies, candy, oils and pop. They laid a total of 257 charges for possessing marijuana for the purpose of trafficking and possessing the proceeds of crime. Since then, sporadic raids have continued.
The decision to withdraw charges is further proof that the Toronto raids have been a “waste of money,” said Toronto Councillor Jim Karygiannis. He blames the federal government for not moving quickly enough on its promise to legalize recreational pot. Legislation is expected this spring.
“It’s taking too long,” said Karygiannis. “It’s mind-boggling. Get the regulations in place. We’re going to sell it at the drug stores, we’re going to sell it at the liquor stores or we’re going to sell it at the dispensaries like we have right now. Make a choice, and let’s move on.”
Toronto Mayor John Tory has supported the raids, recently telling the Toronto Star that most people do not want pot sold in a “wild west” fashion or shops on every corner.
The raids have disrupted dispensary operations and forced many to close. It’s hard to get an accurate count of the illegal businesses, and Toronto police declined to provide an estimate. But McLellan says there were about 125 dispensaries in Toronto before police began raiding them nearly a year ago, and about 70 now.
The use of peace bonds for people charged with drug trafficking is unusual, according to two lawyers who specialize in cannabis law.
“If (the Crown) thinks they have a case, for them to agree to a peace bond for trafficking, this is extremely rare,” said Paul Lewin, a Toronto lawyer who is the national secretary for the National Organization for the Reform of Marijuana Laws Canada.
The peace bonds appear to be a “creative way to save face” after the “bone-headed” decision to raid the shops, said Lewin. “The government will shortly make it legal, but you continue to send out the troops? It’s irresponsible, mean-spirited and cruel.”
Lewin is familiar with the bonds signed by some dispensary employees, which he says direct them not to work at a dispensary or enter one for two years.
Peace bonds are typically employed in connection with lower-level crimes such as shoplifting, uttering threats, mischief and assault, said Toronto criminal lawyer Mark Zinck.
A spokesman for the Toronto police said it would be wrong to consider a peace bond as not serious. Breaching conditions of the bond is a criminal offence that carries a maximum sentence of four years’ imprisonment, said spokesperson Mark Pugash.
Another Toronto lawyer who defended one of the accused Toronto budtenders said he suspects charges are being withdrawn because the courts are already overloaded.
His client, a security guard working at the Cannawide Dispensary when it was raided, had drug trafficking charges withdrawn unconditionally, said Selwyn Pieters. “It was a sensible decision,” he said. “All that is happening is that the courts are getting clogged up, so more serious matters that need to be dealt with (aren’t).”
Cannabis lawyer Jack Lloyd says the use of peace bonds could be considered a “progressive” approach by the Crown, a recognition that it’s not in the public interest to send hundreds of dispensary clerks into the criminal justice system.
The situation has become highly political, says Lloyd. “They had a large number of young people in the city of Toronto facing serious drug trafficking charges.”
In their latest raids, Toronto police targeted the owners and operators of dispensaries, not the budtenders.
Last week the force arrested Marc and Jodie Emery, the high-profile activists sometimes dubbed Canada’s Prince and Princess of Pot, who created the Cannabis Culture brand. The chain was expanding its franchises across the country, including a shop that was raided in Ottawa last week.
The Emerys were charged with conspiracy to commit an indictable offence as well as multiple counts of drug trafficking and possessing the proceeds of crime.
As part of what Toronto police dubbed Project Gator, police executed 11 search warrants, raiding five dispensaries in Toronto, one in Hamilton, the Cannabis Culture headquarters in Vancouver, and several private homes. Only the Emerys and three of their business associates were charged.
Toronto dispensary raids
9: Number of people, related to nine separate dispensaries, that have been committed to trial in Superior Court. They are all owners or managers.
1: Number of people committed to trial in the Ontario Court of Justice
113: Number of people, related to about 29 separate dispensaries, who have had their charged stayed and/or withdrawn after entering into peace bonds
38: Number of people, related to about 16 separate dispensaries, who have had their charges stayed and/or withdrawn because there was no reasonable prospect of conviction
*Includes people charged in the May 26, 2016 Project Claudia raids as well as subsequent raids
How does the Crown decide whether to prosecute?
Federal Crown prosecutors can withdraw or stay charges at any time. The decision to prosecute is based on whether there is a “reasonable prospect of conviction” and whether it would “best serve the public interest.” A broad range of factors can be considered in determining the public interest, according to the handbook that guides Crown prosecutors, from the nature and seriousness of the offence to the impact on the community and the need for deterrence.
What is a peace bond?
Bonds are frequently used to resolve lower-level criminal charges such as shoplifting, assault, uttering threats or mischief. The person entering into a bond is not admitting guilt and does not receive a criminal record, but agrees to “keep the peace and be of good behaviour” and to abide by any other conditions specified in the bond. If conditions are breached, the person can face criminal charges.
What’s happening in Ottawa?
No charges have been dropped against 22 employees arrested in 12 raids on dispensaries since November. The cases are winding their way through the court system. Some of the raided shops have re-opened, and there are now about 14 dispensaries in town.
How about the rest of the country?
Dispensaries first began to proliferate in B.C., home to a large underground cannabis industry. Vancouver had “compassion clubs” serving medical marijuana patients for decades, but there was a surge of new shops, and in 2015 an estimated 100 shops were in operation. The city responded with bylaws, requiring $30,000-a-year business licences for profit-making shops and regulating where they can be located and how they operate. The number of dispensaries has been reduced, although some shops simply ignore the fines and the city became embroiled in court battles over enforcement of the bylaws. Vancouver police generally don’t raid dispensaries unless there is evidence they are are selling to minors or associated with violence or organized crime. Victoria also adopted bylaws. The approach has varied in smaller cities across B.C., with a smattering of police raids and several municipalities considering regulations as the shops began to pop up in 2015-16.
The trend migrated to Toronto, where dozens of shops opened almost overnight. By the spring of 2016 there were an estimated 125 dispensaries operating in the city. Toronto police have conducted multiple raids since May 2016, when they hit 43 shops in one day. Dispensaries also began to open in smaller Ontario cities, and police have conducted raids on shops in at least 14 cities. There appears to be little appetite among municipal politicians in Ontario for regulating dispensaries before recreational marijuana is legalized.
More recently, the wave has moved east. Police have raided dispensaries in St. John, St. John’s and Halifax in the last three months.
Police in the province of Quebec have displayed little tolerance for dispensaries. Shops in Quebec City and Gatineau were raided, and six Cannabis Culture dispensaries that opened in a blaze of publicity in Montreal in December were immediately shut down.
Alberta and the Prairie provinces have not experienced the same proliferation of dispensaries.
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