A marijuana dispensary is a storefront operation that sells marijuana to customers. Some dispensary operators require customers to provide medical documentation while others do not.
Are dispensaries legal?
Despite pending legislation that will make recreational marijuana use legal in Canada, dispensaries are still illegal.
Under the Controlled Drugs and Substances Act, it is illegal to sell marijuana outside of the federal medical marijuana program, which provides marijuana through the mail to 20 licensed producers.
Due to the illicit nature of dispensaries, most marijuana dispensaries have obtained or grown the marijuana illegally. Furthermore, marijuana clinics are not licensed by Health Canada.
Is it a Crime to Work at a Marijuana Dispensary?
Bill C-45, known colloquially as the Cannabis Act, will legalize the possession, consumption, and growth of limited amounts of marijuana but until this bill is passed, working at a marijuana dispensary is a crime.
Under the Controlled Drugs and Substances Act, marijuana is a Schedule II drug and marijuana trafficking is an indictable offence punishable by a fine and/or imprisonment.
Marijuana clinic employees engage in trafficking when they sell, administer, give, transfer, transport, send or deliver marijuana to a customer. Even offering to sell marijuana without completing the transaction is considered trafficking.
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Trafficking of marijuana is codified under Chapter 19 of the Controlled Drugs and Substances Act as follows:
Trafficking in substance
5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.
If I am charged with trafficking for working at a marijuana dispensary what are the potential consequences?
Due to the illegal nature of dispensaries, police can raid dispensaries and charge and/or arrest employees.
In deciding whether to prosecute dispensary employees or not, the Crown considers whether there is a “reasonable prospect of conviction” and whether the sentence would “best serve the public interest.”
In determining if the sentence would serve the public interest, the Crown may look at the nature and seriousness of the offence as well as the need to deter similar crimes in the community.
Marijuana trafficking is codified under Chapter 19 of the Controlled Drugs and Substances Act as follows:
(3) Every person who contravenes subsection (1) or (2)
(a) subject to subsection (4), where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;
Punishment in respect of specified substance
(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day.
(5) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VIII is guilty of an offence punishable on summary conviction and liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both.
Schedule II drugs, such as marijuana, carry a mandatory minimum one year imprisonment for trafficking offences with the aggravating factors of:
for the benefit of, at the direction of, or in association with a criminal organization;
involving use or threat of violence;
involving use or threat of use of weapons;
by someone who has been previously convicted of a designated substance offence, or has served a term of imprisonment for a designated substance offence, within the previous ten years, and
through the abuse of authority or position, or by abusing access to a restricted area, to commit the crime of importation/exportation and possession to export.
Furthermore, there is a mandatory minimum of two years’ imprisonment for trafficking offences that involve the following aggravating factors:
in or near a school, on or near school grounds, or in or near an area usually frequented by persons under the age of 18;
in a prison;
using the services of, or involving, a person under 18;
in relation to a youth (e.g., selling to a youth).
Often, the Crown will agree to a peace bond for a dispensary employee charged with drug trafficking.
A peace bond is typically used for lower-level criminal charges such as shoplifting, assault, uttering threats or mischief. The person agreeing to the peace bond agrees to “keep the peace and be of good behaviour”.
If the peace bond conditions are breached, the person can be charged with a criminal offence.
In the case of dispensary employees, a peace bond is a serious consequence as the bond will require the person to no longer work at the marijuana clinic. The peace bond can lead to the employee losing their full-time employment and primary means of income.
Potential Criminal Defences:
It is of the utmost importance that you contact an experienced criminal defence attorney if you are a dispensary employee charged with drug trafficking.
There are defences available to you. We can paint a compelling narrative of the medicinal therapeutic effects of marijuana that a less experienced attorney may not be able to do.
In order to be convicted of drug trafficking or any other criminal offence, the Crown must prove the allegations against the accused beyond a reasonable doubt.
If you have been charged with drug trafficking or any other criminal offence, please contact Kostman and Pyzer for your free consultation today!