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Illegal Toronto Dispensary Finds Legal Loophole to Keep Doors Open

April 28, 2019
cafe Dispensary
@iamcafeofficial//Instagram
Illegal cannabis purveyors in Canada continue to thrive in Canada’s new legal market. Whether it’s through flashy promotions, claims of delivery within hours, or prices that undercut the legal market, illegal dispensaries are doing what they can to keep their client base.

That same level of brazenness is being used to keep the doors open at a popular chain of illegal Toronto dispensaries—even after law enforcement and municipal enforcement took actions intended to close the stores indefinitely.

A new law, in force as of October, allows authorities to close a premise if someone is charged with certain provincial cannabis offences in relation to its address. The “closure order” takes effect immediately until charges are resolved by the courts, which commonly takes months.

The province implemented the law to finally close down dispensaries that would open up again just hours after they were “raided.” That was happening earlier in 2018 (and continues to happen) because search warrants themselves only authorize search and incidental arrest, and don’t allow for indefinite closure.

The new-found power has allowed municipalities and police across Ontario to issue closure orders for several stores they have raided in recent months.

But now, Toronto’s popular CAFE (short for Cannabis and Fine Edibles) seems to have found a crafty loophole to exploit.

There’s No Place Like Home

Buried in the Cannabis Control Act is an exemption to the closure power. At s. 18(7), the Act states that the section authorizing closure orders “does not apply with respect to a premise used for residential purposes.”

CityNews reports that two CAFE outposts have been subject to closure orders after provincial charges were laid, and city of Toronto contractors welded the doors shut.

Contractors later returned to un-weld the doors when a lawyer for the chain claimed that an individual has been living in the basement of one of the dispensary’s locations. And the shop has reopened to customers since.

CityNews also reported that the second location of the same chain appears to be using a similar tactic following a recent raid.

Mark Sraga, Director of Investigation Services for the City of Toronto, told CityNews that the claims at one of the locations was made by a CAFE lawyer only after the city took action, and that there were no signs before the closure that would indicate someone was living there.

We spoke to a cannabis and housing lawyer Caryma Sa’d.

She told Leafly that a court could make a determination whether the addresses are truly being used as residences, and issue an order in the meantime speaking to the sale of cannabis on the premises.

Sa’d believes it’s a complex matter that may also involve the Landlord and Tenant Tribunal to determine if the place is a residence and thus regulated under the Residential Tenancies Act.

“What would be proper, is for the court to defer to the landlord and tenant tribunal, to see if the Act applies. Pending the application, they could fashion an interim order.”

A court of the tribunal could make this determination using a test she said is called the “predominant purpose” test.

“If someone is living there, [they] should get a determination if they are covered by the Act, which happens at the board.”

She said that law enforcement officials locking the doors “complicates things” and that a proper residential eviction must go through a sheriff.

The City of Toronto is reportedly asking the province to look at the law and advocate for changes to the exemption provision in the Cannabis Control Act. Sraga also told CityNews that he wants “clear penalties, significant penalties for people that knowingly break the [closure order].”

The provision is contained within the legislation of the Act, which would typically require the legislature to sit to debate any amendments to it.

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However, the legislation allows the government to enact regulations “providing that this Act and the regulations or any provision of this Act or the regulations do not apply in respect of any person, place, thing or circumstance.”

That could mean that the provincial government executive could themselves pass a clarifying regulation meant to take aim at dispensaries like CAFE.

No one is really certain what happens next, but it’s a situation that will almost certainly unfold before our eyes in either the courts or through provincial government action.

For the meantime, it appears that CAFE will continue to sell cannabis through at least two of their Toronto locations, stopping at no cost to sell cannabis despite a growing number legal sources now operating in the downtown core.

Harrison Jordan's Bio Image

Harrison Jordan

Harrison Jordan is a graduate of Osgoode Hall Law School in Toronto and enjoys reading and writing about the regulatory affairs of cannabis in Canada and around the world.

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  • Power Storage

    Where there’s a will there’s a way. We better start seeing quality and selection increase soon because the legal outlets are so far behind the many grey-market online mail order offerings out there. Sites that have been in business for as long as a decade with customer reviews on third party sites are the ones to trust. If delivery could be reduced from days to hours then legal would have nothing on these bad boy options.

  • Michael Robinson

    Heal today/now. Please can law makers use common sense to make one law affective and all encompassing, if you sell pot get a license. Simple law to simple solution of not wasting all peoples times and efforts in regards to all the questions about cannabis handling. The twist is everyone one in the cannabis business gets that right, because they tell the truth about thier activities about and in cannabis. Free the herb and all natural medicines/food to responsible people reporting thier apothecary journey business truth. Paying taxes should just be on truthful gain as any other business must for best practices. Anything else and we continue wasting precious resources on the perverbial mouse cage with a spinning wheel, only best left for the very ignorant or the very controlling evil souls. Dam that squirrel cage of wasted energy.Please let us grow food for healing our nation’s cool people the down trodden, with great need of much grace and mercy..blessings…m

  • Richard

    The Friendship Networks of the social Movement from the West will astound You I can be quite sure of.
    There is No Grey area because the simple fact is it is the Markets.
    They have been Here WAY LONGER.
    The fact that the Broker here has been in Operation since 1964 would be a bit Much for most here I’d imagine ?
    And did You know We can get Our Cannabis Trichome Therapy Licenses and Be Contracted commercial drivers and Care-givers nowadays too!?
    But what’s important is the weak sycophant’s who’d be whore’d for this Poor-Mans-Medicine will continue and so will the Broker;
    and the silly-set-up by Baby Blair and this other dingbat in Your ONT just aren’t .. and won’t eh.
    Those dumbasses seem to Change a heck of alot… but The People….. We Don’t.
    Specific to this is how the change of retail mode is reported as and with an air of repulsion and brandishes the local as a bunch of Brigands, or as Dr. Boyd put it in AllardvR….. Witches .
    The store and Home as one is exactly how Communities started in Canada for the Settler and Indigenous.
    Out here We have Generations of Individuals who have been actively participating in this Market, for You to be where You are today.
    My wish is that You’d remember that because We seem to Have far More Grace and tact towards the eventual evolution of this Space We call the CCC’s, Canadian Cannabis Conversation’s; it’s just a trichome.
    You are very Lucky to Have this Fine representative to be Your Legal Armament!
    You’re very fortunate to have a cannabis and housing lawyer Caryma Sa’d at Your easy disposal .
    Her work is impeccable and Her arguments on Your behalf Will be the Word’s of Thunder to keep You from going Under!~