Breaking Bylaws: The deal on smoking pot in Toronto

Breaking Bylaws: The deal on smoking pot in Toronto
By Melissa Wilson
OpenFile Toronto (OpenBlog)
July 3, 2012

Last week’s Breaking Bylaws covered the hilariously outdated bylaws that have to do with smoking cigarettes in the City, which are still on the books even though most of them have been made obsolete by the 2006 Smoke-Free Ontario Act.

The Smoke-Free Ontario Act, however, deals exclusively with tobacco, and makes no mention of, ahem, other kinds of smoke.

This all means that while the City’s bylaw officers have the right to ticket someone smoking a cigarette in an inappropriate location (say, on public school property, or inside a bar), or to go ahead and issue a formal charge, if there’s a second person smoking a joint right next to him, the bylaw officer doesn’t have any authority.

“If people are smoking non tobacco in an establishment, at this time we can’t enforce the Smoke-Free Ontario Act,” says Jim Chan, of Toronto Public Health. The only thing they can do, says Chan, is collect samples of what’s being smoked, test it to see if it’s laced with tobacco, and then take action based on that.

There’s little mention of marijuana in the City’s Municipal Code, other than Chapter 565, on Marijuana Grow Operations, which states, rather predictably, that “no person, owner or occupant shall cause, permit or allow a marijuana grow operation on or in a property within the City of Toronto.” It’s overly thorough, too, further stating that “no owner or occupant shall…allow an unsafe, dangerous, offensive or unwholesome condition to exist on or in a property as the result of a marijuana grow operation.” The potential fines are listed as $5,000 for a first offence, and up to $100,000 for a third or subsequent offense. (To be fair, the whole business hasn’t really worked out so well for Nancy Botwin, who should be a cautionary tale for any fledgling pot suppliers.)

That’s it, though, and Constable Tony Vella of Toronto Police Services confirms there are no bylaws against marijuana in the City’s Code. “Marijuana, according to the Criminal Code of Canada, is illegal to possess and sell, and only an officer has the power of arrest,” he says.

Basically, much like the City hasn’t bothered to update its smoking bylaws, and instead just relying on the provincial legislature, it also hasn’t even made any bylaws regarding marijuana, instead defaulting to the Criminal Code.

On a practical level, of course, openly smoking marijuana in the city seems only slightly less common than smoking cigarettes, and it takes just a walk down a busy commercial street, or through a park on a Saturday to catch a whiff of someone lighting up. But that’s no reason to take the matter lightly, because the fact that there aren’t bylaws against smoking pot just means that you’re breaking a federal law instead, which kicks the potential consequences into overdrive.

“Possession of marijuana has a criminal consequence to it. We don’t just have a set fine that we apply,” says Randy Franks, staff inspector and unit commander for the TPS drug squad. Franks says someone caught in possession could end up with a criminal charge, or something less serious, like community service.

And what about the so-called “pot cafés” that pop up in conversation every once in a while, almost like legend to suburban teenagers, and allow patrons to bring (and smoke) their own weed? The most well-know was probably the Kindred Café, which shut down in 2008 amid allegations of trafficking. Beyond that, representatives from the TPS aren’t aware that any similar establishments still exist.

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