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October 3, 2016

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Law Times • OcTOber 3, 2016 Page 3 www.lawtimesnews.com Lawyer says selling pot without approval 'unlawful' Cop director of unlicensed pot dispensary BY SHANNON KARI For Law Times T he legal basis for Dur- ham Regional Police permitting one of its officers to become a dir- ector of an unlicensed marijuana dispensary remains a mystery. The decision was made after the police force received a legal opinion about the issue, but it continues to refuse to make any- thing public about the opinion or even the name of the lawyer who provided it. "We will not share the opin- ion in whole or in part, as that is confidential information," says Dave Selby, a spokesman for the Durham police. Constable Phil Edgar received "secondary employment" ap- proval late last year to become a director of Living On Inc., an on- line dispensary of "medical mari- juana" and marijuana edibles. Corporate records show that Edgar was a director of the Port Perry-based business from last December until late July of this year, when he resigned. The other two directors are Kristopher Khan and Rennie Goose, a former chief of the Mis- sissaugas of Scugog Island First Nation. Edgar also owns a gas station in Port Perry. The veteran Durham officer has previously been involved in marijuana grow-op investiga- tions, and in a 2014 case he testi- fied that his "outside interests" impacted the accuracy of his testimony. Living On states on its web- site that it will ship its products to customers who have govern- ment approval to possess mari- juana for medical reasons and who have completed a member- ship application. Living On is not one of the 20 companies in Ontario authorized by Health Canada to produce or sell mari- juana for medical purposes. The business did not respond to calls seeking comment. Dispensaries or other kinds of retail outlets are not authorized to sell cannabis, explains a spokes- woman for Health Canada. "These operations are illegally supplied and provide products that are unregulated and may be unsafe," says Anna Maddison. Kim Schofield, a Toronto defence lawyer who has repre- sented numerous people charged with marijuana-related offences, says this is not a grey area. "There is no ambiguity here. Selling marijuana or marijuana products [without Health Can- ada approval] is unlawful," says Schofield. Durham police are not at lib- erty to discuss specific employ- ee applications, Selby explains. However, police chief Paul Mar- tin "would never consent to an illegal activity involving a mem- ber," says Selby. The past involvement of Edgar in the dispensary business and the approval he received was first reported in early September by the Toronto Star. A media report in the Star quotes Edgar as saying getting permission for the dispensary from the police force was de- pendent on the business having "all the proper documents." The decision was also dis- cussed last month during an in-camera session of the Dur- ham police services board, the oversight agency for the force. Very little information about these discussions has been made public. Two of the seven members of the Durham police services board are lawyers. Stindar Lal, a Queen's counsel who served pre- viously in many senior positions with the Ontario government, and Allan Furlong, a partner at Strike Furlong Ford and former member of provincial parlia- ment, both declined comment. Furlong indicated that Roger Anderson, chairman of the Durham police services board, speaks for the board. Anderson stresses that Dur- ham police would never approve secondary employment for an of- ficer if it was believed to be illegal. He also suggests that charges laid by Durham police against three dispensaries, just days after the details of Edgar's past involve- ment with Living On became public, can be distinguished. "I think there is a bit of a dif- ference. There is not physical product on site [at Living On]," says Anderson. He adds that the chief approved Edgar's request because of the legal opinion he received. Law Times has learned the name of the lawyer who pro- vided the opinion. He declined to "confirm or deny" that this is the case, explaining that whether any information is made public is up to Durham police. Paul Lewin, a lawyer at Lew- in & Sagara LLP in Toronto, says this is another example of incon- sistent treatment of marijuana dispensaries by police. "The law is being applied in very uneven ways," says Lewin, who has been involved in court challenges to the country's med- ical marijuana laws. Although Edgar's non-po- lice businesses were approved by his employer, they were not accepted as an excuse for f lawed testimony two years ago by a judge in Oshawa. Justice Donald Halikowski excluded evidence found in a grow-op investigation in R v. Li and Jiang because of numerous Charter violations by Durham police. The judge was critical of the conduct of a number of offi- cers, including Edgar. Contradictory evidence about why Edgar entered a sus- pect's home and searched it without a warrant was singled out by Halikowski in his ruling. "His [Edgar's] explanation for this change of evidence is not accepted. He spoke of his harried life and his inability to focus on de- tail due to outside interests he has. His evidence is rejected in totality as unreasonable, untrue and internally conf licted," the provincial court judge wrote. LT NEWS SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED. Start with Practical Law Canada. Whether you need a surface view or a deeper understanding of a legal issue, Practical Law Canada offers up-to-date, straightforward how-to guides, annotated precedents, checklists, and more. For more information about our Personal Injury Litigation and Corporate & Commercial Litigation services, visit www.practicallaw.ca © 2016 Thomson Reuters Canada Limited 00234SB-A53513-NK Kim Schofield says selling marijuana or marijuana products without Health Canada approval is 'unlawful.' Check out lawtimesnews.com for insight from our regular online columnists From trade deals to foreign investment, Patrick Gervais keeps you up to date on business issues in Trade Matters

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