The legal basis for Durham Regional Police permitting one of its officers to become a director 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 anything public about the opinion or even the name of the lawyer who provided it.
“We will not share the opinion 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” approval late last year to become a director of Living On Inc., an online dispensary of “medical marijuana” 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 Mississaugas 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 investigations, and in a 2014 case he testified that his “outside interests” impacted the accuracy of his testimony.
Living On states on its website that it will ship its products to customers who have government approval to possess marijuana for medical reasons and who have completed a membership application. Living On is not one of the 20 companies in Ontario authorized by Health Canada to produce or sell marijuana 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 spokeswoman 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 represented 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 Canada approval] is unlawful,” says Schofield.
Durham police are not at liberty to discuss specific employee applications, Selby explains. However, police chief Paul Martin “would never consent to an illegal activity involving a member,” 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 dependent on the business having “all the proper documents.”
The decision was also discussed last month during an in-camera session of the Durham 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 previously in many senior positions with the Ontario government, and Allan Furlong, a partner at Strike Furlong Ford and former member of provincial parliament, both declined comment.
Furlong indicated that Roger Anderson, chairman of the Durham police services board, speaks for the board.
Anderson stresses that Durham police would never approve secondary employment for an officer 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 involvement with Living On became public, can be distinguished.
“I think there is a bit of a difference. 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 provided 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 Lewin & Sagara LLP in Toronto, says this is another example of inconsistent 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 medical marijuana laws.
Although Edgar’s non-police businesses were approved by his employer, they were not accepted as an excuse for flawed 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 officers, including Edgar.
Contradictory evidence about why Edgar entered a suspect’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 detail due to outside interests he has. His evidence is rejected in totality as unreasonable, untrue and internally conflicted,” the provincial court judge wrote.