Proposed Whitehorse cannabis shop going to court over rejection of retail licence application

A would-be Whitehorse cannabis store is going to court after its application for a retail licence was rejected on the grounds that the location would be too close to a school.

In an application for judicial review filed to the Yukon Supreme Court on March 10, Community Cannabis Inc. argues there aren't actually any schools nearby and that the Cannabis Licensing Board was being "unreasonable."

The board, in February, refused Community Cannabis's application to licence a location on Second Avenue next to the Domino's pizza, stating in a written decision that doing so "would not be in the public interest." The decision largely hinged on objections from the Yukon Montessori School, which runs a program for young children on Front Street and plans on opening a private school about a block away.

Territorial cannabis law forbids stores from being within 150 metres of an elementary or secondary school. Both Montessori locations would be within that distance of Community Cannabis's store.

In its judicial review application, however, Community Cannabis argues that the existing Montessori program is a daycare, not a school, and that the proposed private school hasn't been registered with the education minister yet.

Community Cannabis's lawyer, Vincent Larochelle, said the company feels like it's being unfairly targeted.

"There's a little bit of an underlying concern here that we're treating cannabis retailers as though they're criminals or bootleggers," Larochelle said in an interview March 15.

"A couple of liquor shops, an off-sales [government-run] liquor store are all within the same area there… Maybe it's time that we really cut ties with the racist origins of cannabis prohibition and accept that it's legal to sell cannabis here in the Yukon and in Canada more generally."

A lawyer for the licensing board declined to comment on the case.

The Yukon Montessori School, which is not listed as a party in the legal proceedings, did not immediately respond to requests for comment.

Act 'does not contemplate the need to protect toddlers'

In its application to the court, Community Cannabis says it approached the Yukon Liquor Corporation (YLC) in the fall of 2022 about getting a retail licence and was told its proposed location, a unit at 2193 Second Ave., was "suitable for the sale of cannabis."

The company then formally applied for a licence and entered an eight-year lease for the unit, the document continues, spending more than $70,000 on renovations.

The YLC received four objections to the licence application — including two from Yukon Montessori School staff — which triggered the Cannabis Licensing Board to hold a hearing on Feb. 14.

The board dismissed Community Cannabis's application three days later. It ruled that the Yukon Montessori School, which it refers to as "Montessori Borealis," was a private school and that its Aurora Casa classroom at 1191 Front St., as well as its proposed elementary school at 100 Keish St., were within 150 metres of the Community Cannabis premises.

The decision says the locations weren't flagged when Community Cannabis initially approached the YLC as they weren't included on a list of schools on the Yukon government's website, which officials used as a reference during an initial site inspection.

The judicial review application however, argues the Montessori classroom on Front Street is a daycare program "for preschool aged children, under the jurisdiction of the Child Services Branch," not an elementary or secondary school per cannabis or education regulations.

"The Cannabis Act, interpreted contextually, does not contemplate the need to protect toddlers within a 150-metre radius of a cannabis retail store," the application reads.

"Clearly, the Act's aim is to protect school children of a certain age, not children under constant supervision as is the case in daycares."

'Future project with no guarantee of materializing'

The application also takes aim at the Keish Street location, arguing that it isn't registered as a private school and that while the Yukon Montessori School has previously proposed to open a private school in several locations, it hasn't followed through yet.

"The Future School remains just that: a future project with no guarantee of materializing," the document argues.

"Licensing should be determined based on present circumstances, not hypothetical future scenarios... Business owners such as the applicant cannot be expected to keep track of [the Montessori's] numerous attempts at opening classrooms in various locations."

The objections to the licensing application, the documents notes, said the school would be opening in January or February 2023, but "that time has come and gone, and no school has yet opened."

Community Cannabis is asking for the licensing board's decision to be quashed and that it be granted a licence for its Second Avenue store.

A hearing date for the case hasn't been set.