From The Whig Standard by Sabrina Beford December 27 2024
The owner of the cannabis shop raided twice by Kingston Police is refusing to back down, insisting he has a constitutionally protected right to operate his business.
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Robert Fisher Tehonikonrathe is the Indigenous owner of the MyLegacy cannabis shop at 185 Division Street in Kingston that police raided two times in November. At the time, Kingston Police described his shop as an “unlicensed marijuana dispensary operating in the downtown core distributing illicit cannabis-based products.”
But in an interview, Tehonikonrathe took issue with being described as an illegal store, claiming his right to earn a living as an Indigenous man, regardless of what’s being sold, has been repeatedly cemented into Canadian and international law over the years.
He said he’s not bound by lower court legislation such as the Cannabis Control Act which requires retailers to follow provincial regulations.
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“They can say what they want, but provincial law has no jurisdiction over federal rulings. These are sections of the Constitution that protect us, and we’ve already sent all the documentation to (police),” he said.
“The illegal stores are not Indigenous, and the Indigenous stores are not illegal. The illegal stores are the people pretending to be Indigenous stores.”
Tehonikonrathe, 70, is from Tyendinaga Mohawk Territory and argues his and other Indigenous peoples’ right to participate in the economy is protected by several pieces of settled Canadian law.
This includes sections 25 and 35 of the Constitution Act, the Royal Proclamation of 1763, the Covenant Chain treaty relationship between the Mohawks and the Crown, and the United Nations Declaration on the Rights of Indigenous Peoples Act, he said.
His right as an Indigenous person to operate his store and earn a living is protected by the Constitution above all else, he said, and claims any law that conflicts with that, including the Cannabis Control Act, cannot be enforced.
He said upper-level governments “very well know this,” but the challenge has been having dialogue with local police to ensure they understand, he said.
“I am just engaging with them as a courtesy. I don’t need their permission to do anything. I have the federal laws of this country to protect that statement for me,” he said.
“This is not about cannabis. It’s about our right to an economy.”
An employee of the store, who did not want to be named for fear of retribution, said that’s the essence of their whole argument.
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“It’s an Aboriginal treaty rights issues,” the employee said.
“This is a very clearcut question of ‘are we allowed to participate in the economy?’ This is all it comes down to. It has nothing to do with the nature of the business. Because tomorrow if we decide we want to do something else, we do not need the permission of the government to do so, and that is a constitutionally protected right.”
Tehonikonrathe operates close to a dozen stores throughout the province, and he has faced issues with police at several of those stores.
He did not want to disclose the exact locations of his other shops, but he said several of them have also faced trouble with local police. In addition to Kingston, his stores in Toronto, Oshawa, and Ottawa were also raided.
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But in Ottawa, after providing the Crown with his legal arguments, all charges were dropped, he said.
In Oshawa, Tehonikonrathe and his team, which includes former National Chief Delbert Riley, have met with the mayor and are currently in a consultation process with the city over the local operation of MyLegacy.
Court records show, however, he is still facing charges in Oshawa and in Kingston.
Police here say the fact the store was operating outside provincial regulations essentially forced their hand to raid the shop and press charges against those involved in its operation. But despite experiencing similar problems elsewhere, Tehonikonrathe and his team allege Kingston Police have been the hardest municipality to deal with.
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“In this case, this has been the most aggressive enforcement we have seen,” an employee said.
“We have tried to open up communication and dialogue, and we have completely hit a dead end. They will not answer our emails, they will not answer our phone calls. They do not want to engage Robert at all or Chief Riley for that matter.”
Tom Keefer, who works with Chief Riley and has been working alongside Tehonikonrathe on his case, said they thought they were making progress with local police before hitting a dead-end right before being unexpectedly raided and shut down.
Keefer said they informed police of their intentions to open the Kingston store beforehand when Chief Riley wrote a letter to the City of Kingston and the Kingston Police Services Board to inform them of the move.
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After this, the police service wrote a letter to the owners of MyLegacy, written by Sgt. Shawn Birney, which warned the store owner they must meet their obligations as a cannabis store owner in the province of Ontario. Police warned if the store did not comply, they risked a search warrant and criminal charges.
But Keefer said he had a productive phone conversation with Birney on Nov. 12, where he said they discussed that they “did not require authorization from Health Canada or the (Alcohol and Gaming Commission of Ontario) to operate” his business on his traditional territory.
“I also let Sgt. Birney know that Mr. Tehonikonrathe was willing to address any concerns regarding health and public safety with his business and I requested a meeting between Chief Riley and Sgt. Birney and his superiors,” Keefer said.
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According to Keefer, Birney then “expressed a willingness to investigate these matters further” during that conversation, and said he would attempt to contact a provincial team to settle the matter without resorting to enforcement.
“Sgt. Birney – instead of following up with any of the commitments he made in our conversation – proceeded to raid Mr. Tehonikonrathe’s business less than 12 hours after our conversation,” Keefer said.
When asked about these claims, Kingston Police said they could not comment on the specifics, but said they were acting on the current laws.
“Investigators conducted an investigation and based on the state of the provincial and federal laws have laid charges. Now that the charges are properly before the court, to respect the integrity of the legal process, we won’t be commenting further,” said Const. Anthony Colangeli.
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Police said shops that don’t operate within the confines of provincial legislation do not offer regulated products, nor do they pay taxes. Not conforming to regulations means unlicensed stores present health and safety risks, Kingston Police said.
Because of this, Kingston Police first searched and shut down the property on Nov. 13 and laid various charges against a 21-year-old Kingston resident. During this raid, investigators said they seized 5,254 grams of pre-rolled cannabis joints, 7,582 grams of cannabis infused edible gummies, 4,058 “pre-packaged bud marijuana”, and 1,041 unstamped tobacco products.
Soon after, police said they “received further information” that the dispensary had reopened days later. They were granted a second search warrant for the property by a justice of the peace and executed it on Nov. 19.
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That search led police to seize a variety of contraband items, police allege, including several point of sales devices, advertising signage, unstamped tobacco products, and Canadian currency with associated registers. A 23-year-old woman was charged with two counts under the Cannabis Control Act, and one count of unstamped tobacco under the Criminal Code of Canada.
In total, police seized $370,000 worth of products during both raids.
After his Kingston shop was shut down, Tehonikonrathe turned himself into the police station with an entourage of about 20 supporters where he was charged criminally under the Cannabis Control Act. While he was there, he asked police to drop the charges against his staff members. He was unsure whether that happened.
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Despite the fact police say they were enforcing the law, which requires cannabis dispensaries to be licensed with the province, Tehonikonrathe said the raids on his business were illegal, unconstitutional, and an attack on his Indigenous sovereignty.
“They’re harassing me at this point,” Tehonikonrathe said.
“I’m being attacked from all sides by police forces.”
He and his team say an Indigenous person’s right to earn a living – not only on First Nation reserves but off-reserve, as well – are baked into federal laws, and that their right to operate the business exists beyond what is written in current cannabis legislation.
“I really think what this is, is Kingston saying to us: go back to where you’re from. You guys can operate what you want from your lands, don’t come outside.’ And so, this is at the core of the issue,” the employee said.
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For its part, the federal government has undertaken a review of the Cannabis Act, specifically regarding to its impact on Indigenous people.
It has not yielded any results or changes, but Tehonikonrathe is not giving up. He plans to fight the charges by launching a Superior Court challenge, and is also planning to re-open his store in Kingston.
“We are a sovereign nation of people, with our own set of laws that pre-date Canadian law, and we have a right to an economy off our land that we share with British subjects,” he said.
“And the highest courts of this land have acknowledged to that effect.”
sbedford@postmedia.com
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