Pot shop clerk charged with drug trafficking at the centre of constitutional challenge
An Ottawa lawyer is launching a constitutional challenge to Canada’s medical marijuana laws as part of his defence of a pot shop clerk charged with drug trafficking.
Three days have been set aside in an Ottawa court in May 2018 to hear the challenge.
He’s still formulating the case, said lawyer Yavar Hameed.
However, Hameed said he may employ some of the arguments that have been used in past successful court challenges.
Such challenges, by cannabis activists, first forced the federal government to legalize medical marijuana at the turn of the century, then to broaden the regulations governing its use several times.
A constitutional challenge in 2016, for example, prompted the government to rewrite regulations to allow patients to grow small amounts of medical marijuana for themselves or to designate someone else to do it for them.
That case was on behalf of several patients who said they couldn’t get the quantity and type of medical marijuana they needed, at a reasonable price, from the mailorder government program.
Justice Michael Phelan ruled in February 2016 that the patients’ charter rights to “life, liberty and security of the person” were violated because they did not have “reasonable access” to their medicine.
At the time, Phelan did not rule on the constitutionality of the marijuana dispensaries that have popped up across the country.
However, his ruling did note that dispensaries are at the “heart” of patient access.
The federal government says the dispensaries operate illegally, peddling products from the black market that are unregulated and potentially unsafe. Patients with a doctor’s prescription can legally buy dried cannabis bud or oil by mail from one of the 43 producers licensed by Health Canada.
Many of the dispensary operators argue they provide patients with a broader range of products, more quickly.
All those arguments will no doubt come into play during the constitutional challenge based on the case of Hameed’s client, Tessa Giberson.
Giberson was arrested in the first sweep by Ottawa police against the illegal dispensaries last November, when six shops were raided in one day. Giberson was a “budtender” at the Green Tree dispensary on Preston Street.
She was charged with 10 counts of possession for the purpose of trafficking and one count of possessing the property proceeds of crime.
Giberson was in court Wednesday, and her trial was set for April 5, 2018. However, the verdict will probably be suspended pending the results of the constitutional challenge in May, said Hameed.
Giberson has declined to speak to the media.
In Toronto, the Crown has thrown out charges against many of the budtenders arrested in potshop raids, while proceeding with charges against owners and managers of the shops. However, that has not happened in Ottawa.
So far, two Ottawa budtenders have pleaded guilty to one count each of possession for the purpose of trafficking. Both received suspended sentences and probation. The rest of the cases are at various stages in the court system.
Another constitutional challenge to the country’s medical marijuana laws was filed in February on behalf of a Toronto nonprofit dispensary. That case argues that the medical marijuana rules don’t allow ill Canadians reasonable access to their medicine.
The system is “plagued with problems, including supply shortages, lack of physician participation, inadequate choice of derivative cannabis medicines, recalls of product for mould and other contaminants, and restrictive rules on changing suppliers and how medicine is obtained,” says a statement from Kirk Tousaw, the B.C. lawyer who filed the case in federal court.
Tousaw was the lawyer who won the constitutional challenge heard by Justice Phelan in the Federal Court in B.C. last year.
“Patients have voted with their feet and their wallets,” said Tousaw’s statement. “Patients need and want dispensary access, and people have been successfully helping patients in the dispensary model for almost twenty years.”
Patients need and want dispensary access, and people have been helping patients in the dispensary model for almost twenty years.