Judge finds past pot regulations unconstitutional
Three former shop owners win ruling on legality of in-person sale of cannabis
In dealing with an application brought by three men who were once Saskatchewan pot shop owners, a judge has found that certain sections of former regulations governing the sale of cannabis were unconstitutional.
And as a result, Court of King's Bench Justice Beverly Klatt has ruled that those former regulations are of no force and effect, according to her decision, which recently became available online.
The ruling pertains to the cases of three former pot shop owners, Patrick Lee Warnecke, Justin Seeman and Jerry Matthew Martin, who were all charged with having committed drug-related offences. The decision states they all operated storefront cannabis dispensaries “outside the regulatory scheme provided for in the ACMPR,” while those regulations were in effect.
Warnecke ran a shop called Best Buds in Regina. It was raided in 2018 when police sought to crack down on illegal dispensaries within the city. Martin owned Martin Medical Services located in Whitewood, and was charged after the shop was raided in 2016. The information about Seeman's business is limited within the decision, which states it was called Green Leaf Compassion, it opened in 2016 and Seeman “knew it was not strictly a legal business.” The decision lists the judicial centre for Seeman's matters as Yorkton.
The three men brought an application to the court arguing the prohibition of in-person distribution and selling of medical cannabis under the now repealed Access to Cannabis for Medical Purposes Regulations (ACMPR), as well as prohibitions on selling and sharing cannabis under a section of the Controlled Drugs and Substances Act (CDSA), were unconstitutional.
In her conclusion, Klatt wrote that she found unconstitutional sections of the ACMPR concerning concentrations of THC in cannabis products, methods of distribution to clients by licensed producers and allowed shipping destinations.
One of the questions asked and answered within the judge's decision was whether prohibition against in-person access to medical cannabis was arbitrary.
“The question quite simply is whether there is a rational connection between the prohibition against (licensed producers) providing cannabis to patients in-person and the objective of public health and safety. I find no rational connection exists,” Klatt wrote.
“In this case, the evidence was overwhelming that the restriction to an online system of ordering and accessing medical cannabis undermined the health and safety of patients and was not rationally connected to the overarching goal of providing reasonable access in furtherance of the broader objective of public health and safety,” Klatt wrote.
Also asked and answered was whether limits on THC concentration in certain products was arbitrary.
“When I consider all this evidence and attempt to understand the government's restriction on (licensed producers), I find I cannot reconcile the ACMPR'S imitation with their objective,” the judge wrote.
Part of the judge's issue, according to her decision, was that she could not understand why individuals were allowed to “try to extract concentrations” from the “less potent” oil provided by licensed producers, when the producers themselves, which she wrote were better suited to do so, could not.
The judge's decision also explored whether, even though certain parts of the regulations were found to be in contravention of the section of the Charter of Rights and Freedoms giving the right to life, liberty and security of the
When I consider all this evidence and attempt to understand the government's restriction ... I find I cannot reconcile the ACMPR' s limitation with their objective.
person, they could be justified under another section of the charter dealing with “reasonable limits” on rights.
The judge found they could not. Near the end of her decision, the judge wrote she agreed with the Crown in that although certain parts of the ACMPR had been found unconstitutional, it does not mean a now repealed section of the CDSA pertaining to cannabis was rendered entirely unconstitutional.
“The appropriate remedy is a declaration that s. 5(2) is of no force and effect to the extent that it prohibits an (licensed producer) from the in-person sale of medical cannabis to an individual with a medical document within the meaning of the ACMPR.”