Pubdate: Mon, 13 Jul 2015
Source: Law Times (Canada)
Copyright: 2015 Canadian Lawyer Magazine Inc.
Author: Michael McKiernan


Kirk Tousaw has always been a thorn in the side of authority when it
comes to the laws surrounding marijuana.

His interest in the legal position of the drug dates back a long time.
As a 15-year-old, he was busted for possession in his home state of

"I thought it was completely unjust," says Tousaw.

Soon after, a visit to his high school from the state governor
provided the perfect vehicle for Tousaw to take his protest to the
highest levels of the Michigan establishment.

"The night before the visit, we had used my friend's dot-matrix
printer to produce this big banner. Then we broke in before school and
hung it up in the hallway," says Tousaw, who also demonstrated some
developing tactical skills during the operation.

"We didn't want to hang it up in the gym because we figured someone
would see it there and tear it down before anyone arrived."

According to school legend, the ploy worked with Michigan's
then-governor Bill Milliken, a man famous for signing the state's
notoriously harsh mandatory minimum drug sentencing law, welcomed by a
sign that read: "Legalize Marijuana Now!"

"The principal was not pleased," says Tousaw.

These days, the targets are much the same. Instead of tussling with
the government of Michigan, Tousaw's chief adversary today is the
federal government of Canada, where he now makes his home. The venue
for the fight has changed, though, migrating from high school hallways
to courtrooms across the country, including the highest one in the

Earlier this year, Tousaw, the principal of Duncan, B.C.-based Tousaw
Law Corp., appeared at the Supreme Court of Canada, acting as counsel
to Owen Edward Smith, a producer of edible and topical forms of
medical marijuana. Since the medical marijuana access regulations that
governed the medical use of the drug limited possession to dried
marijuana, Smith found himself arrested and charged with possession
and trafficking of cannabis.

"We think it's inappropriate to force someone to smoke dried marijuana
when eating it or applying it topically could provide better relief
with fewer side effects for some people," says Tousaw.

In 2012, a B.C. Supreme Court judge acquitted Smith and ruled the
restriction to dried forms of marijuana breached s. 7 of the Charter
of Rights and Freedoms. The province's appeal court upheld the
decision in 2014 and last month, a unanimous seven-judge panel of the
Supreme Court of Canada agreed, finding "no connection" between the
restrictions and the health and safety of medical marijuana patients.

"It is therefore difficult to understand why allowing patients to
transform dried marihuana into baking oil would put them at greater
risk than permitting them to smoke or vaporize dried marihuana.
Moreover, the Crown provided no evidence to suggest that it would.

In fact, as noted above, some of the materials filed by the Crown
mention oral ingestion of cannabis as a viable alternative to smoking
marihuana," the court wrote in its June 11 decision.

"Finally, the evidence established no connection between the impugned
restriction and attempts to curb the diversion of marihuana into the
illegal market.

We are left with a total disconnect between the limit on liberty and
security of the person imposed by the prohibition and its object. This
renders it arbitrary."

The edibles case was just one in a series of Charter challenges
brought by Tousaw on behalf of clients. After moving to Vancouver in
2002, a year after the federal government unveiled the regulations,
Tousaw worked with marijuana activist Marc Emery and John Conroy, a
lawyer also involved in the medical marijuana issue.

"We argued several times that the regime was arbitrarily restrictive,"
says Tousaw, who estimates this kind of strategic litigation currently
makes up about a third of his practice.

The rest of his practice involves defence work for people charged
criminally with marijuana-related offences and regulatory activities
on behalf of dispensaries and producers of marijuana.

According to Tousaw, the regulatory side of the practice has ballooned
in recent years after the federal government replaced the old
regulations with a new regime.

"They've sanctioned larger operations but they've taken away the
rights of patients to grow their own, so they've gone too far in the
other direction," says Tousaw.

In addition, just last month Vancouver's city council approved its own
bylaw to regulate the city's booming medical marijuana retail market.
About 100 dispensaries are currently in business throughout the city.

"Three or four years ago, the dispensaries were all coming to me
because they had been busted by the police," says Tousaw.

"Now I can offer them a wider range of services to assist them with
more day-to-day issues arising from their business."

Hugo Alves, a corporate and commercial partner at Bennett Jones LLP in
Toronto, spotted an opportunity when the new regulations arrived in

"When the old regime was put in place, there was some legal work
around but not the type a large law firm would do because they were
trying to regulate the patients," he says.

"When the new ones came out, I thought this will create an industry
because they were shifting to regulate the dispensaries and producers.
Those types of companies are going to require capital. They'll need
picks and shovels in the ground and a number of other businesses
around them."

Alves says he saw the same thing happen before in working with clients
operating in new markets effectively created by government regulation.
A similar scenario emerged, for example, after the signing of the
Kyoto protocol when the international climate change treaty created an
emissions trading market and again closer to home when Ontario's Green
Energy Act spurred the development of a renewable energy market in the

Working with associate Michael Lickver, Alves began building a plan to
involve the firm in the fledgling industry. In fact, he represented
one of the first applicants for a production licence from Health
Canada under the new regime.

"We mapped out how we thought the industry would look. We view it as a
nucleus comprised of the producers, the distributors, and the
consumers. Out from there, you have a lot of different service
providers: medical clinics, technology providers, security
consultants, and so on. We've made a conscious effort to have clients
in every one of those sectors because each one views the industry
through a different lens," says Alves.

According to Alves, his firm has been very supportive of the

"It's a law firm that is hugely entrepreneurial, so they like to see
partners and associates who want to do something creative and build a
new line of business," he says.

Alves says the groundwork he and Lickver have already put in place
will also leave them in a strong position in the event the government
ever legalizes recreational use of cannabis, a change Liberal Party
Leader Justin Trudeau has been promising to make.

"I think if the regulations are expanded to allow for consumption by
adults other than those with a medical need, the platform for
distribution and production will likely remain the same," says Alves.

"The underlying policy objectives of protecting public health and
safety and avoiding diversion into the criminal market, those things
won't change," says Alves.

It's not just in advisory roles that lawyers have sensed a business
opportunity in the marijuana sector.

Maxim Zavet has taken a sabbatical from his practice at Toronto firm
Levy Zavet PC to focus on his role as chief executive officer of
KindCann, a medical marijuana company he cofounded that's in the final
stages of licensing with Heath Canada.

"The licensing process has been a big challenge," says

"There's no manual on how to put an application together and it's a
very slow process. I think there are two or three former lawyers
involved in companies.

It's a field lawyers sink their teeth into because the regulatory
compliance takes some knowledge to get through."
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