Pubdate: Thu, 04 May 2017
Source: Ottawa Citizen (CN ON)
Copyright: 2017 Postmedia Network Inc.
Author: Jacquie Miller
Page: A3


Patients need and want dispensary access, and people have been helping
patients in the dispensary model for almost twenty years.

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

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 mail-order 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 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."
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