Pubdate: Thu, 08 Jun 2017
Source: Record, The (Kitchener, CN ON)
Copyright: 2017 Metroland Media Group Ltd.
Author: Greg Mercer
Page: A1


'Is it justice in the community?' - Judge criticizes Waterloo Regional
Police decision to launch a raid

KITCHENER - A provincial court judge criticized the Waterloo Regional
Police's decision to raid an illegal marijuana dispensary in uptown
Waterloo last summer, suggesting a warning might have been sufficient
to close it down.

Instead, a young Kitchener couple were in court Wednesday, facing
criminal convictions for operating a dispensary they say only sold
cannabis to adults with medical marijuana licences.

Justice Colin Westman wondered aloud why their Waterloo Dispensary,
which sold marijuana out of a second-floor business on King Street,
was busted by police in August when other local dispensaries were
given written warnings a few months later.

"There's evidence to suggest if your client had been warned of this,
she wouldn't be here today," the judge said.

"Is it justice in the community when one person gets prosecuted and
the person next door doesn't?"

The Crown, after initially seeking jail time, is now asking for
$10,000 fines for Nour Louka, 30, and her husband, Shady Louka, 31,
who both pleaded guilty to possession of marijuana for the purpose of
trafficking. Her husband also pleaded guilty to careless storage of a
9 mm Glock handgun.

Nour Louka's lawyer, Paul Lewin, is seeking an absolute discharge. He
described his client as a churchgoing, Sunday school
teacher-in-training who ran the dispensary because she wanted to help
other medical marijuana users.

She's a licensed user herself, he said, with a prescription to manage
chronic pain from a 2015 car crash. Lewin said she only "broke even"
financially with the dispensary.

A decision in the case was reserved until after the sentencing hearing
is resumed later this month, and Shady Louka's lawyer Sean Safa can
offer his submissions. But the judge didn't leave much suspense as to
where he's leaning, expressing his hesitancy to give criminal records
to two people without any prior convictions.

With the federal government planning to legalize recreational
marijuana next July, Justice Westman suggested it was "foolish" to
prosecute people to the full extent of the law when legislation is
about to change.

"You're dealing with two beautiful people and now tragically they have
to have a criminal record?" Westman asked. "If they had waited another
year or two they wouldn't be here. But they jumped the line and now
they have to pay for it?"

Police seized more than 483 grams of dried cannabis, 13 grams of
cannabis resin and 312 marijuana edibles from Nour Louka's car the day
they arrested her, after a three-day surveillance operation last
summer, court heard.

Her husband, who also has a licence to use medical marijuana, was
arrested with more than $10,000 cash in his trunk that same morning.
Another $4,400 in Canadian money and $1,829 in U.S. currency was found
at their house, plus a money counter.

When officers searched their dispensary, they say they found 460 more
grams of dried cannabis, 4.7 grams of resin and 61 marijuana edibles.
At their home, a further 573 grams of pot, two grams of resin and 408
marijuana edibles were seized - plus four guns that were licensed to
Shady Louka.

But the judge said he was less concerned with the size of the
operation than the "character" of the people involved.

He also referred to the police warnings given to other marijuana
dispensaries in the region, offering them the chance to close
voluntarily - an option he suggested should have been given to the
Loukas. Three other local dispensaries have since been raided by
police, but that's after they defied police warnings that they were
breaking the law.

Lewin described the Loukas' dispensary as a "compassionate" business
that was less focused on turning a profit than it was offering
affordable marijuana to people in need.

"It was roughly a break-even operation," Lewin said. "Her primary goal
was to help people."

The lawyer added that while the Loukas broke the law, the judge needs
to consider the government's planned legislative changes when he
considers sentencing.

"We're at a unique moment in time in which the government has said
we're going to be legalizing marijuana," Lewin said. "Of course the
law is the law, but the government's statements on legalization aren't

Prosecutor Kathleen Nolan pointed out that trafficking will still be
illegal after the law changes. And she added that there's no
indication yet that the kind of dispensary the Loukas were operating
will be legal under the new rules in 2018.

She took exception to the judge's suggestion that there wasn't a whole
lot of difference between what the Loukas did and the federally
regulated marijuana producers who supply Canada's legal medical
marijuana mail-order system.

But Westman agreed with Lewin that storefront dispensaries, while
illegal, offer a more convenient experience for customers.

Lewin added that the federal task force on legalization recommended a
retail option for users, and said many people are frustrated with the
limitations of the current mail-order system.

"Doctors don't want to prescribe medication without meeting their
patients and exploring results. That makes sense," the judge said.

He called it a "mitigating factor" that the Loukas advertised online
that they only sold to people with licences to use medical marijuana.
Nolan countered there's nothing to prove they abided by that policy.

"I think you're minimizing what is hugely aggravating," she told
Westman, pointing to case law around the illegality of storefront

"I don't agree with you," the judge responded.

"You and I are on a different page in terms of how we view

Westman, who earlier said that legalization would be "opening
Pandora's box," questioned what damage was done to society by the
Loukas' dispensary.

"So what are we penalizing here? Just a violation of the rule of the
law?" he asked.

A few decades ago, convictions for small amounts of marijuana
possession were common. That doesn't happen anymore, and the courts
need to reflect society's changing values around marijuana, Westman

"What (the government) is essentially saying is, we thought it was
dangerous. We don't think that's the case anymore. In fact, we think
it has benefits," he said.

The defence lawyers argued an absolute discharge was necessary because
a conditional discharge would still be seen as a conviction in the
eyes of U.S. authorities - and might affect the couple's travel to
that country.
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