Pubdate: Fri, 20 Oct 2017
Source: Toronto Sun (CN ON)
Copyright: 2017 Canoe Limited Partnership
Author: Colin Perkel
Page: 7


TORONTO - The law under which the owner of two medical marijuana
dispensaries was charged last year was unconstitutional because a
valid program making medicinal pot readily available did not exist at
the time, an Ontario court heard on Thursday.

As a result, charges of possession for the purposes of trafficking and
having proceeds of crime laid against Marek (Mark) Stupak should be
thrown out, his lawyer Alan Young said.

Stupak, 44, operated two "medical marijuana compassion clubs" known as
the Social Collective in Toronto. Police charged him in May 2016 under
the Controlled Drugs and Substance Act as part of a series of
city-wide raids in an operation known as Project Claudia.

Young cited a 2000 ruling from Ontario's top court that Parliament
could not criminalize marijuana use without a program to make
medicinal marijuana available to ill patients who needed it.

Other courts, he said, regularly struck down restrictions on
reasonable access to the drug. However, Ottawa failed to ensure that
access, and dispensaries such as Stupak's sprang up to fill the gap,
Young said.

Project Claudia made a "concerted effort" to close down all the
dispensaries in Toronto but police messed up because they had no law
to back their enforcement action at the time of the raids, Young said.

In October 2013, Ottawa began shutting down an existing but criticized
program under which patients could grow their own pot or have someone
grow it for them for free. The program was replaced in April 2014 with
one in which growers were licensed to grow and supply medical
marijuana to patients.

However, the new scheme also ran afoul of the courts, Young said. As a
result, no valid medical program was in effect between October 2013
and August of 2016, when the government brought in new rules for
medical marijuana, court heard.

"The government dropped the ball and there was a gap," Young told
Superior Court Justice Heather McArthur. "There was a two-year period
where patients were left in the dark and in the cold."

The gap, he said, left patients and their suppliers exposed to
criminal sanction. Additionally, if a patient has a right to use and
to access the drug, the government must make clear that those who
distribute to them are exempt as well, Young said.

"When Project Claudia was initiated, medical patients were in a limbo
period in which it was unclear how they were going to access (medical
marijuana)," Young said.

For his part, Crown lawyer David Morelog argued Stupak was looking for
an "extremely broad" remedy given that the rules in place at the time
were in fact constitutional.

"The applicant is seeking retroactive absolution for drug
trafficking," Morelog said.

Stupak, Morelog said, is relying on a misinterpretation of a key
Federal Court decision in February 2016. In that ruling, a judge found
the medical marijuana system unconstitutional, but gave the government
six months to fix the issue.

In his submissions, Young argued that evidence as to what exactly
Stupak was doing with his dispensaries is not necessary unless the law
is upheld. However, McArthur wondered whether she should know more.

"I strongly suggest it's not necessary," Young replied, but McArthur
said she would think about whether such evidence would be helpful to
her ruling on the validity of the law.

Five other individuals alleged to be owners of medical marijuana
dispensaries have joined the challenge but are awaiting its outcome.
Young said thousands of other cases could be affected as well.

McArthur put the matter over until Nov. 6, when the parties will
discuss whether she needs to hear evidence about Stupak's dealings.
- ---
MAP posted-by: Matt