Are Constitutional Challenges the Future of Canadian Cannabis Litigation?

Article by Randi Druzin, Leafly

Are Constitutional Challenges the Future of Canadian Cannabis Litigation?

When Ottawa police raided a handful of marijuana dispensaries in November, they arrested nine people, including a 21-year-old woman who was working behind the counter in one of them. Tessa Giberson was charged with possession of an illegal substance for the purposes of trafficking and possession of proceeds of crime under $5,000. Six months later, her lawyer, Yavar Hameed, announced that his defense would include a constitutional challenge to Canada’s medical cannabis laws.

Lawyers in other cannabis cases have also been taking aim at the constitution, and many legal experts believe this is just the beginning. As soon as Bill C-45, the Cannabis Act, and Bill C-46, which creates new offences in the Criminal Code and changes provisions related to drug-impaired and alcohol-impaired driving, are passed into law next summer, lawyers predict a slew of constitutional challenges will follow.

If so, Canada’s marijuana laws could ultimately look very different from the way they do now and the way they will on the day the new legislation is enacted.

When asked about the pending constitutional challenge in Giberson’s case, which will be heard in May 2018, Hameed said he was still formulating his case, but indicated that it would likely include some arguments that had been used in successful challenges in the past. Those constitutional challenges led to the legalization of medical cannabis in 2001 and to the continued broadening of regulations governing its use.

Last year, for example, federal court Justice Michael Phelan ruled that some cannabis patients’ constitutional right to “life, liberty and security of the person” had been violated because they didn’t have “reasonable access” to their medicine. In response, the federal government changed the law so that Canadians were no longer required to obtain medical cannabis only from corporations licensed to grow and sell it, but could instead grow small amounts of medical cannabis for themselves or designate someone else to grow it for them.The judge didn’t rule on the constitutionality of the marijuana dispensaries such as the one Giberson worked at, but his ruling noted that dispensaries are at the “heart” of patient access.

“If you’re arrested in a dispensary, a constitutional challenge under the Charter of Rights and Freedoms is your only real option for a defense right now,” Toronto criminal lawyer Jack Lloyd told Leafly. He points to Section 7 of the Charter, which guarantees life, liberty, and security of person (as noted in Justice Phelan’s ruling) and Section 15, which guarantees every person is equal under the law.

A week after Yavar Hameed announced his plan for a constitutional challenge, a provincial court in New Brunswick granted lawyer Rod MacDonald more time to build a defense for his client, Terrence Flecknell, who had pled guilty to possession of marijuana for the purpose of trafficking and to growing more than 200 plants. MacDonald had already stated his position that the mandatory sentence of at least one year in prison would violate Flecknell’s Charter rights to be free from cruel and unusual punishment. (Earlier this month, the B.C. Court of Appeal struck down a six-month mandatory jail sentence for growing between six and 200 marijuana plants for the purposes of trafficking on those very grounds.)

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