Reasonable Doubt: Marijuana dispensaries don’t operate in legal grey area
In the past year, I’ve noticed a large increase in Vancouver marijuana dispensaries. There seem to be more dispensaries than Starbucks in my neighbourhood. A recent CBC article reported that there are now over 60 cannabis dispensaries in Vancouver.
What about dispensaries? I have a friend with Crohn’s disease who visits a dispensary. She had to go through her doctor in order to buy marijuana from her dispensary. Her doctor filled out a dispensary form recommending that she be allowed to use marijuana for a medical purpose. The dispensary required her doctor to fax the note directly from his office to guard against forged notes. The dispensary gave my friend a membership card that allowed her to buy a certain amount of grams of marijuana per month. Her dispensary has a menu with different products, each with a different list of potential effects (energizing, calming, appetite inducing, pain relief, nausea relief, et cetera). The whole process sounds regulated and legitimate.
Not familiar with the law myself, I spoke with John W. Conroy. Conroy has been defending people accused of drug crimes for over 40 years. He has also been counsel in many of the leading court cases on the criminalization and regulation of marijuana in Canada.
In practice, police are often turning a blind eye to marijuana use. Consider the July 1 Cannabis Day celebrations at the Vancouver Art Gallery where hundreds of people openly sell and consume marijuana. The police are there too, but they are more concerned about controlling traffic than arresting people for possession or trafficking.
People who possess marijuana without a licence still face risks. If someone possesses less than 30 grams, then the maximum penalty is a $1,000 fine or six months in jail or both. The court may deal with first offenders through diversion or discharges, meaning the offender will not have a criminal record (though will end up in a police database, which can still be prejudicial).
Are dispensaries legal? A lot of people think that dispensaries operate in a legal grey area. But Conroy says there is nothing grey about it. Subject to some creative constitutional arguments, they are illegal; the law is just not currently being enforced in a variety of circumstances.
Could police bust dispensaries operating in Vancouver? Absolutely, and sometimes they do, says Conroy, especially when the dispensaries have aggressive advertising campaigns or sell to the general public who cannot legally possess.
People who grow or traffic marijuana can face serious penalties, with mandatory minimum jail sentences of six months to three years based on the quantity or volume.
Conroy has watched public opinion and the judicial treatment of marijuana offences change over his career. The judicial will to punish people for possessing small amounts of marijuana has steadily waned.
Conroy helped incorporate the first Compassion Club in British Columbia in the late 1990s. The club opened its doors in obvious disobedience of the law but nevertheless remains open today:
The clubs were not set up to make money and had altruistic suppliers. They were a compassionate service…from the start the police realized that it would be bad press to bust the place. Arresting people in wheelchairs just trying to get effective, approved medicine would be bad news.…So they left them alone.
The courts have been a strong force in changing the marijuana landscape in Canada. In R. v. Parker, the Ontario Court of Appeal found that a blanket prohibition against the possession and cultivation of marijuana was unconstitutional. Mr. Parker grew marijuana to control his epileptic seizures and was charged with possession. The court found that the blanket criminal prohibition infringed his right to life, liberty, and security of the person:
As I have stated, the choice of medication to alleviate the effects of an illness with life-threatening consequences is a decision of fundamental personal importance…[t]o intrude into that decision-making process through the threat of criminal prosecution is a serious deprivation of liberty....
The state has not violated Parker's rights simply because epilepsy in and of itself represents a danger to his life or health. However, to prevent his accessing a treatment by threat of criminal sanction constitutes a deprivation of his security of the person. Based on the evidence, the marijuana laws force Parker to choose between commission of a crime to obtain effective medical treatment and inadequate treatment....
[the] prohibition tells Parker that he cannot undertake a generally safe medical treatment that might be of clear benefit to him. Under the former Narcotic Control Act there was no procedure that he could effectively access that would allow him to grow or possess marijuana without threat of criminal sanction.
The Parker case forced the government to allow medical marijuana at least in some circumstances. In 2001 and in response to the Parker case, Health Canada began allowing medical marijuana exemptions for approved patients.
Parker made a crack in the prohibition against possessing marijuana that subsequent cases have continued to widen. Several decisions have further relaxed regulations on accessing medicinal marijuana when the court deemed they were too restrictive and thereby forced patients in violation of their rights to access marijuana through the illicit market.
The Supreme Court of Canada has not yet heard a medical marijuana case. That changes next month when they hear R. v. Smith. The B.C. Court of Appeal decided in favour of Mr. Smith and found that medical marijuana laws that restricted patients to possessing and smoking only the dried plant material (as opposed to oils, butters, teas, and lotions) were unconstitutional. The ruling will provide further guidance on how the government may regulate medical marijuana within the bounds of our constitution.
Dispensaries are partly the result of the evolution of the lessening will of law enforcement to prosecute marijuana offences. As the will to prosecute lessens dispensaries are growing in numbers and spreading to new jurisdictions.
In Conroy’s view, politicians are reluctant to take a measured, evidence-based approach to marijuana regulation. The political question is bound up with high emotions and entrenched positions. But ultimately, and in particular with the success in Colorado and Washington, he sees the political arc ending in legalization.
Comments
3 Comments
ggeobc
Feb 27, 2015 at 12:59pm
It is immoral for law enforcement and government to lie to the public or to deceive the public. Since 1923 when cannabis and "hasheesh" were added to the list of prohibited drugs, law enforcement and government has deceived and lied to the public about the effects of cannabis, making outrageous claims of harm and moral depravity, none supported by the medical or pharmaceutical community or any other scientific community. Referrering to cannabis as this fictional "marihuana" or "marijuana" or "mariquana" was all part of the deception, to hide the true identity of cannabis.
There is no scientific proof that cannabis is a dangerous substance, no proof exists that would warrant prohibition of cannabis, therefore prohibition of cannabis is an immoral act, so why is the supreme court upholding this prohibition? All cases related to marihuana (Health Canada's preferred spelling) should be declared unconstitutional and thrown out of court. If our constitution allows this travesty of justice to continue then our constitution is not worth the paper it is written on.
In order to correct this wrong, cannabis needs to be legalized immediately, without restrictions of any kind. Furthermore, anyone ever charged with a marihuana offence can sue the federal government for financial compensation. The government's own policies damaged the character of these persons, essentially ruining their lives. The government knew full well they were lying to the public about marihuana, the lying and deception were fostered by law enforcement and an all too eager press. The legal profession is just as guilty as, to my knowledge, they have never challenged the law on the basis of the law being immoral.
We as Canadians have a lot to consider in this upcoming federal election. Do we vote for a Conservative government who wishes to pursue this path of immorality, or do we vote Liberal or Green and correct this immoral depravity pervading government and our legal system? There is much more at stake then just legalization of "marihuana" or "marijuana" or "mariquana" or whatever other names you would like to give cannabis. The lies and deception must end and retribution must begin, our integrity as Canadians depends on it.
Blergh
Feb 28, 2015 at 7:28pm
On the one hand, if we have illegitimate laws, it is better to enforce them uniformly, so that court challenges can destroy them completely.
On the other hand, if we have illegitimate courts (which we do), it is better to have contempt for them, because they are nothing more than coping mechanisms for co-depdendent psychotics and their fairy-story called "law."
And on yet another hand, at one time, the "drug culture" was smart enough to know that it's all a big stupid wehrmacht shtick---there's no such thing as law. Touch my stuff and it's an act of war. Why do you think it was called the "war on drugs"? As soon as a government declares "war" on anything, it loses any legitimate pretense to law enforcement, as law and war are incompatible. Of course, smart people know that law doesn't exist---only smarmy gits believe in law, typically simpering and gimpy, unable to fend for themselves in nature, so they lie to people in order to restrict their freedom of action. We live in a hypnocracy run by disabled people who could not survive in nature.
The lies and deception must end---but they go far deeper than cannabis. What, exactly, is jurisdiction? Does it have any mass? How do we measure it, scientifically?
Frank Ronald
Mar 2, 2015 at 5:52pm
I would love for Blergh to explain this part of his/her comment:
"
As soon as a government declares "war" on anything, it loses any legitimate pretense to law enforcement, as law and war are incompatible. Of course, smart people know that law doesn't exist---only smarmy gits believe in law, typically simpering and gimpy, unable to fend for themselves in nature, so they lie to people in order to restrict their freedom of action. We live in a hypnocracy run by disabled people who could not survive in nature.
"