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JUSTICE TAKES TIME
By admin | October 18, 2008
JUSTICE TAKES TIME
Cannabis Digest #19
By Ted Smith
Giving herself over 4 months to write a decision, Justice Koenigsberg will release her judgement in the Vancouver Island Compassion Society case (a.k.a. Regina vs. Beren) after hearing final arguments in early August. This trial started in May 2004 when Mathew Beren was arrested at the primary growing facilities of VICS (see Cannabis Digest # 3, 10, 14, 15, 16, 17 and 18). At the time of the arrest Health Canada had issued one license to the location authorizing Micheal Swallow to grow 9 plants as a designated caregiver for a member of VICS. Two other licenses were in the process of being transferred. When police discovered over 900 plants after obtaining a search warrant, the license for 9 plants did not stop them from arresting both Beren and Swallow on the spot.
However, Phil Lucas, founder/president/executive director of VICS, has argued since that moment to the police, courts, media or anyone else who will listen, that the cannabis being grown at the facility were strictly for medical purposes and therefore legal.
His lawyers, John Conroy and Kirk Tousaw have launched a constitutional challenge against the Medical Marijuana Access Regulations. Several excellent expert witnesses have provided some critical information highlighting barriers to access to the MMAR and the dysfunctional nature of the program. The evidence presented by the experts was backed up with testimony from 6 individuals who use cannabis for medical purposes, 5 of whom already had at least an Authorization To Possess. The only person without an ATP that testified claimed to be an AIDS activist who helped other people get into the program but had not actually signed up to the program, despite the fact that her husband had found a doctor willing to write out his forms.
This lack of evidence regarding barriers to access allowed the crown the chance to argue that the MMAR were a difficult set of rules, not impossible and more than illusionary. Evidence from Health Canada employees may have persuaded the justice to grant the government a lot of room to form the MMAR, especially because no plant had ever entered this process before. Justice Koenigsberg, for example, did not seem to have a problem with Health Canada pharmacists calling doctors to recommend they lower the daily dosages they have already prescribed. As a solution to the problems with the doctor being ‘gatekeeper’, the defense proposed that people licensed to practice naturopathic could also sign the MMAR forms. It was the defense position that naturopaths would be both more willing and able to help patients use cannabis. No evidence about naturopaths seemed to be presented during the trial, though this appeared to be an important component of the defense position.
Other defense arguments relied upon the decision by Judge Stayer in Sfetkopoulos et al v. Attorney General of Canada, 2008 FC 33. In that decision, which has been appealed by the federal government, 27 ATP holders challenged s.41(b) of the MMAR because it did not allow a grower to produce for more than 1 person. In its submissions the crown recognizes in paragraph 158, page 56, “Relying on Parker and Hitzig, Stayer D.J. concluded that s.41 (b.1) “negatively affected” the respondent’s liberty and security of the person interests by preventing them from being able to choose their own designated marihuana producer. He accepted that the liberty interest included a right of access to marihuana for the treatment of serious medical conditions and the right not to have one’s physical liberty endangered by the risk of imprisonment from being forced to access marihuana illicitly. He interpreted the security of the person interest as including a right to have access to medication without undue state interference.”
The prosecutor’s main argument against allowing large-scale cultivation of medical cannabis seemed to be that having smaller grow operations limited the risk of diversion through theft. Kirk Tousaw skillfully countered with the fact that larger facilities could protect patients and society against a variety of risks, including home invasions, landlord/neighbour issues, potential fire hazards, diversion or growing problems that affect the quality of the medicine. The case of Wood v. The Queen, (2006) NSCA 49 was used by the crown in closing arguments to show how some ‘compassion clubs’ can be disguises for profit motivated enterprises. This case was brought to the attention of the court by Phil Lucas. In direct evidence he presented a magazine article mentioning the ‘compassion club’ operated by Lynn Wood that discussed the circumstances faced by medical cannabis providers. The article did not mention that the club run by Lynn Wood in New Brunswick had membership requirements that were much less stringent than any other ‘compassion club’ in Canada. However, it did not take the prosecutor long to figure out that the Wood case represented a sham ‘compassion club’.
Phil admitted in cross examination that he knew the ‘compassion club’ run by Wood did not have acceptable memberships requirements and said it was not up to him to tell the whole story. When questioned about the truth of the evidence he was presenting to the courts, Phil stated that he could not say whether or not the physical evidence he was providing to the court was accurate or complete, and that all he could do was assure the court that what he was saying was true.
At the end of the trial Justice Koenigsberg admitted the case was more complicated than she first thought and it would take her until Dec to write her decision. Though she did not state that she was prepared to rule in favour of the defendant, Justice Koenigsberg said that the lawyers would be informed when the decision was filed. It is my assumption that by releasing the decision without any court proceeding, Justice Koenigsberg is prepared to grant Mathew Beren an acquittal but does not want to give Phil Lucas and the VICS an opportunity to create a circus-like atmosphere at the courthouse. It has been stated at several points in the trial that there are many issues that could be argued in an appeal, and that the crown in particular is ready, willing and able to fight this case to the highest levels of court in the country. On the other hand, lawyers for the defense have admitted that this trial has virtually bankrupt the VICS, with expenses exceeding $200,000. Since the decision by Justice Koengisberg is not binding on other courts, and the government is expected to appeal an acquittal, any victory at this stage of the proceedings will be welcome, but not final.
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