Cannabis and Court Rulings

Cannabis and court rulings have an extensive, intertwined history. In Canada, for example, the courts require the federal government to provide “reasonable access” to medical cannabis.

When the federal government tried to ban home-growing, the Supreme Court told the government to back off. (Allard v. Queen)

Likewise, in the United States, in Gonzales v. Raich, the courts ruled the federal government did not have the authority to enforce drug laws against medical cannabis patients in states where medical cannabis was legal.

Or in Conant v. Walters, where the courts ruled a physician’s First Amendment rights meant they were free to recommend medical cannabis without fear of losing their medical licenses.

Of course, not every court decision comes out in favor of cannabis consumers and medical patients. And thanks to the Judicial Revolution of the 19th century, if you sue the government (as a taxpayer), you’re also paying for the other side and its appeals.

But consider how cannabis and court rulings have helped advance the cause. Consider how fair and impartial courtrooms are superior to the popularity contests of democratic elections.

The Case for the Courts

Cannabis and court rulings have had better luck protecting the rights of medical patients and the connoisseurs who have harmed no one. And it should be obvious why.

Careful consideration of evidence and legal precedent goes into forming court decisions. In contrast, political or social pressures do not bode well for individual rights.

Consider,

1. Impartiality: Courts must be impartial and base their decisions on evidence and legal precedent rather than political persuasion or popular opinion formed by corporate influencers. This is especially important in cases like medical cannabis or cannabis legalization, where the issue is “controversial” or divisive.
2. Expertise: Courts often have access to expert witnesses and legal scholars who can provide valuable insight and information on complex issues. This expertise can help ensure that decisions are well-informed and based on a thorough understanding of the relevant legal and social issues. In contrast, look at your average politician (on the left or right) and tell me with a straight face that they’re the experts.
3. Protection of minority rights: In some cases, courts can help protect the rights of minorities who might not have a voice in the political process. We can see this with medical cannabis patients. In 2014 Canada, a Conservative government didn’t have to listen to medical cannabis patients with little-to-zero political power or influence as an electoral base. It was the Supreme Court that struck down the policy change requiring patients to destroy their personal cannabis gardens.
4. Checks and balances: Designed to serve as a check on the legislative and executive branches, the judicial branch of government is supposed to ensure that laws and policies are consistent with the U.S. Constitution or the Canadian Charter of Rights and Freedoms. This is especially important in cases like cannabis, where a single “public health” ideology dominates the political narrative on both sides.

Cannabis and Court Rulings: New York Example

Of course, we don’t have to pick up a history book to see how cannabis and court rulings intertwine. The history of cannabis legalization is happening in real-time. And we’ve got front-row seats.

Consider the latest news from New York.

New York State legalized cannabis two years ago, although only seven shops had opened. Some blame a federal court ruling that put retail licensing on hold. But the judge made that decision due to New York’s Cannabis Control Board’s application process.

Both legislators and the control board prioritized applicants with past cannabis convictions (or with relatives with cannabis records) as part of their diversity, equity, and inclusion model.

New York’s Cannabis Control Board emphasized “communities disproportionately impacted” by the war on cannabis, “minority-owned businesses,” and “women-owned businesses,” disabled veterans, and low-income residents.

You’d think allowing specific individuals to cut the line because of their skin color, criminal history, or genitalia would have been enough to provoke a lawsuit. But as this is the unquestionable zeitgeist of our times, the suit took another angle.

New York State, said the judge, violated interstate commerce rules.

U.S. Driect Court Judge Gary Sharpe ruled that New York’s license application requirements “will have a discriminatory effect on out-of-state residents.”

While the lawsuit is ongoing, the appeals court narrowed the scope of the injunction. As a result, New York has approved 99 new licenses.

Cannabis and Court Rulings: The Battle in the Yukon

Cannabis and court rulings may not always be fair and impartial. Corruption can exist in the judicial branch, although not as easily as in the legislative or executive branches.

Nevertheless, when it comes to bureaucrat regulators versus lawyers, paralegals, and judges – I’ll take the latter.

Consider the case of Community Cannabis Inc. in the Canadian territory of the Yukon. Community Cannabis applied to open a retail store in Whitehorse. They applied for a spot next to Domino’s Pizza.

The Yukon regulator said no. There was a school within 150 metres. But, as Community Cannabis pointed out, the “school” in question was actually a daycare. Nor was it registered with the Ministry of Education.

Never mind that the regulators had already told Community Cannabis that the proposed location was “suitable for the sale of cannabis.” Or that the company had already spent more than $70,000 on renovations based on this pre-approval.

Or that the authorities didn’t flag the location. Nor was it included as a “school” on the Yukon government’s official website.

Community Cannabis’ lawyer told the media, “There’s a little bit of an underlying concern here that we’re treating cannabis retailers as though they’re criminals or bootleggers… A couple of liquor shops, an off-sales [government-run] liquor store are all within the same area there… Maybe it’s time that we really cut ties with the racist origins of cannabis prohibition and accept that it’s legal to sell cannabis here in the Yukon and in Canada more generally.

Will the Courts Rule in Favor of Community Cannabis?

Cannabis and court decisions don’t come easy or cheap. But it’s important to remember why we have a separate judicial branch of government.

Of course, since the Judicial Revolution of the 19th century, this independent branch has slowly but surely been absorbed into the halls of the top-down, bureaucratic-heavy state.

But we still have some semblance of court independence. That is unless Yukon’s cannabis regulators have their way.

Community Cannabis is taking the cannabis regulator to court for obvious reasons. The regulatory board’s response?

The courts shouldn’t interfere. Courts should defer to their “factual findings” as “administrative decision makers.”

Disgusting. Government regulators are not above the law.

Courts play a vital role in ensuring governments – including Yukon cannabis regulators – are held accountable. The Yukon Cannabis Licensing Board is not immune to legal challenges or judicial review.

In fact, judicial oversight is necessary to ensure these regulators act within the bounds of their authority and respect the rights of individuals and businesses affected by their decisions.

Someone should remind the Yukon licensing board of the 2008 Supreme Court of Canada case, Dunsmuir v. New Brunswick.

An employee challenged the decision by a provincial regulator regarding his employment status. The regulator told the court to defer their expertise. The Supreme Court said, no thanks, we’ll apply our own standard that ensures the correct legal jurisprudence is applied.

Using the Rule of Law

Cannabis’ has always fared better in the courts than in the legislative process. This trend has changed in recent years. Democratic governments are eyeing up illicit markets and lost tax revenue and realizing they’ve been dealing with cannabis all wrong.

But it’s still an uphill battle. Whether it’s institutional discrimination favoring some applicants over others. Or regulators who are drunk on their power and believe they can overturn centuries of Western legal tradition.

With governments legalizing based on conservative “public health” models, relying on court decisions to bring about cannabis liberalization is still an effective strategy.

Regulators and licensing boards better start thinking through the legal consequences of their actions.