The test case that could seal the fates of around 50 of Vancouver’s medical dispensaries kicked off yesterday in BC Supreme Court with lead plaintiff Karuna Health Foundation battling the City of Vancouver to remain open and continue facilitating medical cannabis patients’ right to reasonably access their medicine.

The City of Vancouver wants to shut down the 50 or so unlicensed dispensaries while lawyers for the dispensaries asked that the city’s application be thrown out of court, saying that the current medical dispensary regime was unconstitutional.

Dispensary lawyer John Conroy said that dispensaries are in a legal grey zone, and since Vancouver decided to go the civil route and license dispensaries instead of taking the criminal approach, the city aided and abetted these dispensaries- all while charging licensing fees in excess of $30,000.

The City of Vancouver wants to shut down these dispensaries for two types of non-compliance- zoning and licensing- but dispensary lawyers argued that medical cannabis dispensaries should be exempt from zoning restrictions- such as being 300 m away from schools, community centers, other dispensaries, etc.- because medical patient’s mobility issues need to be considered as well.

Big differences between medical and recreational dispensaries

The dispensaries’ constitutional challenge is based on the distinction between the medical and recreational regimes, which are very distinct. There are currently no provisions for medical dispensaries in the Cannabis Act as patients are expected to either buy their medical cannabis online (which is the only way it can be purchased) or go to a recreational store.

The issue is patient access because many patients don’t want to (or can’t afford to) wait days for their medicine to come in the mail, which could be a potential violation of the patient’s Charter if it interferes with reasonable access.   

The medical cannabis system being online only also discriminates against those without computer access, an online banking account, and permanent address- which are, more often than not, some of society’s most vulnerable.

There are different legal limits to how much cannabis you can have on you at one time, too. While recreational users are only allowed 30 g max, medical patients can possess up to 150 g. That means if a medical user were to go to a recreational dispensary for 150 grams, they would have to make 5 different trips!

COV’s argument against the medical dispensaries

The lawyers for the City of Vancouver argued that corporate entities like the dispensaries do not have legal standing to challenge the constitutionality of the ACMPR because dispensaries are distinct legal entities separate from the owner(s), staff, and members.

The city’s legal team went on to say that the dispensaries were backing into a Charter argument over a law that doesn’t apply to them by relying on breaches of third party rights (of the patients) to defy the city’s bylaws.

What legal standing do the medical dispensaries have?

Much of the day was spent debating the legal standing of the dispensaries to bring a constitutional challenge, with the dispensaries submitting to have private interest standing and if that didn’t work out, public interest standing, while the COV argued that the dispensaries have no legal standing at all as corporate entities.

Most frequently referenced Charter section

The most frequently referenced section of the Canadian Charter of Rights and Freedom was section 7, which reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

Featured image courtesy of Vancouver Observer.