Saskatoon Dispensary Patients to File Class Action Human Rights Violation

Dozens of members of the Saskatchewan Compassion Club have now joined a complaint filed with the Human Rights Commission in response to the dispensary being shut down by police.

Compassion Club operator Mark Hauk said after member Kelly Anderson announced he was filing a human rights violation against the city and Saskatoon police, other members stepped forward to join the process.

“I put out the call via social media,” said Hauk. “I had dozens get back to me wanting to file complaints.”

Anderson said the dispensary was the only place he felt safe buying cannabis. The Saskatchewan Human Rights Code protects those with disabilities or medical conditions from discrimination.

Hauk said after contacting the Saskatchewan Human Rights Commission he was advised to organize a class action claim on behalf of patients, a claim he hopes will force the local government and police to allow patients to have access to their medicine once again.

British Columbia Civil Liberties Association Policy Director Micheal Vonn said at this point the issue isn’t straightforward.

Vonn believed the relevant provision under which a human rights complaint could be filed was under section 12 1.b of The Saskatchewan Human Rights Code which prohibits discrimination in services offered to the public.

“No person, directly or indirectly, alone or with another, or by the interposition of another shall, on the basis of a prohibited ground discriminate against any person or class of persons with respect to the accommodation, services or facilities to which the public is customarily admitted or that are offered to the public,” the code reads.

Vonn said even though this provision is very broad it may not be able to capture the police’s actions as discrimination under the code.

“The problem with all of this stuff is the same problem we’re having here in BC where dispensaries are being licensed and the question is, ‘whose jurisdiction is this?’” Vonn said, pointing out that while cities have the power to license businesses within their borders, it’s the federal government that controls cannabis.

According to Vonn, Saskatoon police could argue they are not discriminating against patients, but simply enforcing laws and the issue should be targeted toward policy makers.

“The police would likely dispute whether you can have this dispute,” Vonn said. “I would anticipate that city police will send their counsel forward to say we are not responsible.”

“The clear potential argument from police is ‘we can absolutely not be held accountable for upholding the law, if the law itself is unconstitutional you need to take that up with the lawmakers.’” said Vonn.

Hauk said he also expected the police to offer this defence, but said there aren’t many options for patients who are upset. Outside of posting on social media, writing letters and protesting, Hauk said this is one of the few recourses patients have.

“These patients are desperate,” Hauk said. “They’re feeling very violated. They want justice and want to know what they can do as citizens.”

Vonn said the police may not be able to rely solely on the defence they are just following legal requirements.

“The problem with that argument is it’s one thing to say you have to uphold the law, it’s also true you have discretion in how you uphold it,” Vonn said.

Vonn pointed to places like Vancouver where, despite the same federal laws, local police have largely chosen not to pursue dispensaries.

“What the complainants are talking about is clearly a massive problem,” Vonn said, but pointed to the current system for medical patients as also a large part of the issue.

Vonn believes the federal government’s approach to medical marijuana patients has clearly been discriminatory.  The previous government removed the ability for patients to have the same level of interaction that the average person would receive from a pharmacist for any other prescription.

“They’ve disrupted the contact with providers,” Vonn said. “That integration is denied by the federal government — patients have to go through the mail.”

Vonn said while this is the underlying issue that has created the problem in Saskatoon, it isn’t the exact argument that patients are using against the city and police.

“It’s absolutely intuitive that these patients are being discriminated against. What’s not intuitive is how you get at this.”

Patients in Saskatoon will need to show that they’ve been discriminated against, not by the federal government, but local authorities.

Unlike the court system, where intent needs to be shown, Vonn said the human rights tribunal process aims to be less onerous than the courts and not necessarily focused on wrongdoing.

“The issue isn’t if the party intended to violate rights, it is if it was done anyway,” Vonn said, noting that the tribunals seek to provide a remedy to the issue.

With a new federal government promising to legalize cannabis, Vonn was optimistic about change for medical patients, even if the Liberals haven’t been very vocal on medical marijuana.

“We hope very much we will see the back of this era very soon,” Vonn said. “It would be great to have a good ruling on this going forward.”

Hauk, meanwhile, said he is “beside himself” as he prepares to go back to court Nov. 12 and continue to fight for patients’ rights.

“I hate protesting,” Hauk said. “I want to sit at a boardroom table and have a sensible conversation with someone.”

“I really don’t want to do this, but they’ve given us no other choice.”