Toronto pot dispensary owner challenges constitutionality of possession law

Madame Justice McArthur hears the case of a Toronto pot shop owner who claims he was arrested under an unconstitutional law. (Sketch by John Mantha)

TORONTO -- The law under which the owner of two medical marijuana dispensaries was charged last year was unconstitutional because a valid program making medicinal pot readily available did not exist at the time, an Ontario court heard on Thursday.

As a result, charges of possession for the purposes of trafficking and having proceeds of crime laid against Marek (Mark) Stupak should be thrown out, his lawyer Alan Young said.

Stupak, 44, operated two "medical marijuana compassion clubs" known as the Social Collective in Toronto. Police charged him in May 2016 under the Controlled Drugs and Substance Act as part of a series of city-wide raids in an operation known as "Project Claudia."

Young cited a 2000 ruling from Ontario's top court that Parliament could not criminalize marijuana use without a program to make medicinal marijuana available to ill patients who needed it.

Other courts, he said, regularly struck down restrictions on reasonable access to the drug. However, Ottawa failed to ensure that access, and dispensaries such as Stupak's sprang up to fill the gap, Young said.

"Project Claudia" made a "concerted effort" to close down all the dispensaries in Toronto but police messed up because they had no law to back their enforcement action at the time of the raids, Young said.

In October 2013, Ottawa began shutting down an existing but criticized program under which patients could grow their own pot or have someone grow it for them for free. The program was replaced in April 2014 with one in which growers were licensed to grow and supply medical marijuana to patients.

However, the new scheme also ran afoul of the courts, Young said. As a result, no valid medical program was in effect between October 2013 and August of 2016, when the government brought in new rules for medical marijuana, court heard.

"The government dropped the ball and there was a gap," Young told Superior Court Justice Heather McArthur. "There was a two-year period where patients were left in the dark and in the cold."

The gap, he said, left patients and their suppliers exposed to criminal sanction. Additionally, if a patient has a right to use and to access the drug, the government must make clear that those who distribute to them are exempt as well, Young said.

"When 'Project Claudia' was initiated, medical patients were in a limbo period in which it was unclear how they were going to access (medical marijuana)," Young said.

For his part, Crown lawyer David Morlog argued Stupak was looking for an "extremely broad" remedy given that the rules in place at the time were in fact constitutional.

"The applicant is seeking retroactive absolution for drug trafficking," Morlog said.

Stupak, Morlog said, is relying on a misinterpretation of a key Federal Court decision in February 2016. In that ruling, a judge found the medical marijuana system unconstitutional, but gave the government six months to fix the issue.

In his submissions, Young argued that evidence as to what exactly Stupak was doing with his dispensaries is not necessary unless the law is upheld. However, McArthur wondered whether she should know more.

"I strongly suggest it's not necessary," Young replied, but McArthur said she would think about whether such evidence would be helpful to her ruling on the validity of the law.

Five other individuals alleged to be owners of medical marijuana dispensaries have joined the challenge but are awaiting its outcome. Young said thousands of other cases could be affected as well.

McArthur put the matter over until Nov. 6, when the parties will discuss whether she needs to hear evidence about Stupak's dealings.