Law Times

Page 14 July 13, 2015 • Law Times www.lawtimesnews.com Medical marijuana Lawyers navigating complex world of new regulations By michael mckiernan For Law Times irk Tousaw has always been a thorn in the side of authority when it comes to the laws sur- rounding marijuana. His interest in the legal po- sition of the drug dates back a long time. As a 15-year-old, he was busted for possession in his home state of Michigan. "I thought it was completely unjust," says Tousaw. Soon after, a visit to his high school from the state governor provided the perfect vehicle for Tousaw to take his protest to the highest levels of the Michigan establishment. "The night before the visit, we had used my friend's dot- matrix printer to produce this big banner. Then we broke in before school and hung it up in the hallway," says Tousaw, who also demonstrated some de- veloping tactical skills during the operation. "We didn't want to hang it up in the gym because we figured someone would see it there and tear it down before anyone arrived." According to school leg- end, the ploy worked with Michigan's then-governor Bill Milliken, a man famous for signing the state's notori- ously harsh mandatory mini- mum drug sentencing law, welcomed by a sign that read: "Legalize Marijuana Now!" "The principal was not pleased," says Tousaw. These days, the targets are much the same. Instead of tussling with the government of Michigan, Tousaw's chief adversary today is the federal government of Canada, where he now makes his home. The venue for the fight has changed, though, migrating from high school hallways to courtrooms across the country, including the highest one in the land. Earlier this year, Tousaw, the principal of Duncan, B.C.- based Tousaw Law Corp., ap- peared at the Supreme Court of Canada, acting as counsel to Owen Edward Smith, a producer of edible and topi- cal forms of medical marijua- na. Since the medical mari- juana access regulations that governed the medical use of the drug limited possession to dried marijuana, Smith found himself arrested and charged with possession and trafficking of cannabis. "We think it's inappro- priate to force someone to smoke dried marijuana when eating it or applying it topi- cally could provide better re- lief with fewer side effects for some people," says Tousaw. In 2012, a B.C. Supreme Court judge acquitted Smith and ruled the restriction to dried forms of marijuana breached s. 7 of the Charter of Rights and Freedoms. The prov- ince's appeal court upheld the decision in 2014 and last month, a unanimous seven-judge panel of the Supreme Court of Canada agreed, finding "no connection" between the restrictions and the health and safety of medical marijuana patients. "It is therefore difficult to un- derstand why allowing patients to transform dried marihuana into baking oil would put them at greater risk than permit- ting them to smoke or vaporize dried marihuana. Moreover, the Crown provided no evidence to suggest that it would. In fact, as noted above, some of the materials filed by the Crown mention oral ingestion of cannabis as a viable alterna- tive to smoking marihuana," the court wrote in its June 11 deci- sion. "Finally, the evidence estab- lished no connection between the impugned restriction and attempts to curb the diversion of marihuana into the illegal market. We are left with a total dis- connect between the limit on liberty and security of the per- son imposed by the prohibition and its object. This renders it arbitrary." The edibles case was just one in a series of Charter challenges brought by Tousaw on behalf of clients. After moving to Van- couver in 2002, a year after the federal government unveiled the regulations, Tousaw worked with marijuana activist Marc Emery and John Conroy, a law- yer also involved in the medical marijuana issue. "We argued several times that the regime was arbitrarily restrictive," says Tousaw, who estimates this kind of strategic litigation currently makes up about a third of his practice. The rest of his practice in- volves defence work for people charged criminally with mari- juana-related offences and reg- ulatory activities on behalf of dispensaries and producers of marijuana. According to Tousaw, the regulatory side of the practice has ballooned in recent years after the federal government re- placed the old regulations with a new regime. "They've sanctioned larger operations but they've taken away the rights of patients to grow their own, so they've gone too far in the other direction," says Tousaw. In addition, just last month Vancouver's city council ap- proved its own bylaw to regu- late the city's booming medical marijuana retail market. About 100 dispensaries are currently in business throughout the city. "Three or four years ago, the With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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(prices subject to change without notice) 2015 ONTARIO LAWYER'S PHONE BOOK THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Untitled-4 1 2015-07-08 12:27 PM K Kirk Tousaw has seen the regulatory side of his marijuana-related practice grow significantly in recent years. See Legal, page 15 FOCUS FOCUS

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