Click here to read the order from the court.
On August 24, 2017 a judge refused a City of Hamilton motion to shut down the Hamilton Village Dispensary on an interim basis until the final hearing which is scheduled for December. Mr. Justice Lofchik of the Ontario Superior Court of Justice effectively ordered that the dispensary could remain open provided they sell cannabis only to patients with a valid prescription. The decision is a powerful statement from an Ontario Superior Court judge about the interim legal status of dispensaries pending a full hearing on the government’s mail order system.
The case was fought by Toronto cannabis lawyer, Jack Lloyd, on behalf of Kirk Tousaw. Mr. Lloyd tenaciously argued that you cannot prohibit dispensaries at a time when the government’s medical cannabis regime is broken. He said the government was disrespecting Mr. Justice Phelan’s ruling in Allard v The Queen in which Mr. Justice Phelan of the Federal Court said that dispensaries are at the heart of access and found the medical cannabis regime to be unconstitutional. The government did not appeal the Allard decision. Instead the government purported to fix the problem. But, it is not fixed and the government is not in a position to say it is fixed. Mr. Lloyd made that clear.
The decision is an important one for medical cannabis patients. The mail order system might work for some, but for many it does not provide reasonable access. The mail order system tends to fail older cannabis patients of more modest means. The mail order system requires computer literacy, computer access, a bank account, sufficient funds to make minimum purchases, no need for urgent purchases, no need for a range of strains/ products, and a home where you can receive cannabis by mail. That is not reasonable access. Further, it is reasonable to want to have the option of walking out and shopping around rather than being bound to purchase from the mail order company with which you are registered. It is reasonable to want to see and smell your cannabis medicine as well as speak in person with a knowledgeable budtender before you purchase it. Reasonable access must include storefronts.
The solution is as easy as cannabis is remedial. The government need not wipe out the mail order system, just supplement it with storefronts. It should be simple. This court decision will make it easier for the government to do the right thing.
Paul Lewin, @PaulLewinLawyer