Criminal Law

Pot dispensaries the product of gov't missed messaging

The Crown will have to look at various issues around whether there is a reasonable prospect of conviction for those caught up in a recent series of marijuana dispensary raids, Toronto criminal lawyer Joseph Neuberger tells the John Oakley Show.

“Are they dealing with dispensaries that are providing only to patients who have real medical needs. They will have to distinguish to some extent between owners and operators and mere employees,” he says.

Neuberger, partner at Neuberger & Partners LLP, says many people have been subject to these charges and it’s unfair.

“They may have a defence based on a constitutional exception because of the government’s ineptness in dealing with this (issue) properly,” he says.

Neuberger comments following the series of police raids at 43 Toronto storefront marijuana shops last month. Officers arrested more than 90 people.

Neuberger says back in 2004, his was one of the law firms involved in bringing an application against the medical marijuana access race.

“We’ve worked for years with various parties trying to get rid of the sole source of production and that changed,” he says.

Neuberger says even after that changed and individual regional growers were licensed, access to medicinal marijuana remained an issue because the patients who have a licence to use medical marijuana still have a real problem obtaining it.

“So compassion clubs have existed for a long time and that led to some of these dispensaries,” he says. “The difficulty is there is no regulation or law allowing it. The law has not changed. You can only get (medicinal marijuana) through these licensed growers, typically by mail, and there is no legal allowance for these dispensaries. But they have come out of missed messaging from governments.”

Neuberger says people come to him for legal advice about whether to buy from these marijuana dispensaries. “You can, but you run the risk of being charged with possession and trafficking,” he says.

Neuberger says the dispensaries are “filling a void.

“If you are using medicinal marijuana and you have a prescription ... you’re a bit at a loss to get your medicine through the mail from some producer,” he says.

Neuberger says for many “it’s better to go to a local source where you know the people.”

The problem is there is no regulatory regime in place to help the people who need it most obtain the drug and to regulate it so that marijuana is not accessible for those who shouldn’t have it, he says.

“We have an obligation to protect our youth and to make sure they don’t have access to it,” he says.

And as far as how to regulate it, Neuberger says “don’t underestimate the government’s desire to get tax.”

And for that reason, he expects that the government will not open up the regulated sale of medicinal marijuana to dispensaries because “that would create a regulatory regime that I don’t think they will be able to put into place properly in the next couple of years.”

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