MONDAY MAGAZINE - MAY 14 issue

Busted growers
aim to smoke
Health Canada program

If Victoria deputy police chief Bill Naughton takes the stand in a drug trial starting this week, he will testify on behalf of two men accused of growing marijuana. While it’s strange for a police officer to defend alleged pot growers in court—and it’s not yet certain he will appear—the grow-op in question was an unusual one.

West Shore RCMP officers arrested Michael Swallow and Mathew Beren during a May, 2004, raid of an East Sooke site that provided high quality cannabis to the Vancouver Island Compassion Society. The VICS, in turn, supplied the cannabis from the site to patients who were using it to treat various ailments.

“This was different from your normal grow-op,” says Philippe Lucas, VICS executive director and a former city council candidate. “We don’t deny anything we’re doing. It’s the questions of why and how that are the main issues.”

Lucas says Swallow was just visiting the facility and not actually involved. RCMP officers charged Swallow and Berens with production of marijuana and with possession of more than three kilograms of the drug for the purpose of trafficking.

For several years medical marijuana has existed in a convoluted legal grey area. Since a 2001 decision, says Kirk Tousaw, a Vancouver lawyer working on the case, Canada’s prohibition laws have been deemed constitutional only as long as there is an adequate program in place to provide marijuana to medical users. The program is in place, he says, but it’s not good.

“It’s still tremendously difficult for people to become licensed medical marijuana users and it’s still very hard for people to access a quality supply of medicine,” says Tousaw, who is a board member of the B.C. Civil Liberties Association. The government started buying marijuana grown in an abandoned mine in Manitoba and supplying it to some registered medical marijuana users. “We don’t think the government’s monopoly supplier—which only produces a single strain that’s been the subject of some criticisms by users—we don’t think that’s good enough for the very sick people who use medical marijuana in this country.”

In 2003 the courts ordered Health Canada to make changes to its medical marijuana program that Tousaw says have not yet been made. “We’re now five or six years into this program and it’s still not doing the job it needs to do for sick people in this country,” he says.

A spokesperson for Health Canada did not return calls by press time.

Lucas says the VICS legal team will argue the facility was filling a legally-recognized need the government was unable to fill. “Our goal is to illustrate the problems with the federal medical marijuana program.” He describes the site, which cost around $40,000 to start, as a “white labcoat” operation where growers developed strains to treat particular conditions. If they had two strains that worked well for chronic pain, for instance, they would breed them together to see if they could create a plant that did an even better job.

“We lost about four or five years of strain research just through that raid,” says Lucas. RCMP officers destroyed some 900 plants. “They chopped and took everything.”

Two officers who were at the raid declined to comment while the case is before the courts.

The facility also grew marijuana to use in clinical trials, and hemp, with none of the high-causing active ingredient THC, to use as a placebo in VICS research. The growers even had plants growing from seeds provided by the federal government to show that better growing techniques could improve the product Health Canada was offering medical marijuana users. “It didn’t have to be as poor quality as what they were sending out,” says Lucas.

At the time of the raid, the VICS was helping over 400 patients. It was one of two clubs in Victoria providing medical marijuana in the city, and one of a handful of such groups across the country. Since the raid VICS has grown to some 660 patients, but it was driven back to buying cannabis on the black market at a higher cost.

Lucas says if deputy chief Naughton testifies, it will be to talk about the advantages of supplying marijuana to medical users in a way that doesn’t require them to buy it on the street corner, and on the lack of complaints about the VICS clinic on Cormorant Street near the provincial ministry of health.

Confirmed witnesses will include Colorado researcher and biology professor Bob Melamede, Canadian AIDS Society consultant and former Health Canada epidemiologist Lynne Belle-Isle and Conservative senator Pierre Claude Nolin. Nolin chaired a 2002 senate committee that recommended legalizing marijuana. Several VICS members will talk about the stress and other effects of the raid.

The judge could legalize VICS’s work, says Lucas, and the case could also result in the court legalizing marijuana for all users. If cannabis prohibition prevents people who are legally allowed to use medical marijuana from getting their medicine, then those laws could be found to be unconstitutional. Says Lucas, “Although that’s not the goal of our case, that’s a possible outcome.”

Or as Tousaw puts it, “If we didn’t have marijuana prohibition, sick people wouldn’t be in danger of going to jail.” Tousaw has also worked on high-profile cases representing Marc Emery and Steve Kubby, and he advocates reforming Canadian drug laws. “It’s clear to me, and to anyone who takes a long hard look at this, marijuana prohibition is a failed policy.”

The constitutional challenge will cost around $100,000, Lucas says. The VICS has already raised about half of that through donations and continues to fundraise. “The other half is still a struggle for us.”

Lucas says there are over a million medical marijuana users in Canada. The federal program to provide the medicine has only registered 500 users. Compassion societies across the country help over 10,000 people. Asked where the rest get their medicine, Lucas says, “They’re buying it on the street corner and frankly they’re vulnerable to arrest right now.”

B.C. Supreme Court to Hear Constitutional Challenge of Federal Medical Cannabis Program
Contact:
Philippe Lucas 250-884-9821 phil@thevics.com
Kirk Tousaw 604-836-1420 ktousaw@johnconroy.com

May 4, 2007: In May of 2004, the Vancouver Island Therapeutic Cannabis Research Institute (VITCRI), a research and cultivation facility overseen by the Vancouver Island Compassion Society, was raided by the West Shore RCMP. Mat Beren and Michael Swallow were charged with multiple counts of cannabis production, and over 900 plants were seized and destroyed, temporarily leaving the critically and chronically ill members of the VICS without a safe source of medicine.

The ensuing court case and Constitutional challenge - which is taking place from May 9th-18th in B.C. Supreme Court, 850 Burdett Avenue - will establish that the federal medical cannabis program is violating the constitutional rights of critically and chronically ill Canadians by a) unnecessarily restricting access to the program; b) supplying an inadequate source of cannabis; and c) instituting arbitrary limitations on production and distribution.

"This ineffective, onerous and expensive program has long been an impediment to safe access" says Philippe Lucas, a medical cannabis user and founder of the VICS, "and clearly isn't protecting Canada's sickest citizens from arrest for their use of medical cannabis". The VICS legal team consists of Mr. John Conroy QC from Abbotsford, BC, and Mr. Kirk Tousaw. Witnesses for the defense include Senator Pierre-Claude Nolin (chair of the Senate Special Committee on Illegal Drugs), Dr. Robert Melamede (Biology professor at the University of Colorado, Colorado Springs). "We look forward to challenging the constitutionality of these regulations and demonstrating to the court that Health Canada is not meeting its obligations to Canada's critically and chronically ill", says Mr. Tousaw.

If successful, this challenge will make the legal medical use of cannabis more accessible, and potentially legalize the community-based distribution of cannabis. A similar challenge in Ontario from 2003 resulted with the courts striking down the prohibition on the recreational adult use of cannabis in Ontario, thereby legalizing the personal use of cannabis for over 18 months. This case may lead to a similar outcome in B.C.

Quote:

---

NOTICE OF CONSTITUTIONAL CHALLENGE
Court File No. 131900
Victoria Registry



IN THE SUPREME COURT OF BRITISH COLUMBIA




BETWEEN:


HER MAJESTY THE QUEEN



RESPONDENT


AND:


MATHEW BEREN
and
MICHAEL SWALLOW



ACCUSED/APPLICANTS



NOTICE OF CONSTITUTIONAL CHALLENGE

(Pursuant to s. 8(2)(a) or (b)
of the Constitutional Question Act
R.S.B.C. 1979 c. 63)



TAKE NOTICE that an application will be made before the trial judge presiding, at the Supreme Court of British Columbia at 850 Burdett Avenue, Victoria, B.C. at 10:00 o’clock in the forenoon on the 31st day of October, 2005, or so soon thereafter as counsel may be heard for relief by way of an appropriate and just remedy pursuant to s.24 (1) of the Canadian Charter of Rights and Freedoms, Part I, Schedule B of the Constitution Act, 1982, including a declaration of constitutional invalidity under s.52(1) of the Charter to the effect that or on the grounds that:
S.5 (trafficking and possession for the purpose of trafficking) and s. 7 (production) of the Controlled Drugs and Substances Act (insofar as they are applicable to Schedule II prohibited substances, namely, cannabis, as defined in the Schedule and the Medical Marijuana Access Regulations pursuant thereto, are unconstitutional as being inconsistent with, contrary to, and/or in violation or conflict with s. 7 of the Canadian Charter of Rights and Freedoms, to the extent that they failed, during the material period, to adequately provide for a safe, secure and reliable supply of Cannabis (marihuana) for those constitutionally entitled to possess and use such for a serious medical condition under the principle underlying the decision of the Ontario Court of Appeal in Parker;

R. v. Parker [2000] O.J. No. 2787 (Ont. C.A.);


AND TAKE FURTHER NOTICE that in support of the application, the Applicants will refer to:
(1) The facts, circumstances, evidence and other information arising in these proceedings, pursuant to information number 111409-1/05 in the Provincial Court of British Columbia and indictment 131900 - 05 in the Supreme Court of British Columbia, to date, and in particular the facts with respect to the nature of the VITCRI and the VICS and their members and how they provided a safe, secure, and reliable supply of cannabis (marijuana) to not only approximately 35 federal MMAR exemptees but also to all its registered club members (now totalling approximately 500 members), thereby ensuring they would not have to access the black market and would get a safe, reliable, secure and dependable supply from their own club or group while taking appropriate safeguards to ensure no leakage into the black market of cannabis so produced;

(2) The pleadings, proceedings, submissions and judgments in this and other medical marijuana cases, including in particular the reasons for judgement in Parker and cases following thereon such as Hitzig, October 7, 2003, Ont. C.A. and up to and including the recent decision of Chaperon PCJ in B.C.P.C. Victoria in Smith;
R. v. Parker [2000] O.J. No. 2787 (Ont. C.A.);
Hitzig v. Canada (2003-10-07) ONCA C39532;C39738;C39740;
R. v. Smith and Budda (07/09/04) Victoria Registry No. 118904;

(3) The decisions of the Supreme Court of Canada in Morgentaler, Smoling and Scott;
Morgentaler, Smoling and Scott. v. The Queen [1988] 37 C.C.C. (3d) 449 (S.C.C.);

(4) Such further and other materials and authorities as counsel deems advisable at the hearing of this matter.


DATED at Abbotsford, British Columbia, this - dayof October, 2005.


___________________________________
JOHN W. CONROY, Q.C.
Counsel for Applicants


TO: Federal Crown Lori McMorran
McConnan, Bion, O’Conner,Peterson
420 - 880 Douglas
Victoria, BC
V8W 2B7 AND TO: The Attorney General of B.C.
Legal Services Branch
1001 Douglas Street
Victoria, BC V8V 1X4

http://thevics.com/legal/const_chall.htm

http://thevics.com/legal/const_chall_pr.htm

http://thevics.com/

---

go kirk! do us proud dude!

I just finished sending out press releases to over 1,200 news emails and faxes accross North America. I've been waiting a long time for Conroy, Tousaw and Lucas to start this laws suit. Glad it's finally started today. Hopefully some media picks up on this.

goodster

The recent news items about Health Canadas exhorbitant markup of thier med-pot seems to me to be an impediment to access and therefore relevant to this suit.

Does anyone know if they are including it in the suit?

Good question and one I do not know the answer too as the markup news is recent and the VICS challenge just started. This case will affect all medicinal users in Canada, I am confident that John Conroy, Philippe and Kirk will conquer for us all!
xoMichy

Whooohooo Go Kirk Go!

(maybe do a LegalEase show on this eh?)

www.pot-tv.net/archive/shows/pottvshowse-4470.html

Join Kirk as he discusses the upcoming court date for the BC3 and his constitutional challenge with the Vancouver Island Compassion Society.

POT-TV seems to be down right now, but Kurk's show is on YouTube.
http://www.youtube.com/watch?v=XmraUDEeuXg
Views: 2,322 |Comments: 25 |Favorited: 10 times

Quote:

---

thekidnapsoundtrack (1 month ago)
good post

ashluh (1 month ago)
I'm glad they're now posting your show on YT.
Thanks for what you do, Kirk. :]

Crazyman1212 (1 month ago)
this guy makes me feel safe about smoking pot.

Opus420 (1 month ago)
thanx for the update Kirk! ....we coulda used the court dates for the VICS challenge... but I can find it.

RevAnthony420 (1 month ago)
Maybe Cannada should withdrwall its self from the US drug treaty they singed with the US back in the 70's. Nark Emery is an exploit and is only doing this to make money. The US has closed down all of cannada seed venders even OG site for seeds. No other cotuntry got attack for selling seeds only Cannada. I also see the drug houses nark emery has around his block giving people a safe place to shoot up and to do their hard drugs. Right next to a cannabis smoking room go figure huh.

JodieEmery (1 month ago)
Ummm... no, Marc and I live in an apartment in downtown Vancouver. There are no "hard drugs" being used. OG was closed down because of Heaven's Stairway and the other groups they were associated with. Every other seed vendor is still here in Vancouver, and across Canada. Get your facts straight, "Reverend".

RevAnthony420 (1 month ago)
Just like I said OG was closed down for selling seeds Heavens Stairways was their seed Company. They gone after all the big name people. Also I really dont care where Nark Emery lives I was talking about the heroin and crack House they have in Vancouver for ppl to shoot up in a safe spot. Or did they shut them down too. Mark Emery is a bad name he brought all this on him self. Just like you said "Hanging out with the wrong people".
"Nixxta" Thats what I would think a crack head would say!

CharlieJ (1 month ago)
Rev,

Why be so antagonistic?

Marc et al have made huge contributions of personal time & money for human rights, decriminalization of MJ, and the failed war on drugs. He's obviously not in it for money, but for PEOPLE. He's for restoring our freedom to choose how we live our lives without persecution or prosecution. Making noise to help people of the world should not be penalized by extradition and life imprisonment.

Peace,

CharlieJ

nixxta (1 month ago)
Dude, you make no sense. You said "All of Canada's seed vendors" and that certainly is false. Now you say "all the big name people." I hate to break it to you, but there are many, many seed operators out there operating. You reek of propaganda. You sound like one of John Walters' trained robots. If you're going to post, at least write something credible. Marc Emery has done nothing but good for the legalization cause, and many people can vouch for that. Which cause are you sacrificing for?

RevAnthony420 (1 month ago)
Ok so "ALL". I stand corrected so what I can take it. Your just mad because I know the truth about Mark Emery and you know it. He sat at the Police station in Canada and smoke right after they decriminalized the cannabis plant? The way put they put down law enforcemt with their propanda is it any wonder why. "Exploiters will be Exploited" thats the game Mark Emery wants thats the game he gets.
So until next time your magic Druid cannabis smoking rev says; Puff, puff.

WarriorsKungFu (4 weeks ago)
You dont have a clue. I cant wait till you lose your freedom. The cannabis plant is a beauitfull plant that we are a part of as we are one with the earth that we came from. To make any plant elegal is like making your arm elegal. Why not just go pop some pills from the true drug dealers (shopers drug mart) and get your drugs from the real pushers (doctors)

RevAnthony420 (4 weeks ago)
Yeah WarriorSkungFu its all about money just as you said. I also will never lose my freedom because for one I dont exploit off the cannabis plant. You can't jail a man for smoking a sacrament. Let freedom ring.

bongstoner420 (1 month ago)
nark emery? comeon

nixxta (1 month ago)
RevAnthony, maybe should go and get yourself educated on the information you're spewing. First, your opinion of Marc is just that-your uneducated, propaganda-laden opinion. Second, the US hasn't closed down all Canada seed vendors. Thirdly, if people want to shoot up, that's their business. If they're doing harm to nobody but themselves, then you have no say in the matter. How can you smoke cannabis and then harp on another person's life choices? Sounds pretty hypocritical eh? BTW, it's CANADA.

oakXXIII (1 month ago)
...right on nixxta...kirk is a friend of mine and all i have to say about him is positive...he is one dedicated mutha...you rock kirk, keep the faith...
OAK

ace0spades (1 month ago)
Great video, good luck in preparing for the trial... I hope everything works out for the best.

RevAnthony420 (1 month ago)
Oh yeah, If Mark Emery really wants to help people maybe he can spell check for me. Thats doing a lot more then what hes doing now. ~

CharlieJ (1 month ago)
Thanks for the update, Kirk! Best to you and all of the effort you are putting in for the BC3.

RevAnthony420 = incoherent rambling. :-)

red420CM (1 month ago)
All the people at PotTV are awesome, and I don't know what Anthony's problem is, but it's pretty funny anyway. I'd love to know what he has done for Cannabis legalization that he can hate on Marc. I don't see the DEA coming after him, with his quick judgements. I'm done..

echoandi (1 month ago)
Thank You Kirk! Keep up the great work.

strat2caster (1 month ago)
AWESOME DUDE THANK YOU !

YangPile (1 month ago)
good job man, keep it up! I might move up there some day...

dreamer77dd (1 month ago)
i think Marc is doing good for marijuana, he is putting his life on th eline all the time and this time it's for real. Why can't people have the choice to do what they want in there homes if they are responsible adults. If he goes to jail it will get really quiet after people protest for him. No body seams to go on tv for this cause or speak as openly. there are a few out there but I have seen more of him then most of the others. Thats all I have to say.

dreamer77dd (1 month ago)
i think Marc is doing good for marijuana, he is putting his life on th eline all the time and this time it's for real. Why can't people have the choice to do what they want in there homes if they are responsible adults. If he goes to jail it will get really quiet after people protest for him. No body seams to go on tv for this cause or speak as openly. there are a few out there but I have seen more of him then most of the others. Thats all I have to say.

RastafiedMan (4 weeks ago)
Enjoyed this much, please keep us updated here on YouTube. This is whole situation with the extradition is so appalling and immoral!

---

I hope to see this whole MMAR DISMANTLED!
Let the medusers group/union and compassion clubs look after the sick and suffering canadians.... like they
have been doing all along.

Health Canada has only added stress and grief to the ill and suffering... ... and tried to poison them with extreme garbage weed

...not to mention threats of takeing away our grow permits, forcing us to buy crap weed from them at a 1,500% MARK UP!!!
Stupid rules, like not sharing WITH ANOTHER EXEMPTEE!!...
A wanna see Health Canada bleed from the ears!!


**I wouldn't shed a tear if someone went Virgina Tech on their ass!

I was just reading "Marijuanan RX", and I thought "Randall v. U.S" would be a handy case to have on hand during this trial - but they've probably thought of that already.



http://en.wikipedia.org/wiki/Compassionate_Investigational_New_Drug_program

The Compassionate Investigational New Drug Study program began in 1978 after a lawsuit was brought against the Food and Drug Administration, Drug Enforcement Administration, National Institute on Drug Abuse, Department of Justice, and the Department of Health, Education & Welfare by Robert Randall (Randall v. U.S). In 1976, Randall, afflicted with glaucoma, had successfully used the Common Law doctrine of necessity to argue against charges of marijuana cultivation because it was deemed a medical necessity (U.S. v. Randall). On November 24, 1976, federal Judge James Washington ruled:

While blindness was shown by competent medical testimony to be the otherwise inevitable result of the defendant's disease, no adverse effects from the smoking of marijuana have been demonstrated. Medical evidence suggests that the medical prohibition is not well-founded.

The criminal charges against Randall were dropped, and following a May, 1976 petition filed by Randall, federal agencies began providing him with FDA-approved access to government supplies of medical marijuana, becoming the first American to receive marijuana for the treatment of a medical disorder. Randall went public with his victory and, shortly after, the government tried to prevent his legal access to marijuana. This led to the aforementioned 1978 lawsuit where Randall was represented pro bono publico by law firm Steptoe & Johnson. Twenty-four hours after filing the suit, the federal agencies requested an out-of-court settlement which resulted in Randall gaining prescriptive access to marijuana through a federal pharmacy near his home.

The settlement in Randall v. U.S. became the legal basis for the FDA's Compassionate IND program. Initially only available to patients afflicted by marijuana-responsive disorders and orphan drugs, the concept was expanded to include HIV-positive patients in the mid-1980s. However, because of the growing number of AIDS patients throughout the late 1980s and the resulting numbers of patients who joined the Compassionate IND program, the George H. W. Bush administration closed the program down in 1991. At its peak, the program had thirty active patients.