Judge Shuts Down Weed Dispensary Owner’s Claim That His Arrest Was Unconstitutional

Marek Stupek called the decision a “cop out” and said he will continue selling medical weed.
Manisha Krishnan
Toronto, CA
March 23, 2018, 5:42pm
Marek Stupek's constitutional challenge against his arrest in a dispensary raid has been rejected. THE CANADIAN PRESS/Colin Perkel

An Ontario judge shut down a medical weed dispensary owner’s claim that his arrest during Toronto police’s Project Claudia raids was unconstitutional. A successful outcome could have paved the way for thousands of charges issued during dispensary raids to be tossed out.

Marek Stupek, owner of two medical pot dispensaries in Toronto called the Social Collective, was charged with two counts of possession for the purpose of trafficking in May 2016. Stupek, who claims he has rigorous standards and only provides cannabis to sick patients, claimed through his lawyer that the charges are unconstitutional because the federal government has not adequately provided Canadians with access to medical cannabis.

Stupek’s lawyer Alan Young argued the challenge based on two previous court decisions. One, known as the Parker decision, found that a blanket criminal prohibition on using cannabis is unconstitutional because some Canadians benefit from it medically. The other, called the Allard decision, ruled that the federal government’s Marihuana for Medical Purposes Regulations was unconstitutional in that “under the single source system of a Licensed Producer [LP] there is no guarantee that the necessary quality, strain and quantity will be available when needed at some acceptable level of pricing.” The ruling, issued in February 2016, also found that banning patients from growing their own weed is unconstitutional.

The ruling gave the government six months to create a new regime, known as the Access to Cannabis for Medical Purposes Regulations. The new rules give patients the right to grow, or designate someone to grow for them, but aside from those options everyone else must continue to order medical weed by mail through the LPs.

Stupek argued that when he was raided in May 2016, there was no constitutionally valid medical weed regime in Canada, and thus his arrest was illegal.

In a Toronto courtroom Friday, Justice Heather McArthur rejected Stupek’s challenge on several grounds. She noted that in the Allard decision, the judge essentially gave the government a six-month grace period, during which the old MMPR system remained in effect; Stupek was arrested during that period and because of that, McArthur said it is legal for him to be prosecuted and convicted even if the MMRP was declared unconstitutional. She also said the Parker decision does not apply to possession for the purpose of trafficking—only possession.


Outside the courtroom Friday, Stupek called the decision a “cop out.”

“If you cannot afford the system being provided by the licensed producers, it is the same thing as not having it,” he said, noting his patients have serious illnesses and in some cases are dying of cancer. “My patients cannot afford a $350 ounce of cannabis and I’ve been selling it for the past 25 years at $125.” He said he will continue to operate his dispensaries.

The federal government has said it is not going to change the medical cannabis system as part of legalization—a decision Stupek said “baffles” him.

“You mean they’re going to extend the criminality of this stupid system?”

He said has no opinion on recreational weed dispensaries and doesn’t care if they get shut down.

He will be back in court in October to directly challenge the Controlled Drugs and Substances Act and the constitutionality of the federal government’s mail order system. The argument will likely focus on the idea that medical patients should be allowed to access cannabis through storefronts.

“Some of these people should be proud of what they’ve done, not criminalized,” Stupek’s lawyer Young told reporters. “I’ve been with Mr. Stupek, he’s been doing this for 20-25 years and has done enormous work with sick people, providing various different strains at a very low cost and giving away marijuana.”

He described the police and city’s decision to shut down medical pot shops as a “supreme waste of time.”

In February, nearly 300 charges against weed dispensary workers in Toronto were withdrawn in exchange for peace bonds.

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