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Vol. 35, No. 41 MARCH 11, 2016 lawyersweekly.ca

Inuit detainees Winning lawyer hopes for path face ‘deplorable’ out of deepest weeds on pot file jail conditions LUIS MILLAN Judge says restrictions against small-scale growers unjustified Nearly three years after the president of the Quebec legal CRISTIN SCHMITZ society warned the provincial OT TAWA government about appalling conditions faced by Inuit The latest Charter ruling striking inmates, the province’s ombuds- down the federal medical mari- man upbraided the government juana regulation regime as arbi- for turning a blind eye to the trary and overbroad could help daily violation of basic human the Liberals implement their rights, unacceptable detention campaign pledge to legalize mari- conditions and systemic short- juana for recreational use, sug- comings in the administration gests the lawyer who has led a of justice in Nunavik. series of successful court challen- Unsanitary and overcrowded ges to Canada’s cannabis laws. holding cells, nauseating Federal Court Justice Michael odours, soiled bedding, Phelan’s Feb. 24 decision declar- inaccessible showers, sanitation ing invalid the Marihuana for facilities that fail to provide Medical Purposes Regulations detainees with privacy and pris- (MMPR), implemented in 2014 oners having to eat their meals by the Conservative government, on the floor are among some of could be an educational tool for the more disturbing findings the successor Liberals because made by Quebec Ombudsman the court debunks persistent con- Raymonde Saint-Germain, who cerns — not borne out by evi- likened Nunavik’s detention dence, the judge found — that the and justice system to the Third licit small-scale production of World. Just as troubling were marijuana often leads to fires and Abbotsford, B.C. lawyer John Conroy sees a way ahead on marijuana legalization for Justin Trudeau’s Liberals her findings that detainees are mould, as well as thievery, vio- given his recent victory in Federal Court, but acknowledges that Ottawa may still opt to appeal the decision, if kept in cells 24 hours a day lence and black markets, said only to buy time. Alistair Eagle for The Lawyers Weekly because there are no outdoor John Conroy of Conroy & Com- courtyards, with some offend- pany in Abbotsford, B.C., who and make all these comments in found it to be lacking in credibil- acknowledged, however, that ers having to wait as long as won the case along with Kirk the media, and whip up the pub- ity,” Conroy said. Ottawa might instead opt to two weeks in preventative cus- Tousaw and other co-counsel: lic’s fear’s over cannabis, by these He said he hopes the judgment appeal Allard, if only to “buy tody. The Criminal Code pre- Allard v. Canada [2016] FC 237. sorts of statements, and at least helps the public to overcome its time” to come up with an over- scribes a maximum waiting “There [are] still some police we now have a judge who’s exam- fears and the government to get arching approach to regulating time of three days. and fire people who go on and on, ined that evidence and who has on with legalizing cannabis. He Ruling, Page 2 Ombudsman, Page 10

Business Law Intellectual Property BUSINESS & CAREERS Financing The imitation Booming the fight name game opportunities Third party litigation Dressing up a trademark Shift focus of firm funding is expanded not a basis for action as population ages PAGE 12 PAGE 15 PAGE 21

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Contents Ruling: Restrictions as they stood News

Winning lawyer hopes for path out of deep weeds 1 were not just minimal impairment Study says Inuit prisoners face deplorable conditions 1 Continued from page 1 Young, who won a landmark both medical and recreational Charter challenge to Canada’s Assisted dying law poses thorny issues for lawyers 3 cannabis use. prostitution laws that was “We don’t think that there is a unsuccessfully appealed to the Change is posing a dilemma for good ground for appeal there, Supreme Court by Ottawa, said appellate courts 4 with all these findings of fact by there are times when going to the court,” said Conroy, who with the top court makes sense. Not Council is looking for $1 million from feds 5 Tousaw has used s. 7 of the Char- now, he advised. Rather the gov- ter to knock down other barriers ernment should respond to the Focus to cannabis use in the predeces- judgment “and work collectively sor Medical Marihuana Access on the recreational and medical Business Law Regulation (MMAR) struck side together — and if they need Financing the fight 12 down in R. v. Beren and Swallow another six months [to formu- [2009] BCSC 429 and R. v. late their regime], so be it, apply Lifting the corporate veil a rare Smith [2015] SCC 34. for it” in Federal Court, he said. occurrence 13 “The most important thing,” “But I think they should bite the Firms in regulatory purgatory over Conroy said, “is that the [Fed- bullet, and not tie this up with takeover changes 14 eral] Court did find that the pre- further litigation that, to me, is vious government’s attempt to probably doomed to failure, and Intellectual Property take away the ability of medically would not be a very constructive approved patients to produce thing to do for patients who are The imitation game 15 cannabis, or have a caregiver do waiting for a responsible Slip of the pen could sink so for them, violated their s. 7 response from the government trademark registration 16 Charter rights because, again, it as to how to take care of their was irrational, arbitrary and, in medical needs.” Business & Careers the alternative, overbroad.” Justice Phelan held that the Justice Phelan declared that regime’s breach of s. 7 could not Seniors offer booming the constitutional rights of be upheld under s. 1 of the Char- opportunities 21 plaintiff Neil Allard, and three ter as reasonable and demon- More complexity to come with tax other medical marijuana users, strably justified in a free and changes 23 not to be deprived of their lib- democratic society. He noted erty or security of the person, some of the government’s key except in accordance with the expert witnesses were strongly principles of fundamental jus- But I think they should bite the bullet, and not biased against marijuana use and tice, were unjustifiably violated tie this up with further litigation that, to me, is their views were not supported by access restrictions in the by the evidence. MMPR that limited the plain- probably doomed to failure … “I agree that the plaintiffs tiffs to dried marijuana grown have, on a balance of probabil- by licensed producers and took Alan Young ities, demonstrated that canna- away their right to grow mari- Osgoode Hall bis can be produced safely and juana for their own use (or have securely with limited risk to their delegate do so). public safety and consistently “The access restrictions did not with the promotion of public prove to reduce risk to health health,” the judge found. and safety or to improve access “Accepting that fire, mould, to marijuana — the purported The judge awarded the plain- than confining production to diversion, theft and violence are objectives of the regulation,” tiffs their substantial indemnity licensed producers. “You have to risks that inherently exist to a CAREERS 22 Justice Phelan found, in holding costs, but suspended his declara- understand that the Canadian certain degree — although I note CLASSIFIED ADS 19 that the MMPR is arbitrary. “In tion for six months to give the public has been flooded with that these risks were not DIGEST 17 the alternative, even if some government time to enact some- highly exaggerated concerns detailed — this significant LAWDITTIES 14 connection is found, the restric- thing new. about producing marijuana [so] restriction [in the regulation] NAMES IN THE NEWS 4 tion is still overbroad and does Osgoode Hall law professor that this government can’t just punishes those who are able to not minimally impair s. 7 rights,” Alan Young, who successfully turn around tomorrow and say, safely produce by abiding with he concluded. challenged the MMAR in Hitzig ‘People can produce for them- local laws and taking simple v. Canada [2004] 231 DLR (4th) selves,’ because people need precautions to reduce such risk. 104, and Canada (Attorney Gen- some assurance that that’s not A complete restriction is not eral) v. Sfetkopoulos [2008] FCA going to affect house values, cre- minimal impairment.” RICHES, MCKENZIE & HERBERT LLP 328, agreed with Conroy that ate fire risks, etc.,” Young said. He explained that “the mould PATENTS, TRADEMARKS, COPYRIGHT, LITIGATION Allard “completely demytholo- While Allard undercuts such and fire risk are addressed by gizes the dangers of production… concerns, “it takes time for that complying with B.C.’s Safety BARRISTERS & SOLICITORS - PATENT & TRADEMARK AGENTS In theory, there are no risks or information to be diffused Standards Act and installing BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B. harms from small-scale produc- through the general public,” he proper ventilation systems. Fur- JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. tion of marijuana in your noted. Moreover, the govern- ther, as demonstrated by the MICHAEL YUN, B.SC. (BIOCHEM), J.D. THOMAS MCCONNELL, B.SC. (BIOL.), J.D. home — and that’s what STEVEN CHENG, B.A.SC. (ELEC. ENG.), J.D. Allard ment has not shown any willing- plaintiffs, a security system showed — if done right.” ness to spend the millions of reduces risk of theft and violence.

TRADEMARK AGENT MARTA TANDORI CHENG However, Young said it would dollars it would cost to inspect Finally, risk of diversion is also not be easy for the government the production facilities of thou- present in the licensed producer 2 BLOOR ST. EAST, SUITE 1800 TELEPHONE: (416) 961-5000 TORONTO, ONTARIO M4W 3J5 FAX: (416) 961-5081 to make self-production of mari- sands of medical marijuana regime; thus it is not demon- ESTABLISHED 1887 E-MAIL: [email protected]; juana part of its regime for legal- users who grow cannabis them- strated how this restriction has [email protected] izing recreational use, rather selves or via a delegate. the effect of reducing this risk.”