Russell’s Ontario Human Rights Complaint

www.rata.ca/complaint

http://www.youtube.com/watch?v=WEJVfbfqgtw

On May 7, 2008, my wife Christine Lowe and I were standing on the front patio of an Alcohol and Gaming Commission of Ontario-licenced establishment (a comedy club, actually) in Ottawa. I had just performed my comedy routine, so we had already been inside the club, and we were deciding whether or not to go back inside for the rest of the show. I was not paid to perform, and we did not buy or use any liquor.

We were chatting with staff who were outside smoking tobacco on their break. My wife and I both have federal Authorization To Possess Dried Marihuana for medical purposes (“medical marihuana licence”) in accordance with ss 4(1), 55 and 56 of the Controlled Drugs and Substances Act, (S.C. 1996, c. 19).

The MMAD regulations state clearly that license holders are allowed to use their medicine where ever tobacco can be used, so we thought we were in compliance with the law. We were about to light marihuana cigarettes (joints), in accordance with the Marihuana Medical Access Regulations from Health Canada (SOR/2001-227).

We were informed by members of the staff, that we could not smoke marihuana on the property, as they had recently been informed that they would be “written up” for an infraction regarding an incident involving the alleged use of marihuana in their parking lot.

When we informed the staff members that we both had medical marihuana licences and that it was legal for us to use marihuana wherever tobacco can be smoked, they informed us that they didn’t know what else to say, because the owner had made this policy. We were asked to not medicate, or, to stand on the public sidewalk to medicate. Embarrassed and humiliated, we decided not to medicate, and left.

It should be noted that the staff members who asked us not to smoke were kind and sympathetic.It should

On May 12, 2008, I spoke to the owner of the club (and liquor licencee) about the incident. He said that his policy was “No marihuana on the premises, period.” I explained that it was a violation of our rights to disallow our use of marihuana. He explained that he had to obey the rules of the Alcohol and Gaming Commission of Ontario. That is when we realized that it was not the liquor licencee or his staff who were violating our rights, it was the system itself violating the liquor licencee’s rights, and ours!

Regulation 719, section 45, subsection 2 of the Liquor Licence Act (R.S.O. 1990, c.L.19) states: (2)The licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder. (R.R.O. 1990, Reg. 719, s. 45 (2); O. Reg. 247/02, s. 17; O. Reg. 24/04, s. 1.)

“Hold” and “consume”. These words are important. The moment my wife and I – or any federally licensed medical marihuana user – steps onto the property of any AGCO licenced establishment, we are in violation of the Liquor Licence Act and Regulations, because there is nothing in the act nor the regulations that specifically allows us to possess or consume marihuana. Nor is there any provision for liquor licencees or their staff to allow patrons, staff, or performers to use legal medical marihuana.

In fact, there is nothing anywhere in any Provincial or Federal Legislation that actually acknowledges our rights to use marihuana.

So I have launched an Ontario Human Rights Complaint against the Ontario Government for failing to amend legislation to accommodate licensed medical marihuana users.

But there is a catch. Queen’s Park can only do so much when the relevant federal regulations are inconsistent and incoherent. You see, Health Canada’s Marihuana Medical Access Regulations are not sufficient to protect our rights, as they fail to comply coherently with any Provincial legislation. Why? Because Health Canada’s Marihuana Medical Access Regulations have never been legislated into actual law.

As they stand now, the regulations are nebulous, changeable on a whim, and as such, they are of questionable constitutionality. There have been several recent court cases, among them R. v. Long, 2007 ONCJ 340 and 341 (CanLII), R. v. Bodnar et al., 2007 ONCJ (unreported), Sfetkopoulos v. Canada (Attorney General), 2008 FC 33 (CanLII), that throw the constitutionality of the entire Controlled Drugs and Substance Act, as regards to marihuana, into question.

That is the basis of our other compliant against the Canadian Government. They have had eight years to amend the CDSA, and any other relevant legislation, or pass other legislation, that would clear this whole thing up. They have not done so, nor have they even tried, and that is the reason we are pushing this issue. The Federal Government’s continued inaction has caused our rights, and the rights of many other medical marihuana users, to be violated.

We are just in the process of getting that started, as the people at Canada Human Rights were under the impression that we “were only allowed to use our medicine in private”. I sense a deliberate delay, but can’t prove it, obviously.

I told them to read Health Canada’s Marihuana Medical Access Regulations and The Ontario Liquor Licence Act closely: As it is now, the law forbids my wife and I from using or possessing marihuana in any licensed establishment in Ontario, possibly even in Canada, period.

Listen; In Ontario, if the liquor licencee or his staff allow my wife and I into the licenced establishment, knowing that we are in possession of marihuana, they are in violation of the Liquor Licence Act. If they allow us into the licenced establishment knowing that we have just used marihuana, they are in violation of the Liquor Licence Act.

However, if they refuse us entry, based on the fact that we have just used, or are in possession of marihuana, or disallow our use of marihuana on the patio or parking lot, then we are being discriminated against.

This infringes on our rights to gain access to services, and infringes on our ability to perform on stage, and to seek possible future employment as performers. It has also caused us much stress, ill health, embarrassment, and humiliation.

Even though we have medical marihuana licences, Regulation 719, section 45, subsection 2 of the Liquor Licence Act Regulations make no distinction nor makes allowance for people with medical marihuana licences. This lack of coherent legislation on the part of the Ontario Government, places my wife, myself, the licenced establishment owner, his staff, and every liquor licencee and staff member in Ontario in a legal conundrum: obey the regulations of the Liquor Licence Act and violate our human rights, or allow us to possess and use marihuana, and risk their liquor licence. This is a huge risk for all liquor licencees and staff. It is a no-win situation for everyone involved, yet it is the government that is at fault.

Even if we use our medicine across the street, the smell off of our clothes, our breath, our manner, and the redness of our eyes could all be grounds enough for an inspector to write up an “infraction” against the liquor licencee. “Liquor licencee did knowingly allow a man ‘intoxicated’ on marihuana to perform on stage.” would be a pretty hard charge to beat, especially when the performer in question is a bearded, red-eyed, long-hair talking specifically about his medical marihuana licence and use.

Even the AGCO inspectors themselves are stuck, because they have no legal jurisdiction to ask anyone if they possess a medical marihuana licence or not, even if that person is on stage talking about his marihuana licence. Inspectors are forced to report such observable violations, or risk their job. As such, they also risk violating the rights of licenced medical marihuana users, simply by doing their job! So I couldn’t even file a complaint against the AGCO inspector(s), because I have never spoken to one (that I know of), and besides, their hands are tied by The Act.

I know. It is completely absurd.

The guy at the Ontario Human Rights Commission was adamant that I had “to file against the bar owner and the staff member” who asked us not to smoke. I kept refusing, on the grounds that they did nothing wrong, they were simply complying with the Provincial Law. After I read him the relevant portion of the Liquor Licence Act and the Health Canada regulations, he finally got it.

So, as of May 26, 2008, my Ontario compliant is in the mail, and my Canada complaint is sure to follow. I have also sent excerpts to my MPP, Gord Hunter, my MP, John Baird, my MPP, Jim Watson, Ontario Premier Dalton McGuinty, John Tory, and Howard Hampton.

We decided not to ask for any “damages” as in, money. It would probably just slow things down, and it hardly seems fair to spend even more of the province’s money. Besides, more complaints are sure to follow, and whether complaintants got $100 or $1,000,000 from it, the law will still need to change. With the law the way it is, medical marihuana users are barred from entry at thousands of bars and restaurants. Also, hospitals, schools, and retirement homes.

No amount of money can fix that.

And no, this isn’t a ploy or prank designed to forward my non-existent comedy “career”. My health simply does not allow me to persue it past a hobby.

And no, we aren’t looking for the right to smoke pot indoors. We aren’t even demanding this or that as far as rights go… (although, allowing us to medicate where ever tobacco is used seems only fair). We just want the law to be amended to recognize us.

Stay Tuned.

Russell Barth, May 26, 2008.