A Hamilton man says his Charter rights were violated and he suffered "cruel and unusual" punishment when he was denied access to medical marijuana while in the Barton Street jail.

That treatment, along with what he believes was his unfair drug arrest, has led Mike Szymczak to launch a legal challenge against the federal government’s new medicinal marijuana laws.

He has filed a submission to the Ontario Superior Court of Justice stating the Conservative government’s move to allow licensed growers to produce and sell medical marijuana is unconstitutional.

The 31-year-old, who experiences chronic back pain stemming from a 2007 car accident, argues the new commercial system will make it too expensive for him to afford his medication, and thus, violates the principles of “life, liberty and security” enshrined in the Canadian Charter of Rights and Freedoms.

“Cannabis isn’t covered under the [Ontario Disability Support Program] and there’s no insurance plan in Canada in any company that’s going to pay for medical marijuana,” said Szymczak.

“So how can somebody who’s making $20,000 a year on minimum wage trying to support a low-income family be able to buy their cannabis when they don’t want to take opiates?”

New rules

In June, the federal government unveiled its plan to overhaul the country’s medical marijuana system. Starting in April 2014, the only legal means for patients to obtain cannabis will be through licensed commercial growers.

Under the old system, users with Health Canada licences could grow their own marijuana, designate someone else to grow it for free, or buy it from Health Canada’s Saskatchewan-based sole-source supplier.

But the government has said the outgoing system is too difficult to regulate, and has stated that a troubling number of the more that 4,200 people who were licensed to grow medical marijuana were involved in criminal activity.

However, Szymczak says the new regime, dubbed the Marihuana for Medical Purposes Regulations (MMPR), will enrich, rather than suffocate, the underground market for weed.

In his court submission, he says the new system will force him and other medical cannabis patients to purchase pot illegally. 

“The inability to afford to purchase dried marihuana under the MMPR from licensed commercial producers when available forces the applicant to choose between their personal health and mortality or risk arrest and incarceration by continuing to produce their own marihuana illegally,” read Szymczak’s affidavit, which he wrote in consultation with B.C. criminologist and marijuana activist Brian Carlisle.

hi-med-marijuana-02228276

(Pawel Dwulit/Canadian Press)

Alan Young, a professor at Osgoode Hall Law School who has worked on numerous medical marijuana cases, said the success of Szymczak’s case depends on, among other factors, the shape that MMPR takes as it gets rolled out.

“If a challenge is heard today, the government would lose,” he told CBC Hamilton. Szymczak has not yet heard if the court will hear his challenge.

More than 170 individuals and corporations have applied to become licensed medical marijuana distributors. But very few, Young said, will like be ready to sell come April, raising questions about whether patients will have legal, affordable and convenient access to their medication.

However, he said any legal challenges that are heard would, at most, result in tweaks to the program — which he deems to be “conceptually better” than the one it’s replacing — and not a wholesale dismissal.

“From the outset, everything on medical marijuana in Canada has been driven by court challenges,” he said. “So the challenges will continue because the government has struggled to develop what it feels would be the most effective program.”

‘I was treated worse than a dog’

Szymczak’s challenge stems in part from his April 2012 stint at the Hamilton-Wentworth Detention Centre, after police raided the East Mountain site where he grew cannabis.

At the time, Szymczak had a Health Canada licence to possess and grow marijuana for his personal use, but had moved his production site because he had sensed suspicious activity around his home when he first set up the operation.

hi-barton-sign

Mike Szymczak spent four days in the Hamilton-Wentworth Detention Centre in April 2012.

He’s currently fighting the charges, which he believes resulted from a “clerical error,” and hopes the legal challenge will lead to his exoneration.

However, he is more upset about how he was treated inside the Barton Street jail, where he spent three nights without his prescribed 20 grams per day of medical marijuana.

“It was disgusting,” said Szymczak, who is afflicted with degenerative disc disease in his back. “I treat my dog better than I was treated in jail, and I’m a medical patient. I have medical documentation to prove everything, and I was treated worse than a dog.”

In his affidavit, he said the conditions he experienced violated the Charter provision that forbids “cruel and unusual treatment or punishment.”

Citing privacy rules, the provincial Ministry of Community Safety and Correctional Services, which operates the facility, said it could not comment on Szymczak’s case directly.

'If an inmate does have a need for any medication, the doctor can prescribe medications appropriate to a correctional setting, including an oral cannabis substitute.' —Andrew Morrison, Ministry of Community Safety and Correctional Services

But spokesperson Andrew Morrison said the ministry “has several policies and procedures that prevent the entry of controlled substances, including loose cannabis, into the facility.”

The same policies ban smoking on the premises, but Morrison noted there may be circumstances under which inmates would be allowed to consume medical marijuana.

“If an inmate does have a need for any medication, the doctor can prescribe medications appropriate to a correctional setting, including an oral cannabis substitute in the case of medical marijuana usage."