The Kaya Clinic in downtown Kelowna was raided by police Jan. 15, 2015.

(ADAM PROSKIW / iNFOnews.ca)

VERNON - The municipality told him to shut down, police raided his shop and charged him with drug trafficking, and now an Okanagan dispensary owner is challenging the constitutionality of what transpired.

Ryan Pahl, co-owner of the Kaya Clinic in Kelowna, was charged with one count of possession for the purpose of trafficking after Mounties raided the dispensary in January, 2015.

Today in Vernon Provincial Court, Pahl’s lawyer Kirk Tousaw said the court case won’t revolve around proof his client was selling marijuana, but around the constitutionality of the activity itself.

“The prevailing system in place at the time of the arrest was… determined to be unconstitutional,” Tousaw said, citing a February 2016 court decision on access to medical marijuana, known as the Allard case.

The Kaya Clinic’s trouble started when the City of Kelowna inspected the Lawrence Avenue store and discovered it was in fact a marijuana dispensary, not a retail store as the operators stated when getting a business license. Pahl was advised to shut down, and when he didn’t, the city notified police.

A search warrant was executed by police Jan. 15, 2015, and officers seized edibles, oils, tinctures and over five kilograms of marijuana bud, Crown counsel Baljinder Girn said today.

She argued the situation is completely different from the  case, in which patients were fighting for the right to grow medical marijuana at home.

“(Even) if he’s selling marijuana to persons authorized to possess marijuana for medical reasons, Mr. Pahl and his company were not authorized to do that,” Girn said.

Although the federal government has announced it is moving towards the legalization of marijuana, the Controlled Drugs and Substances Act currently makes it illegal to possess or sell pot.

Tousaw has asked that two weeks be set aside to argue the constitutionality of the case in advance of a trial being held, but first, Judge Richard Hewson has ordered something called a Vukelich hearing, which will be used to determine whether or not the accused has the right to a constitutional challenge in the first place.

Lawyers will return to set a date for the Vukelich hearing on Sept. 27.

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