Doctors Express lawyer: Cannabis-vape seizure was unlawful

A judicial review into the authorisation and execution of a warrant used by Customs and Border Control officers to raid Doctors Express for medical cannabinoids and vapes resumed in the Grand Court on Tuesday, 3 Nov.

The civil proceedings, which were brought by Doctors Express Limited, names the director of Customs and Border Control, the commissioner of police, and the chief medical officer as respondents. Justice of the Peace Catherine O’Neil, who signed off on the warrant, was also named as a respondent.

Doctors Express initiated the civil proceedings in June, following a raid last year of its premises, during which customs and police officers seized an undisclosed quantity of medical cannabinoids and vapes.

Laying out his grounds for the judicial review, attorney James Austin-Smith, who represents Doctors Express, argued that it was necessary to understand the background under which the warrant was obtained in order to understand why it was unlawful, and why the parties involved had been named.

“The case of Doctors Express is that customs officers deliberately and maliciously misled Ms. O’Neil into authorising the search warrant by withholding information, with the sole purpose of the procurement of the medical cannabinoids products which were properly obtained by my clients,” said Austin-Smith.

He said, before the warrant could be issued, the customs officers had to convince Chief Medical Officer Dr. John Lee to issue a cease-and-desist notice for the sale of medical vaporisable cannabinoids, which had been legalised by the Legislative Assembly in 2017.

“Two years later, on 10 September 2019, Doctors Express sent a text message to all Digicel users about the availability of the medicinal cannabis products at their facilities,” said Austin-Smith. “Then, two days later, four senior customs officials met with the health practitioners board to express concerns that the products should be restricted.”

He added, “The health practitioners board then met with Dr. Lee and told him that they thought it would be best if the notice came from his office, and provided him with a draft copy.”

The court heard that, prior to issuing the notice, Lee messaged Samuel Banks, the owner of Doctors Express, to inform him that he was under pressure to prevent the sale of the vaporised cannabinoids.

When referring to a sworn affidavit that was presented to the court, Austin-Smith said, “The CMO messaged Mr. Banks and told him, ‘Your [Digicel text] message has ruffled a lot of feathers and there are people who want me to do something about it.’”

Austin-Smith said this was proof of the customs officers’ desire to seize the cannabinoids products, ‘not for evidential purposes’ but rather to prevent them from being sold to the public.

He told the court that, after the cease-and-desist notice was sent out, the customs officers then went to O’Neil to request that she sign off on the warrant on the grounds that Doctors Express was unlawfully in possession of a controlled drug, with the intention to supply it.

“On the day of the raid, 15 officers, some of whom were armed, arrived at the Doctors Express facilities to execute the warrant,” said Austin-Smith. “It was half an hour into the raid that Doctors Express were served with the cease-and-desist notice.”

Austin-Smith noted that all of the other medical practices received the cease-and-desist notice ahead of Doctors Express.

“The irony of it all is that the notice was sent out to all the medical practitioners, except Doctors Express, the only practitioner who was supplying the medical vaporisable cannabinoids,” he said.

Addressing the CBC officers’ actions and the legality of the warrant, Crown counsel Nigel Gayle said the officers were correct to seek and execute the warrant.

“Prior to the application for the warrant and its execution, Doctors Express had sent out the text message informing people of the availability of the controlled drug, and the need to act fast while supplies last,” said Gayle. “At no point in time after the text message was sent, for everyone in the world to view, did Doctors Express retract, or negate its advertisement; so, with this knowledge, the officers had all rights to exercise their legally protected discretion, and seek a warrant to search and confiscate the products.”

Responding to Gayle’s submission, Austin-Smith said, “Imagine I had a properly regulated and licensed taxi service, and in February I took out an advert that said ‘Come take Jimbo’s Taxi to wherever you need to go on island,’ but in May the government passes a law that prevents anyone from travelling in public transportation. By [the Crown’s argument], then I would have to take out an advert to say ‘Don’t come and use our taxi because government has passed a new law banning public transport.’

“If I failed to send out this advert, then the authorities would be able to come and confiscate my taxi, and presumably the taxis of every other operator in Cayman, and this simply cannot be correct.”

He also pointed out that the seized drugs had been imported into Cayman after Doctors Express obtained the requisite permissions and medical licences, as well as approval from the Customs and Border Control office.

Due to a medical illness, O’Neil was not present in court on Tuesday. She is represented by Amelia Fosuhene, who told the court that because she had recently come on record as legal counsel, she needed more time to prepare O’Neil’s evidence.

The hearing continues.

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