A 2019 customs raid and seizure of medical cannabis products from Doctors Express healthcare facility was unlawful, the Grand Court has ruled.
Chief Medical Officer Dr. John Lee also acted improperly and outside of his powers when he issued a “cease notice” banning vapourisable cannabis, according to a judgment handed down Friday, 5 Feb.
Doctors Express was legally licensed to import cannabis for medical use and there was no reason for suspecting it had broken any law when customs officers, accompanied by police, raided the premises in September 2019, Justice Robin McMillan stated.
“It is impossible to conclude that there were or are any grounds for the applicant having committed any offense at all,” he states in the judgment.
The judge quashed both the cease notice – which he said had no basis in law – and the search warrant obtained by Customs and Border Control, which he ruled was filled with serious and overwhelming errors that are “likely without precedent in the Cayman Islands”.
He called into question the credibility of evidence given during the court proceedings by senior public officials, including Lee.
Specifically, the judge questioned the Chief Medical Officer’s sworn testimony that he had acted out of concern for public health when he issued the notice banning medical cannabis vapes.
This evidence was contradicted by an email, dramatically disclosed on the final day of the trial, in which Lee suggested to senior public health officials that he did not believe the vapes being advertised by Doctors Express posed a specific risk to public health.
The email went on to state that a blanket text message advertisement of medical vapes by the facility has “given us a chance to rein in the widespread use of cannabinoids”.
Justice McMillan described those comments as “remarkable” and reflective of the Chief Medical Officer’s true opinion.
“The CMO knew that in relation to the applicants there was no health risk to justify issuing the cease notice.
“Therefore, other than to target the applicants there was no reason to issue the cease notice,” the judge stated.
Lee maintained during the court proceedings that he had acted out of legitimate concern for public health.
Whatever the motivation, McMillan ruled that, in any event, Lee did not have the statutory power to issue a cease notice under the Misuse of Drugs Act.
A later claim that he had used a different statute was also dismissed by the judge, who indicated that Lee’s evidence on this point was “unreliable and unpersuasive”.
He ruled that the Chief Medical Officer’s decision to ban medical cannabis vapes was “irrational and unfair” and intended to accommodate Customs’ concerns around the text message advertisement issued by Doctors Express.
The ad, which was issued to Digicel subscribers and encouraged them to “hurry while stocks last” appears to have been the catalyst for the inquiry in September 2019.
The judgment indicates the customs investigation as characterised by “chaos and confusion”.
Justice McMillan outlines a catalogue of concerns about the search warrant and subsequent raid, describing the process as a “mess from beginning to end”.
He wrote, “The court finds that the entire enterprise was baseless and that it was conducted for an improper purpose – to detain items by any means under which they could be detained.”
He indicated that the evidence showed customs officers had presented misleading information to the Justice of the Peace in order to obtain the search warrant, which was, in any event, riddled with technical errors.
The judgment states that customs officers were not clear over exactly what offence was being alleged against the clinic, which had a legal licence to import and sell medical cannabis. He said there was no basis for suspicion of illegal possession of a controlled substance or possession with intent to supply.
McMillan stated, “The court would add that at no point have [Customs, RCIPS and Lee] addressed or indeed come to terms with the breadth of the case made against them, in particular that the cease notice and warrant were both procured and executed for improper purposes and that the allegations of suspicion of criminal conduct directed at the applicants were at all times baseless and unjust.”
A separate hearing will be held to determine what damages, if any, should be paid, to Doctors Express.
The facility’s director Samuel Banks testified during the court proceedings that the raid, which occurred in front of patients, had been highly embarrassing and damaging to his business.
Banks, in a press statement Monday, said that prescription medications seized in the raid were intended to treat patients suffering from life-altering illnesses and debilitating pain.
He highlighted references in the judgment to misleading statements given by public officials and said he had instructed his lawyers to forward the judgment to the Office of the Director of Public Prosecutions. Banks said Doctors Express would be making formal complaints of criminal offences, including perjury and conspiracy to pervert the course of justice.
In response to the judgment, Lee released a statement Tuesday reiterating his actions were taken in the “best interests of the [p]ublic” after seeking “legal advice and [consulting] with both the Health Practice Commission and the Registrar of the Department of Health Regulatory Services amongst others”.
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