Canadians with a medical marijuana licence have the constitutional right to grow their own pot, regardless of the former Conservative government’s plan to put it in the hands of a few large commercial producers, according to a Federal Court judge.
The ruling, handed down Wednesday, clears the way for thousands of pot licensees to maintain their backyard or basement grow-ops.
The lawyer representing four British Columbians who challenged the federal policy says it’s a victory for the poor and disabled who can’t afford the higher prices charged by government-sanctioned producers.
“Most of the people who want to grow for themselves or have a caregiver do so are people on disability pensions who can’t afford the prices from the LPs [licensed producers] or the dispensaries and they’ve determined they can produce at very low cost,” John Conroy told Yahoo Canada after Justice Michael Phelan’s ruling was handed down.
The Tories’ Marihuana for Medical Purposes Regulations (MMPR), which took effect in June 2013 would have effectively denied medical marijuana to those who could only afford it by growing their own, Conroy argued during a Federal Court trial that spanned several weeks last year. To continue would have left them vulnerable to criminal prosecution and potentially jail.
The four plaintiffs, Neil Allard, Tanya Beemish, David Hebert and Shawn Davey, also contended the limited choice of strains of marijuana available through commercial channels were not always as effective in treating their symptoms.
It’s estimated close to 30,000 licensed home growers are affected by the ruling. Despite implementation of the MMPR, they’ve been allowed to continue growing their own under a court injunction while the case was decided.
In his ruling, Phelan gave Ottawa six months to come up with a new policy that includes the option of licensed home grow-ops.
However, Conroy said he will asking that thousands more medical pot users who do not have a valid grow licence be covered by the injunction while the government revises the MMPR or replaces it.
“There are other medically-approved patients who fell through the cracks that we’ll need to address, either through the government directly or back in court for a modification of the injunction pending the new legislation,” he said.
[A marijuana home grower works on a marijuana flower in Montevideo in this March 7, 2014. REUTERS/Andres Stapff]
Ottawa has 30 days to appeal the court ruling
The government has 30 days to file an appeal of the ruling but Conroy wondered whether they will challenge it, given the new Liberal government’s intention to legalize and regulate recreational marijuana.
“They’ll seek instruction from the new [health] minister,” Conroy told Yahoo Canada. “It’s a new minister [Jane Philpott] in a government that said it will legalize, so I think that will cause some further consideration that the previous government may not have given.”
Philpott issued a statement to Yahoo Canada following the ruling:
“I have just had an opportunity to review the ruling of the court,” Philpott wrote. “I will be working with my staff in Health Canada as well as with our colleagues in the Department of Justice to determine an appropriate response to the court’s ruling, making sure going forward that Canadians who need access to medical marijuana are able to obtain it and that there is an appropriate regulatory regime in place.”
The case offered two starkly contrasting views of home-grown medical pot. Advocates saw it as a cheap, benign way for users to produce their own medication with reasonable precautions.
The government described a landscape of unregulated grow-ops spewing noxious fumes into the neighbourhood and filling homes with potentially toxic mould. They’d also be vulnerable to grow-rip home invasions, not to mention the temptation to sell surplus weed for a profit, Ottawa’s lawyers argued.
There’s no doubt some people abuse their licences, Conroy said.
“Reasonable restrictions should be there but we don’t need to have a regime where you have constant inspections on peoples’ premises,” he said, noting the government doesn’t check homes where people grow their own backyard tobacco or make beer or wine.
“At the same time, people need to make sure that they don’t cause a nuisance in their neighbourhood. People can do this without stinking up their neighbourhoods and they should realize they want the support of their neighbourhoods. They don’t want to alienate their neighbours.”
Phelan rejected the government’s argument and ruled the MMPR violated Section 7 of the Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. He was not convinced the health and safety concerns or risk of pot being diverted to the black market were big enough to trigger Section 1 of the Charter, which allows for rights to be subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
“As this regime was created by regulation, the legislative process is simpler than the requirement for Parliament to pass a new law,” Phelan wrote. “The declaration will be suspended for six months to allow the government to respond to the declaration of invalidity.”
Ruling should have little impact on large medical pot producers, lawyer says
Conroy played down the impact of the ruling on Health Canada’s move to regulated commercial production and sale of medical marijuana.
“This is a pretty small number of people, relative to the big picture who will be getting it from licensed producers and hopefully from a regulated market involving dispensaries and compassion clubs,” he said.
“I’m sure LPs may not be happy with the judgment because some of them think this will impact their market. But I disagree. These people are not part of their target market.”
The decision is the latest chapter in Ottawa’s meandering path to regularize medical pot sales and use triggered by a series of court rulings beginning in the late 1990s.
Before Stephen Harper’s government reformed the regulations, those authorized to use medical marijuana were licensed to grow a limited number of plants for their own use or they could designate someone to grow them under the 2001 Marihuana Medical Access Regulations (MMAR).
The Conservatives developed the MMPR regime over concerns individual home grow-ops represented health and safety risks, including fire, growth of mould and noxious odours in residential neighbourhoods, as well as growers abusing their licences to produce black-market pot.
Conroy’s clients didn’t get everything they wanted. Phelan upheld the regulation that restricts licensees from possessing no more than 150 grams of dried product.