Canada: Ban On Medical Patients Growing Their Own Marijuana Struck Down
By Steve Elliott
A Canadian Federal Court judge on Wednesday struck down regulations restricting the rights of medical marijuana patients to grown their own cannabis. The judge gave the Liberal government six months to come up with new rules.
Judge Michael Phelan ruled in Vancouver that the Marijuana for Medical Purposes Regulations were an infringement on charter rights and declared they have "no force and effect," reports CBC News.
The judge suspended his declaration for six months, to give the federal government time to come up with new rules for medical marijuana.
Judge Phelan also ordered that an earlier injunction, allowing thousands of Canadians with prior medical marijuana authorizations to continue to grow it at home, remains in effect. But Wednesday's ruling did not extend that to cover new patients.
The judge was careful to point out that his ruling doesn't change the laws that make it illegal for Canadians to use cannabis recreationally.
Lawyer Kirk Tousaw, co-counsel for patient Neil Allard, who was behind the court challenge, was very pleased with the decision. "Basically we won, and it was a complete victory," Tousaw said.
"[The Marijuana for Medical Purposes Regulations] were declared to be unconstitutional and violate the charter rights of medical cannabis patients," Tousaw said, adding it will now be up to the new Liberal government to come up with new rules.
"The ball is in the federal government's court," Tousaw said. "Mr. Trudeau and the justice minister have six months to respond to the court's ruling and come up with a system of medical cannabis regulation in this country that doesn't impact and negatively take away the charter rights of medical cannabis patients and their providers."
"We proved that growing medical cannabis can be perfectly safe, and can be done completely in compliance with the law and people ought to have a right to do that without fear of being arrested and locked in cages for that activity," Tousaw said.
"The lessons I think are pretty obvious," he said. "If you can grow cannabis for yourself for medical purposes safely and with no risk for the public, surely, you can grow cannabis for yourself for non-medical purposes safely and with no risk to the public."
The federal Liberal government under Prime Minister Trudeau has committed to regulating and legalizing recreational marijuana, but has yet to introduce any legislation. Trudeau has complained the international drug treaties tie his hands in coming through on his campaign promise to do exactly that.
In his decision, Judge Phelan wrote that "many 'expert' witnesses were so imbued with a belief for or against marijuana — almost a religious fervour — that the court had to approach such evidence with a significant degree of caution and skepticism."
He called one RCMP witness in particular for the Crown, Cpl. Shane Homequist, "the most egregious example of the so-called expert.
"He possessed none of the qualifications of usual expert witnesses," Phelan wrote. "His assumptions and analysis were shown to be flawed. His methodologies were not shown to be accepted by those working in his field. The factual basis of his various options was uncovered as inaccurate."
"I can give this evidence little or no weight," the judge concluded.
Phelan also dismissed many of the federal government's arguments about the risks home grow-ops could supposedly bring to homes, noting mould, fire, break-ins and insurance concerns can easily be addressed within existing laws and regulations.
He found the rules which "limited a patient to a single government-approved contractor and eliminated the ability to grow one's own marijuana or choose one's own supplier" were an untenable restriction on the plantiffs' liberties.
The constitutional challenge to the MMPR -- regulations which were introduced by Prime Minister Stephen Harper's Conservative government in 2013 -- required patients to buy marijuana from licensed producers, instead of growing their own. The challenge was launched by Nanaimo, B.C., resident Allard and three other residents arguing that their charter rights were being violated.
The lead counsel for the plaintiffs, John Conroy, told the court that the legislation had robbed patients of affordable access to medicine. Some patients were left with no choice but to break the law, Conroy said, either by continuing to grow their own marijuana, or by purchasing it on the black market.