Canadian Federal Court: Patients Have Right to Grow Cannabis at Home

Canadian medical marijuana patients may now have the right to grow marijuana in their home thanks to today’s ruling by a Federal Court judge.

The decision, which follows a 2014 injunction, flies in the face of Ottawa’s decision to ban home grows in favor of their government regulated mail-order system.

Judge Michael Phelan declared that the Marijuana for Medical Purposes Regulations were an infringement on the Canadian Charter of Rights and Freedoms. Judge Phelan suspended his declaration for six months in order to give the federal government time to make some new rules regarding medical marijuana. Neil Allard, along with three other B.C. medical marijuana patients, challenged the former Conservative government’s decision to reform the medical marijuana system back in June of 2013. The decision prohibited patients from growing marijuana at home, instead they were forced to purchase their cannabis from one of the few commercially licensed facilities.

The four plaintiffs alleged that these new rules violated their charter rights. Arguing that the commercially produced medical marijuana wasn’t affordable and it didn’t always give them the opportunity to purchase their desired strains. Patients were forced to comply with the new system and purchase from these Health Canada regulated facilities, or they would have to break the law and continue to grow at home or turn to the black market.

Government lawyers argued that by allowing patients to grow their own marijuana at home it poses a serious security, fire and health risk for them and their community. They also stated that it is too difficult to ensure the marijuana being grown by patients is medically effective.

“I agree that the plaintiffs have, on balance of probabilities, demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with the promotion of public health,” wrote Judge Michael Phelan in his ruling on Wednesday. “I again emphasize that the object of the restriction is not to eliminate the risk to health and safety but to reduce it.”

Kirk Tousaw, co-counsel for Neil Allard who initiated this court challenge, was very pleased with Judge Phelan’s decision.

“Basically we won, and it was a complete victory,” said Tousaw. “[The Marijuana for Medical Purposes Regulations] were declared to be unconstitutional and violate the charter rights of medical cannabis patients. The ball is in the federal government’s court. 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.”

The judge was careful to point out that this ruling doesn’t change the laws surrounding recreational marijuana in Canada, but Tousaw believes this ruling will affect those who want to grow cannabis for recreational use as well.

“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,” he said while making the point that by proving medical marijuana home grows are safe, non-medical grows could be just as safe. “The lessons I think are pretty obvious. 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.”

In his decision, Judge Phelan also made note 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.”

The judge called out one Crown witness in particular, RCMP officer 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 newly elected Liberal government ran on the promise of legalization, but little has been done to further this initiative so far. Marijuana proponents hope that this ruling will help spark change for both the medical marijuana patients and recreational marijuana users in Canada.

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