SOWING CONFUSION
COURT STRIKES DOWN MEDICINAL MARIJUANA LAW
VANCOUVER• The Federal Court has struck down legislation barring patients from growing their own medical marijuana.
In a stinging indictment, Justice Michael Phelan said the former Conservative government’s law was arbitrary, overbroad and unconstitutional.
“The access restrictions did not prove to reduce risk to health and safety or to improve access to marijuana — the purported objectives of the regulation,” wrote Phelan in a ruling released Wednesday.
“In sum, the law goes too far and interferes with some conduct that bears no connection to its objectives.”
He gave the federal government six months to fix the legislation, suggesting a much more relaxed approach that allowed personal growing operations and dispensaries.
Phelan also extended an injunction allowing people who held licences to continue to grow their own marijuana.
The constitutional challenge was launched by four British Columbia residents who argued that the 2013 Marijuana for Medical Purposes Regulations blocked their access to affordable medicine.
“Their lives have been adversely impacted by the imposition of the relatively new regime to control the use of marijuana for medical purposes,” Phelan wrote. “I agree that the plaintiffs have ... demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with the promotion of public health.”
Kirk Tousaw, a Vancouver Island lawyer in the case, was overjoyed. “His historic decision represents a nearly complete victory for patients using medical cannabis in Canada,” he said.
“I call upon the prime minister to act much more swiftly and immediately end all criminal sanctions against medical cannabis patients and their providers. In addition, the justice minister should immediately dismiss all pending criminal cases involving medical cannabis producers and dispensaries.”
Health Minister Jane Philpott said it was too early to say if the government would appeal. She said she will be working with the Justice Department to ensure there’s an appropriate regulatory regime in place.
The Liberal government has committed to legalizing recreational marijuana, but has said little about any plans for medical marijuana since being elected last October.
Philpott said recreational and medical cannabis should be treated as “two separate issues.”
“We’re going to have to completely review the regulations around access to medical marijuana,” she told reporters in Ottawa.
Under the Conservative government’s 2013 rules only authorized licensed corporations were allowed to grow and sell medical cannabis.
The personal and designated- grower licences permitted under the old rules were eliminated in favour of a corporate, courier-and-mailorder delivery system.
But many growers and patients across the country challenged the constitutionality of those regulations, saying they violated liberty and security rights.
There are an estimated 38,000 or so licensed medical pot users across the country, about 17,000 who reputedly buy from the new firms.
Medicinal marijuana production has grown into a multi-million dollar industry, and the court ruling caused stock prices to dip. Canopy Growth Corp. share prices on the on the TSX Venture Exchange had dropped about 7 per cent as of Wednesday afternoon.
Mark Zekulin, president of Tweed Marijuana Inc., said it would be “heartbreaking” if the federal government shut down the licensed-producer system entirely. But he doesn’t expect that will happen.
“We’ve built a world-class facility ... and are producing very high quality product that you can’t get anywhere else,” he said. “I don’t think six months from now it’s just going to get shuttered and people are going to be out of jobs.”
The Cannabis Patients Association of Canada, which represents people who held licences to grow marijuana under the old regime, applauded the decision.
“This is about putting the rights of the patient at the centre of public policy decision-making,” executive director John Lorenz said.
But Ronan Levy of Canadian Cannabis Clinics, a network of Ontario medical marijuana clinics, said allowing people to grow their own marijuana might make doctors more wary of prescribing it.
“Can you imagine what it would be like if you went to a doctor, they prescribe antibiotics, and you got to go home and mix up your own antibiotics? I don’t think doctors are going to be comfortable with that,” he said.
The judge concluded the medical benefits of the plant were largely undisputed.
“Many ‘expert’ witnesses ( on both sides) 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,” Phelan said.