Court to decide who can grow medical marijuana

Pot home growers in court fight against Ottawa'a Big Bud model that would ban their legal medicine gardens

Cori Petersen was among a handful of pro-pot demonstrators who carried signs outside the Federal Court building in Vancouver on Thursday in support of a court challenge on behalf of medical marijuana users.

Final arguments wrapped up Friday in a court challenge of the federal government’s move to ban home growing of medical marijuana by doctor-approved users.

A win by pro-pot advocates would blow a big hole in the new federal system imposed last spring that outlawed previously legal home grows and tried to force all patients to buy only from new commercial producers. Those companies will have the exclusive right to grow and sell if Ottawa prevails.

Abbotsford lawyer John Conroy told Judge Michael Phelan the new system means much higher medical marijuana costs for thousands of users who until now have been able to grow their own and who have a court-enshrined right in Canada to reasonable access to their medicine.

“Reasonable access is required for all medical marijuana patients, not just those who can afford it,” Conroy said Thursday. “The government knew what they were doing was not going to be viable for every approved patient, but only for some.”

The plaintiffs, who use home-grown marijuana to treat various illnesses, include Nanaimo resident Neil Allard and Mission resident Shawn Davey. Surrey resident David Hebert had also legally grown pot on a federal permit for his severely ill wife, but now buys on the black market after they moved to a new home where a grow was no longer possible.

A temporary injunction allowed home and delegated growing to continue until the challenge of the new Marijuana for Medical Purposes Regulations (MMPR) could be heard in Federal Court.

There were 38,000 patients approved to use medical marijuana in Canada last year – half of them in B.C. – and Health Canada has estimated that number will top 400,000 within 10 years.

Conroy and Vancouver lawyer Kirk Tousaw argue the new MMPR system violates the constitutional right to life, liberty and security of the person because it either deprives some patients of the medicine they need but can’t afford at higher commercial prices, or else forces them to break the law and risk jail and property seizure to grow it themselves or buy it on the black market.

Those who continue to grow significant numbers of plants illegally could face mandatory jail terms of at least six months, court was told, and potential loss of homes or property under provincial civil forfeiture provisions.

Tousaw said medically approved patients should have the right to grow their own pot, or have a caregiver do it for them “without the fear that they’re going to be arrested and convicted of criminal offences or have their property seized.”

Health Canada lawyers argued it’s illogical to let home growing continue under a hybrid two-tier system.

They say the named plaintiffs could afford to buy pot in the legal commercial system, where most strains sell for $5 to $8 a gram, but merely prefer not to.

“There is no constitutional right to cultivate marijuana,” the federal written argument states, adding the MMPR regulations are “a considered and valid policy choice that achieves legitimate health and public safety objectives, and does not impede patient’s reasonable access to medical marijuana.”

Evidence brought by Ottawa centred around the risk of public harm, fires, mould, odour, crime and other problems from residential growing.

Surrey Fire Chief Len Garis told the court those problems were widespread, but Tousaw dismissed his evidence as mainly focused on illegal grows, not legal ones.

An RCMP expert testified many legal medical pot gardens grow more plants than are allowed or necessary, with the surplus being sold in the black market.

Health Canada estimated it would cost $55 million a year if it attempted to inspect all legal medical grows annually, and argued that cost would soar with the continued “exponential” growth of authorized users.

Other aspects of federal policy were also under fire during the trial, including a 150-gram possession limit for medical pot.

Federal officials argue it’s a safety measure so users aren’t targeted for theft but they conceded there is no such limit for patients prescribed other drugs such as Oxycodone.

The limit is intended to allow a 30-day supply based on five grams used a day, but the court heard typical medical pot users consume 18 grams daily and can’t take an adequate supply on a long vacation as a result.

The Supreme Court of Canada is deliberating on a separate court challenge in which Tousaw and Conroy have argued the federal rule that new commercial producers sell only dried pot – not extracts, edibles and oils – is unconstitutional.

Tousaw rejected suggestions the budding new commercial pot industry is doomed to fail unless the grow-your-own option is uprooted.

The commercial target market, he said in an interview, is people who can’t or won’t grow their own.

“People like my grandmother, who could have used medical cannabis but was never going to grow it for herself. But if she could get it in a reasonable way, she’d buy it.”

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Denciti Development Corporation is ready to start building a 108-unit residential building at 6117 Uplands Dr. (Integra Architecture Inc./Denciti Development Corp. image)
Developer ready to get started on apartments on Uplands in north Nanaimo

More than 100 units planned for 6117 Uplands Dr. building

Deborah Saucier, Vancouver Island University president and vice-chancellor, was among the panelists in the Future of Post-Secondary Education discussion at the State of the Island Economic Summit on Oct. 28. (VIEA YouTube screenshot)
Island’s universities challenged to ‘build community’ amid remote learning

VIU, UVic and Royal Roads University admin discuss COVID-19 impact at economic summit

John Albert Buchanan, accused in the September 2017 murder of Richard Sitar in Nanaimo, is currently standing trial in B.C. Supreme Court in Nanaimo. (News Bulletin file)
Man accused in Nanaimo beating death told police he didn’t hurt victim

Arresting officer takes the stand in John Albert Buchanan’s second-degree murder trial

Over the years, Janice Blackie-Goodine’s home in Summerland has featured elaborate Halloween displays and decorations each October. (File photo)
QUIZ: How much do you really know about Halloween?

Oct. 31 is a night of frights. How much do you know about Halloween customs and traditions?

FILE - In this Jan. 23, 1987 file photo, actor Sean Connery holds a rose in his hand as he talks about his new movie “The Name of the Rose” at a news conference in London. Scottish actor Sean Connery, considered by many to have been the best James Bond, has died aged 90, according to an announcement from his family. (AP Photo/Gerald Penny, File)
Actor Sean Connery, the ‘original’ James Bond, dies at 90

Oscar-winner was knighted by Queen Elizabeth II in 2000

This house at 414 Royal Ave. became notorious for its residents’ and visitors’ penchant for attracting police. It was also the site of a gruesome torture in August 2018. It was demolished in 2019. KTW
6-year sentence for Kamloops man who helped carve ‘rat’ into flesh of fellow gang member

Ricky Dennis was one of three men involved in the August 2018 attack

Cpl. Nathan Berze, media officer for the Mission RCMP, giving an update on the investigation at 11:30 a.m., Oct. 30. Patrick Penner photo.
VIDEO: Prisoner convicted of first-degree murder still at large from Mission Institution

When 10 p.m. count was conducted, staff discovered Roderick Muchikekwanape had disappeared

Among the pumpkin carvings created this year by Rick Chong of Abbotsford is this tribute to fallen officer Cont. Allan Young.
Abbotsford pumpkin carver’s creations include fallen police officer

Rick Chong carves and displays 30 pumpkins every year

An online fundraising campaign in support of the six-year-old boy, Edgar Colby, who was hit by a car on Range Road Oct. 25 has raised more than $62,000 in a day. (Submitted)
$62K raised in 1 day for boy in coma at BC Children’s after being hit by vehicle in Yukon

The boy’s aunt says the family is “very grateful” for the support they’ve received from the community

Police service dog Herc helped RCMP locate and arrest suspects in the Ladysmith area on Oct. 23, 2020, related to a stolen vehicle. (Submitted)
RCMP nab prolific property offender in Ladysmith with assist from police dog Herc

Police attempted to stop the vehicle but it fled from the area towards Chemainus.

Health care employees take extensive precautions when working with people infected or suspected of having COVID-19. THE CANADIAN PRESS/Chris Young
WorkSafeBC disallows majority of COVID-19 job injury claims

Health care, social services employees filing the most claims

Conservative leader Erin O’Toole rises during Question Period in the House of Commons in Ottawa on Wednesday October 28, 2020. (Adrian Wyld/The Canadian Press)
Conversion therapy ban gets approval in principle, exposes Conservative divisions

Erin O’Toole himself voted in favour of the bill, as did most Conservative MPs

Most Read