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Court to decide who can grow medical marijuana

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. - Jeff Nagel / Black Press
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.
— image credit: Jeff Nagel / Black Press

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."

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