Ted Smith

A huge wave of relief swept across the country this morning as a federal court judge handed down a ruling protecting patient gardens.  In 2014, a new medical cannabis program, the Marijuana for Medical Purposes Regulations, was enacted by Health Canada, replacing the Medical Marijuana Access Regulations which had allowed patients to grow their own medicine since 2001.  Federal Court of Canada Justice Phelan’s ruling gives the federal government 6 months to create regulations that will once again give patients with their doctor’s approval the ability to grow cannabis.


While it is unclear if the federal government is going to appeal this decision, for now veteran lawyer John Conroy and his legal team can rest assured their hard work has been rewarded.  It is clear reading the decision that the defence team of patients and experts did a much better job presenting their evidence than the crown.  Considering the fact that this is one of the most important decisions in the history of Canadian drug law, this should be considered Mr Conroy’s crowning achievement in a long career of successful litigation.  

For many, this is essentially a life or death decision, something the judge clearly understood.
“[276] Further, those who are unable to afford LP prices will continue to be placed in a position where they have to choose between their liberty and their health. Patient health will be negatively impacted if they are unable to access sufficient amounts of the medicine.

The judge did not accept Health Canada’s argument that the new program is better for patients, nor does he agree that the risks of allowing patients to grow their own medicine are so great that it should be prohibited.  


“[253] Overall, viewed from the different perspectives, the law is arbitrary as the limits it imposes on section 7 interests bear no rational connection to its objective. Considering the Plaintiffs’ situations, the MMPR does not reduce risk to their health and safety, nor does it improve their access to cannabis.”

[260] “The evidence establishes that the great majority of patients were able to produce their own cannabis as medicine without any threat to their own health and safety or that of the public. It follows that the limitation on their rights is not connected to the objective of protecting public safety and health.”

In fact the judge rips apart the crown’s so-called experts, “[101] Many “expert” witnesses were so imbued with a belief for or against marihuana – almost a religious fervour – that the Court had to approach such evidence with a significant degree of caution and scepticism.

[108] Bearing in mind these principles, the evidence of some of the “experts” on both sides will be given little or no weight. Some had their evidence shredded in cross-examination; this was particularly true of some of the Defendant’s non-technical “experts”.

Following the unanimous decision by the Supreme Court of Canada last year in the Smith decision regarding cannabis extracts, Justice Phelan recognizes the federal government has not followed generally accepted regulatory procedures to control cannabis, instead creating unique regulations that have struggled to be consistent with the Charter of Rights and Freedoms.

“[251] Additionally, despite the stated objective of treating medical marihuana as a medicine, the MMPR does not treat marihuana for medical purposes in the same way as other psychoactive drugs. It is not regulated through the FDA drug approval process and is not subject to the controls on safety and efficacy.

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Shawn Davey speaking at Press Conference

While this decision is a great victory for patients, caregivers and dispensaries, the Licensed Producers that have been working with Health Canada and the restrictive MMPR are going to suffer.  Since the beginning of the new program, these companies have built their future upon having a tight grip on the supply of cannabis as medicine.  Health Canada has done everything possible to get out of the medical cannabis business and download their responsibilities to these companies, promising them huge financial rewards for compliance.  

In his decision, Justice Phelan makes it clear that Health Canada’s complaints that the MMAR costs too much money to inspect and regulate patient gardens hold little weight in court.

“[252] Taking the evidence in comparison to the objective of the MMPR outlined in the RIAS, the only consequence of the MMPR remaining largely unchallenged is that of government cost savings. The regulatory cost burden has significantly been transferred to the LPs. Cost savings, while a legitimate policy goal, cannot, in this case, trump the Plaintiffs’ Charter rights and form a Charter-compliant justification for the MMPR.

Aside from patients, compassion clubs are also sharing in this victory today.  President of the Canadian Association of Medical Cannabis Dispensaries, Jamie Shaw, testified at the trial and it seems her words were taken very seriously by Justice Phalen.  Since most dispensaries are supplied by patients or their caregivers previously licensed under the MMAR, this ruling will ensure a safe and constant supply.

“[162] Although dispensaries were not a focus of the parties’ submissions, I find Ms. Shaw’s evidence to be extremely important as dispensaries are at the heart of cannabis access.

[163] Although not legal under any past or previous medical marihuana regulations, current trends in dispensary growth suggest a connection between the restrictions to access under the MMPR and the need for patients to obtain their medical marihuana from illicit sources.

For those patients unable to legally grow in the last few years due to moving or other complications, the six month wait until there is a new program in place will seem like a very, very long time.  Patients recently diagnosed are also eager to grow their own medicine as soon as possible.  Hopefully the federal government does not appeal the decision or these patients will be forced to wait for years before a final conclusion on this matter is reached.

Now the ball is in the court of the federal government, which will either appeal or embrace this decision.  Hopefully this decision will be fully accepted by the Liberals and a new program much more beneficial to patients will be introduced in six months or less.  For now we will celebrate and maybe plant a few seeds for the garden this summer.