Later this month the federal government must enact laws allowing patients to grow their own supply of cannabis, as per the Federal Court of Canada decision handed down in the Allard injunction on Feb 24. Many patients have been left without the ability to grow their own medicine for years waiting for the final outcome of this matter, while others have been clinging to their plants for dear life hoping for some rational decisions. Health Canada has given little indication as to what their plans are, making everyone very nervous.
One of the lawyers who provided a lot of assistance to lead counsel John Conroy, is Vancouver Island resident and lawyer extraordinaire Kirk Tousaw. He represented former head baker of the Victoria Cannabis Buyers Club, Owen Smith, to the Supreme Court of Canada, where he won a unanimous decision. But you likely know all that.
After reading a number of questions and comments about this impending announcement from Health Canada, Kirk has provided us with several points that help clarify the situation.
- Justice Phelan ordered – in the trial decision – that the injunction continue “until further Order of the Court”. Accordingly it is incorrect to say that he is no longer seized and has no further rule to play. I believe that the government will need to go back to Phelan to have the injunction lifted and, to do so, I suspect it will need to satisfy him that their response to Allard adequately meets the Charter issues decided in Allard. Of course the government could bring in a new system for new people and simply leave the injunction in place permanently; we would need to see what the new system is before opening on whether it meets the Charter.
- The government has until August 24 to respond. Failing to do anything means the entire MMPR are gone. That would instantly make all LPs criminals, remove all protection from MMPR patients and leave only persons protected by the injunction as lawful producers/possessors of medical cannabis. Further, it does open a JP type argument for non-medical people because of the decision in JP and the words of the SCC in Smith which seemed to confirm that the overall prohibition is dependent on a medical exemption regime. Also, because the MMPR repealed the MMAR it is arguable that if the MMPR completely disappears the MMAR will return by operation of law. Arguable but not certain.
- I doubt very strongly the government will do nothing. I suspect it will implement new regulations by August 24. I don’t see it seeking an extension of time. Doing so opens it up to significant possible judicial oversight (the government sought an extension one year after Beren and the Judge would have given it to them but required them to report on the progress toward a new system and the government declined to do so citing cabinet privilege).
- The Allard decision is not about a “right to grow” but it seems pretty clear from the decision that an outright prohibition on medical production will not meet the dictates of the Charter because it causes harm when the goal of the CDSA is to protect health and safety of the public. I would argue this is true even if the government implements a cost coverage situation for low income patients.
- The government could certainly choose to reinstate the MMPR with some tweaks to try to meet the Allard ruling. In my view the easiest thing it could do is bring back the MMPR for commercial production/sale and bring back the MMAR for personal/caregiver production. I suspect this is too easy an option and instead the government will complicate things, though it may be that doing what I suggest is a decent short-term solution while it figures out general legalization.
- Under any scenario – we are ready and able to keep the legal pressure on the government until we have a workable medical cannabis system in this country.