Pubdate: Fri, 11 Mar 2016
Source: Lawyers Weekly, The (Canada)
Contact:  2016 LexisNexis Canada Inc.
Website: http://www.lawyersweekly.ca/
Details: http://www.mapinc.org/media/4556

WINNING LAWYER HOPES FOR PATH OUT OF DEEPEST WEEDS ON POT FILE

Judge Says Restrictions Against Small-Scale Growers Unjustified

The latest Charter ruling striking down the federal medical marijuana 
regulation regime as arbitrary and overbroad could help the Liberals 
implement their campaign pledge to legalize marijuana for 
recreational use, suggests the lawyer who has led a series of 
successful court challenges to Canada's cannabis laws.

Federal Court Justice Michael Phelan's Feb. 24 decision declaring 
invalid the Marihuana for Medical Purposes Regulations (MMPR), 
implemented in 2014 by the Conservative government, could be an 
educational tool for the successor Liberals because the court debunks 
persistent concerns - not borne out by evidence, the judge found - 
that the licit small-scale production of marijuana often leads to 
fires and mould, as well as thievery, violence and black markets, 
said John Conroy of Conroy & Company in Abbotsford, B.C., who won the 
case along with Kirk Tousaw and other co-counsel: Allard v. Canada 
[2016] FC 237.

"There [are] still some police and fire people who go on and on, and 
make all these comments in the media, and whip up the public's fear's 
over cannabis, by these sorts of statements, and at least we now have 
a judge who's examined that evidence and who has found it to be 
lacking in credibility," Conroy said.

He said he hopes the judgment helps the public to overcome its fears 
and the government to get on with legalizing cannabis. He 
acknowledged, however, that Ottawa might instead opt to appeal 
Allard, if only to "buy time" to come up with an overarching approach 
to regulating both medical and recreational cannabis use.

"We don't think that there is a good ground for appeal there, with 
all these findings of fact by the court," said Conroy, who with 
Tousaw has used s. 7 of the Charter to knock down other barriers to 
cannabis use in the predecessor Medical Marihuana Access Regulation 
(MMAR) struck down in R. v. Beren and Swallow [2009] BCSC 429 and R. 
v. Smith [2015] SCC 34.

"The most important thing," Conroy said, "is that the [Federal] Court 
did find that the previous government's attempt to take away the 
ability of medically approved patients to produce cannabis, or have a 
caregiver do so for them, violated their s. 7 Charter rights because, 
again, it was irrational, arbitrary and, in the alternative, overbroad."

Justice Phelan declared that the constitutional rights of plaintiff 
Neil Allard, and three other medical marijuana users, not to be 
deprived of their liberty or security of the person, except in 
accordance with the principles of fundamental justice, were 
unjustifiably violated by access restrictions in the MMPR that 
limited the plaintiffs to dried marijuana grown by licensed producers 
and took away their right to grow marijuana for their own use (or 
have their delegate do so).

"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," Justice Phelan found, in holding that the MMPR is 
arbitrary. "In the alternative, even if some connection is found, the 
restriction is still overbroad and does not minimally impair s. 7 
rights," he concluded.

The judge awarded the plaintiffs their substantial indemnity costs, 
but suspended his declaration for six months to give the government 
time to enact something new.

Osgoode Hall law professor Alan Young, who successfully challenged 
the MMAR in Hitzig v. Canada [2004] 231 DLR (4th) 104, and Canada 
(Attorney General) v. Sfetkopoulos [2008] FCA 328, agreed with Conroy 
that Allard "completely demythologizes the dangers of production...In 
theory, there are no risks or harms from small-scale production of 
marijuana in your home - and that's what Allard showed - if done right."

However, Young said it would not be easy for the government to make 
self-production of marijuana part of its regime for legalizing 
recreational use, rather than confining production to licensed 
producers. "You have to understand that the Canadian public has been 
flooded with highly exaggerated concerns about producing marijuana 
[so] that this government can't just turn around tomorrow and say, 
'People can produce for themselves,' because people need some 
assurance that that's not going to affect house values, create fire 
risks, etc.," Young said. While Allard undercuts such concerns, "it 
takes time for that information to be diffused through the general 
public," he noted. Moreover, the government has not shown any 
willingness to spend the millions of dollars it would cost to inspect 
the production facilities of thousands of medical marijuana users who 
grow cannabis themselves or via a delegate.

Young, who won a landmark Charter challenge to Canada's prostitution 
laws that was unsuccessfully appealed to the Supreme Court by Ottawa, 
said there are times when going to the top court makes sense. Not 
now, he advised. Rather the government should respond to the judgment 
"and work collectively on the recreational and medical side together 
- - and if they need another six months [to formulate their regime], so 
be it, apply for it" in Federal Court, he said. "But I think they 
should bite the bullet, and not tie this up with further litigation 
that, to me, is probably doomed to failure, and would not be a very 
constructive thing to do for patients who are waiting for a 
responsible response from the government as to how to take care of 
their medical needs."

Justice Phelan held that the regime's breach of s. 7 could not be 
upheld under s. 1 of the Charter as reasonable and demonstrably 
justified in a free and democratic society. He noted some of the 
government's key expert witnesses were strongly biased against 
marijuana use and their views were not supported by the evidence.

"I agree that the plaintiffs have, on a balance of probabilities, 
demonstrated that cannabis can be produced safely and securely with 
limited risk to public safety and consistently with the promotion of 
public health," the judge found. "Accepting that fire, mould, 
diversion, theft and violence are risks that inherently exist to a 
certain degree - although I note that these risks were not detailed - 
this significant restriction [in the regulation] punishes those who 
are able to safely produce by abiding with local laws and taking 
simple precautions to reduce such risk. A complete restriction is not 
minimal impairment."

He explained that "the mould and fire risk are addressed by complying 
with B.C.'s Safety Standards Act and installing proper ventilation 
systems. Further, as demonstrated by the plaintiffs, a security 
system reduces risk of theft and violence. Finally, risk of diversion 
is also present in the licensed producer regime; thus it is not 
demonstrated how this restriction has the effect of reducing this risk." 
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MAP posted-by: Jay Bergstrom