Federal Court upholds right of medical marijuana users to grow their own

Derek Kilbourn

Sounder News

Tuesday, March 1 2016

With a decision made this past week in the Federal Court, those individuals who were previously able to grow their own marijuana for medicinal purposes can continue to do so.

Honourable Michael L. Phelan issued the judgement in the matter of Neil Allard and Others V. Her Majesty The Queen In Right Of Canada this past Wednesday, Feb. 24.

In 2013 the plaintiffs instituted proceedings in Federal Court in order to challenge the constitutionality of the new medical marijuana regime.

The federal government had previously put in place the Marihuana Medical Access Regulations [MMAR] in 2001. The Harper Government repealed the MMAR on March 31, 2014, and put in place a substantially different regime under the Marihuana for Medical Purposes Regulations [MMPR].

More specifically, the Plaintiffs seek Declarations from the Court under section 52 of the Canadian Charter of Rights and Freedoms (the Charter) that the MMPR are in violation of Section 7 of the Charter, which states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” and not saved by Section 1, which states, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The action was heard at trial before Justice Phelan through February, March, June and July of 2015. 

The Court has concluded that the Plaintiffs are entitled to a declaration that their Section 7 Charter Rights have been infringed upon by the MMPR and that such infringement is not in accordance with the principles of fundamental justice or otherwise justified under Section 1. 

The declaration will be suspended for six (6) months to allow the government to respond to the declaration of invalidity.

In issuing the judgement, Phelan stated, “This case is not about the legalization of marijuana generally or the liberalization of its recreational or lifestyle use. Nor is it about the commercialization of marijuana for such purposes.

“This case is about the access to marijuana for medical purposes by persons who are ill, including those suffering severe pain, and/or life-threatening neurological conditions. Such persons also encompass those in the very last stages of their life.”

Phelan pointed out that there is no attack on the underlying legislation, which allows for marijuana to be used for medical purposes. 

“Striking down the MMPR merely leaves a legislative gap where possession of marijuana continues as a criminal offence. 

“Absent a replacement regulation or exemption, those in need of medical marijuana – and access to a Charter compliant medical marijuana regime is legally required – face potential criminal charges.”

He suggested the appropriate resolution, following the declaration of invalidity of the MMPR, is to suspend the operation of the declaration of invalidity to permit Canada to enact a new or parallel medical marijuana regime. 

“As this regime was created by regulation, the legislative process is simpler than the requirement for Parliament to pass a new law.”

The declaration will be suspended for six (6) months to allow the government to respond.