Medical marijuana patients across Canada are breathing a sigh of relief after Federal Court judge Michael L. Phelan struck down federal regulations prohibiting patients from growing marijuana at home.
Phelan's decision was the culmination of the Allard case - a Federal Court challenge to a decision by the previous Conservative government to disallow patients from growing their own cannabis, and force them to buy from licensed dispensaries through a mail-order system.
While awaiting a decision on the case, the court imposed an injunction that allowed many (but not all) patients to continue growing cannabis at home, as they did under federal government's regulations in place prior to the 2014 changes introduced by the Conservatives. To grow under the injunction, a patient had to have a production license that was valid as of Sept. 30, 2013 that was connected to a possession license that was valid as of Mar. 21, 2014.
In his ruling, the judge extended the injunction, and the government has been given six months to revise medical marijuana regulations to allow patients to grow their own cannabis at home.
Here are five points of interest for patients and advocates across the country.
1. Victory a source of joy and relief
To gage the importance of the decision, we reached out to medical marijuana patients and asked how they reacted. Steven Stairs - a cannabis advocate who has used medical marijuana to treat his glaucoma since 2009 - was overjoyed at the news:
"I reacted with elation and joy and excitement and relief. There's a whole bunch of adjectives you could throw in there. I'm just happy - happy we won. As far as I'm concerned we won. Yeah, there's no expansion [to the injunction so that all patients can grow at home]. Yeah there's a six month hold up for the government to revise regulations. But as far as I'm concerned, we won."
Debbie Stultz-Giffin - a medical marijuana patient since 2000, and the Chair of Maritimers Unite for Medical Marijuana - was equally excited:
"I was overjoyed when I saw the word 'we won' flash across my computer screen," she told Civilized. "I was just elated. It was the end of 23 months of living in a very surreal headset - just wondering and waiting - I couldn't allow myself to believe that this judge would find anything different. But at the same time, you let elements of doubt to creep in now and then. Certainly, if the results have been different, I would have been devastated."
2. Access to affordable medicine
For patients like Stultz-Giffin, the decision has a significant impact on her quality of life:
"I simply can't afford the licensed producer prices," she told Civilized. "It would have cost me $60,000 a year to maintain my supply of medicine and ensure my quality of life by using the LP [licensed producer] system. Certainly I could never afford that living on a limited fixed income."
Stulz-Giffin was diagnosed with multiple sclerosis in 1999. After trying various medications that caused terrible side effects, she found cannabis was the only medicine that worked. But government restrictions imposed in 2014 would have taken that option away: "They were literally forcing me to choose between my freedom and my health."
Steven Stairs faced a similar price barrier in the way of effective treatment:
"Having a reliable stable source of cannabis gives me a quality of life treatment that otherwise would be unsustainable for me to have if i had to buy it at a street level price or even from a dispensary....That burden alone, emotionally, is extremely detrimental to people's health. And I'm sure we've lost people while waiting for this decision over the last years."
3. Freedom from prosecution
For many patients, the decision has immediately improved their quality of life by alleviating worries about being raided by police. While the Allard case was being heard, the court imposed an injunction allowing many patients to continue growing cannabis even though their cultivation licenses had expired. However, the injunction didn't offer total protection from prosecution:
"It's been extremely stressful," Steven Stairs told Civilized. "A lot of police in the country have no idea about the Charter injunction or any of this. So we've been relying on some discretion, some hiding in order to hopefully not have our doors kicked in due to uninformed police....I don't want to call the police ignorant. But there wasn't enough communication between the government and the police to protect our rights."
Debbie Stulz-Giffin was also living in fear of police action:
"I feel like I lost 100 pounds today of stress being lifted off my shoulders," she told Civilized. "We shouldn't be looking over our shoulders wondering if the next knock at the door is the RCMP coming to arrest us, charge us and potentially prosecute us for our choice of medicine."
4. Not all patients are protected
But not all patients will benefit from the decision immediately. Kirk Tousaw - a cannabis advocate and one of the attorneys representing the plaintiffs in the Allard case - told Civilized:
"For the people who had been protected by the injunction, they are continuing to be protected. But for about 28,000 Canadians who weren't protected, there is still no direct ability to lawfully produce for themselves. But a precedent has been set....That may be be cold comfort if the police knocked down the door and dragged them off to jail."
But Tousaw isn't surprised by Justice Phelan's decision not to expand the injunction to allow all medical marijuana patients to grow cannabis at home:
"It's hard to speculate," Tousaw said when asked why Pheland didn't extend the injunction. "But judges don't like to legislate. Sometimes when you're trying to craft a [legal] remedy, and you begin to realize that what you are doing is beginning to write your own regulatory regime, you step back and realize that that is not your role....Judges are reluctant to impose remedies that appear to be crafting legislation."
5. Don't appeal, get on with the business of reform
As per the decision, the government has six months to revise medical marijuana regulations so that the rules don't infringe on the Charter rights of patients. But Kirk Tousaw hopes they will act faster than that:
"People's lives, people's health and people's liberty are being compromised," he told Civilized. "I think it's incumbent upon the health minister not to wait to address those problems."
But first, the government has 30 days to decide if they want to appeal the decision. Tousaw thinks an appeal is a likely - albeit wasteful - recourse that the government will take:
"My experience is that the federal government tends to appeal these types of cases…That's what they've done in the past....But the case should be sending a message to the government to stop wasting tax money prosecuting these cases."
Debbie Stulz-Giffin agrees. She wants the government ask itself a tough question before launching an appeal:
"How wise would it be to appeal in light of their current economic situation and this huge deficit?" she wonders. "This last court case alone has cost the federal government at least a million dollars. And that's just one court case out of many that have been going on since the program was put in place [15 years ago]. How many millions of dollars have been thrown away? I'm hoping the Liberal government will be wiser [than its predecessor] and see the light."
Federal Health Minister Jane Philpott did not rule out appealing the ruling, but told reporters in Ottawa future reforms to the system would respect patients' rights and the court.
"The court has essentially said the regime that was put in place by the previous government ... did not meet constitutional guidelines, and therefore they have asked us to respond to that," Ms. Philpott told reporters in Ottawa.
"My priority is to make sure, on the matter of medical marijuana, that Canadians who require access to it have fair access. ... At the same time, of course, the regulations were put there for a purpose, and we will make sure, if continued regulations are required, that they will be done in a matter that is acceptable to the court."