Medical marijuana patients nationwide can breathe a sigh of relief. Justice Michael L. Phelan has struck down federal regulations prohibiting patients from growing marijuana at home.
"The Court has concluded that the Plaintiffs are entitled to a declaration that their section 7 Charter rights have been infringed 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."
That means the injunction allowing patients to grow at home will continue while the government is given a window to fix the current laws so that they don't infringe on the rights of patients.
"[A win] could include making the current injunction permanent, expanding it, declaring the CDSA [Control Drug and Substances Act] invalid and a whole host of other options...He could just declare it unconstitutional to criminalize personal/caregiver medical production, suspend the declaration for 6 months or a year and send it to the government for a response. Any win is likely to include, at least, extending the current injunction because it would be odd to find in favor of a Charter right yet end the injunction that protects patients."
The decision came nearly a year after the trial wrapped, and nearly two years after the standoff between medical patients and the federal government began. In Jun. 2013, the government introduced the ban on cultivating marijuana at home for medical use. When Health Canada legalized medical marijuana in 2001, patients were initially allowed to grow their own plants under the provisions of the Medical Marihuana Access Regulations (MMAR).
Back then, there were only 100 licensed patients, so the fact that Canadians were growing a federally banned substance didn't seem to concern the Liberal government of the day. When the number of patients licensed to grow at home rose to more than 37,000 in 2013, the Canadian government - led by the firmly anti-cannabis Prime Minister Stephen Harper - worried that the proliferation of marijuana could jeopardize public safety.
So Health Canada repealed the MMAR and replaced them with the Marihuana for Medical Purposes Regulations (MMPR), which were introduced in June 2013 and came full into effect in March 2014.
Well, sort of. The Allard challenge resulted in an injunction allowing patients who were licensed under the MMAR to continue growing at home until the case was resolved. The basis for the case is that the MMPR hampers a patient's access to their medicine.
Today, Justice Phelan agreed.
This is a major win for patients nationwide. But it may only be one victory in an ongoing fight with the federal government over medical marijuana. There's no word on yet on whether the federal government will accept the decision. But Kirk Tousaw - one of the lawyers representing patients in the trial - expects an appeal. In his Facebook statement, he said:
"I don't know if the Crown will appeal if we win. I expect it will and that this fight will continue no matter what the decision is."
So patients can celebrate today's win. But the final victory is likely yet to come.