Every day, lawyer and cannabis advocate Kirk Tousaw checks his email first thing in the morning, hoping for news that he and thousands of medical marijuana patients across Canada have waited for since last May. That's when Tousaw and a team of lawyers wrapped up the Allard case, which challenges the federal prohibition against growing small amounts of cannabis for personal use.
The e-mail he's waiting for is the notice that a decision has been reached, and when it comes he'll race over to federal court for good news, he hopes:
"It could be any day," Tousaw told Civilized. "But it also could be weeks or months. The difficulty is that we presented a ton of evidence to the court. Federal court judges don't get time off to review evidence from trials. They have to do the next trial. There were literally stacks and stacks of paper that this judge needs to read. And most of it is fairly dense."
The delay reflects both the complexity and the importance of this case to cannabis, and to Canadian law in general, says Tousaw:
"The issues are important and far-reaching, not just for cannabis in this country but the development of the jurisprudence around the Charter of Rights and Freedoms. And so, it's no surprise to me that it's taken this long."
Thousands originally given right to grow at home
The case specifically involves a patient's rights to grow marijuana at home for medical purposes. 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).
In 2001, 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So Health Canada repealed the MMAR and replaced them with the Marihuana for Medical Purposes Regulations (MMPR), which were introduced in June 2013 and came full into effect in March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.
The potential impact on recreational cannabis
According to Tousaw, the case could open the door for all Canadians to grow at home once the legalization of recreational cannabis takes effect:
"[I]f you see a situation in Canada where medical patients have a lawful right to produce for themselves," Tousaw told Civilized, "it's gotta go into the mix when Mr. Blair and whomever else ends up on this task force that he's putting together begin to discuss how to deal with recreational cannabis, particularly the personal production of recreational cannabis in a non-commercial way. It doesn't make a lot of sense, in my view, and wouldn't really be legalization if you continue to criminalize people for having home gardens. I think that's a must. The question is, what are the restrictions - if any - going to be on that home production."
So if Justice Michael Phelan rules in Allard's favor, then it might not be a question of if, but when Canadians can begin growing cannabis at home, and how much they will be allowed to cultivate. And if the government tries to keep cannabis out of Canadian gardens, they'll likely wind up dealing with more constitutional challenges:
"I don't think the charter would allow a situation where you can buy a plant in the stores but you can't grow it in your backyard. That seems to me to be a very serious infringement on Section 7 of the Charter [of Rights and Freedoms]," which protects a person's autonomy and personal liberties.
Tousaw also thinks it's in the government's interest to allow Canada's green thumbs to grow cannabis:
"I think we need it [for these reasons]: A, it will reduce reliance on the black market; B, it's a cheap source of cannabis for people; C, hobby gardening is generally speaking a positive activity and society."