On March 18th, B.C. lawyer John Conroy appeared in court to take a stand against the ban on personal marijuana cultivation under the new MMPR program.
This week, the lawyer took the first steps towards launching a constitutional challenge against Health Canada’s new medical marijuana program. Conroy is representing a group of patients who dispute new rules which ban them from cultivating their own cannabis.
Conroy fought Tuesday for an injunction to temporarily delay the new program, which forces patients come April 1 to stop growing at home and purchase from a Licensed Producer instead.
After hearing arguments from Conroy and the government’s defense, the Federal Court judge said a decision would be available Friday. We caught up with John Conroy to learn more about the issues at stake.
Q: How does affordability arise in this case?
The court talks about the practical unavailability of things. The government will say that we’re seeking an economic benefit but we’re saying quite the contrary. What we’re saying is that those who can’t afford the prices from Licensed Producers (LPs) surely should be able to produce their own at less cost as a way of reasonably accessing their medicine.
Q: Has strain selection been an issue discussed in previous Canadian constitutional challenges?
That issue hasn’t really been brought up. In R. v. Parker (2000), the defense talked about control over the quality of his medicine, as opposed to having to go to the black market.
There’s certainly no clear cut decisions out there that deal with cannabis strains – the issue is not usually broken down into strains. The focus is control over the quality of your product, which may include the different strains that you have found work for you as opposed to others that don’t. It’s basically about controlling the medicine you’re going to take, whether you can afford it at LP prices or not.
Q: The government’s concerns regarding personal cultivation can be boiled down to fire, mold and backdoor dealing. Is that correct?
They say mold, fire, public safety, and threat in terms of grow rips (or ‘rip-offs’ – armed thefts of marijuana crops). The government talks about risk to children from being around pesticides and other things you would normally see in farms or even in some houses. They also discuss children being exposed to illegal activity – but of course that would only be if the children were in an illegal grow-op. Those are the basic reasons they’ve put forward.
Q: What statistics is the government providing to back their claims of concerns over mold, fire and public safety?
I have a number of police reports that deal with situations where they’re investigating excessive production and diversion to the black market, in which they’ve said ‘oh well, we’ve seen mold in some places’, or they say ‘having a grow-op makes your house have a greater risk of fire than not having one’ – which of course is the same as having a gas fireplace or not having one.
So the Crown points to a number of risks and tell a number of stories. They say there are x amount of fires in medical grows with x amount of grow rips. But they could not give us a breakdown of statistics. None whatsoever, in terms of mold or people suffering from mold or admissions to hospital or anything like that.
In terms of the fires, the evidence seems to indicate that there have been a few. But they could not give us any statistics as to whether it was one that wasn’t properly put together by a certified electrician and other professionals. Was it one that was just done by the individual because of a privacy issue? The same is true for public safety. The Crown counsel could not breakdown any statistics for each year of the MMAR program or any of these particulars.
Q: There was mention of a ‘less than one percent’ statistic and a ‘one to three percent’ statistic. What do those refer to?
Those are from the cost-benefit analysis prepared by Delsys Research for the government, having looked up these various police reports and then trying to work out economic models and statistics in terms of how they fit. They’re rough estimates because of the problem of distinguishing between different types of things – not just legal and illegal grow-ops, but also legal ones done properly or not done properly.
Q: So if we concede the government’s case about the risks of allowing personal cultivation, then your argument is that we allow driving, we allow swimming pools, we allow gas stoves — if we allow all these freedoms that have inherit risks, we can also allow personal gardens for medicine?
It’s a matter of reasonable regulation, not prohibition.
Q: You say there was really no attempt to do inspections on the part of the government.
The record of Health Canada inspections is very, very poor.
Q: You also mention the book by Susan Boyde ‘Killer Weed’ where she points to an exaggeration on part of the police and the media regarding grow-op problems. Is that correct?
Q: Has what we discussed so far covered everything you want people to know about this case? Can you sum up the government’s position in a nutshell?
We say that the constitutional rights of the patients are being affected. That was established in Parker and Hitzig and so on, and even though there was a government supply, clearly the liberty and security of the person and the personal interests of patients are affected here.
We say that the government relying upon fire, mold and public safety – those are what we call Section 1 issues of constitutional law. We’ve defined the ambulant scope of those rights, and what we’re saying is that it includes the right to cultivate medical marijuana. (Section 1 of the Canadian Charter of Rights and Freedoms confirms that the rights listed in the Charter are guaranteed, but includes the reasonable limits clause, legally allow the government to limit an individual’s Charter rights.)
The government is trying to limit that right, and they bare the burden under the constitution of proving that the limit is demonstratively justified in a free and democratic society, and that they don’t impair the person’s right any more than is necessary, that they don’t go too far, these sorts of things.
We say that the government had to come up with this exemption – the MMAR is the exemption. Now they’re suddenly changing it and taking away the right to produce. They’ve been taken to court many times over this production issue, and now they’re trying to take it away completely without making sure the new exemption is a viable option that covers everybody. So we expect a number of people will continue to grow, and if they’re charged they will raise this as their defense. So we will have multiple cases going in court using this defense, as opposed to one that settles it for now until trial.
Q: So you’re asking for an injunction on the new MMPR parts that involve cultivation until you can explore these in a court room case?
We’re only asking for an injunction to prevent the repeal of the MMAR personal production and designated grower provisions. The MMPR can continue on, to have Licensed Producers and develop and so on. We’re not trying to stop that. We say there are some defects such as the dried marijuana and the possession limits, but we’re not trying to stop that legislation.
Q: The government is basically saying let’s wait and see how this is going to affect patients, and if they suffer it’s no big deal?
You can check John Conroy’s website for more updates on the case and pending decisions