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Win or lose, lawyer Kirk Tousaw hopes medical marijuana patients receive some measure of protection for their right to grow cannabis at home when a Federal Court decision comes down tomorrow.

It’s been nearly a year since Tousaw and a team of lawyers wrapped up the Allard case – which is challenging the federal prohibition against growing small amounts of cannabis for personal use – and the long wait is almost over. The Federal Court will release its decision first thing tomorrow morning.

Tousaw has posted a note on his Facebook page about the key things he’ll be looking out for, depending on whether they win or lose the challenge.

If they win

First, the potential good news.

The case specifically involves a patient’s right 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So Health Canada repealed the MMAR and replaced them with the Marihuana for Medical Purposes Regulations (MMPR), which were introduced in June 2013 and came full into effect in March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.

On his Facebook page, Tousaw says it’s hard to predict what a “win” will mean for medical marijuana patients. “If we win, we don’t know what the win will look like,” he writes. “We asked for several possible remedies but the Judge can do what he feels is best according to the Charter.”

Here are the basic scenarios he envisions:

“[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.”

If they lose

Tousaw is prepared to lose their challenge. He is worried the court will tell patients to stop growing their own cannabis immediately, so he has asked the court to give them time to shift from growing their own to finding an alternative supply with a licensed producer.

“If we lose, the Crown argued that the injunction should immediately end and all patients should immediately stop producing medicine or be subject to arrest. We argued that even in a loss situation, the Judge needed to give people time to shut down their gardens and not turn them into criminals overnight. We don’t know what the Judge will do.”

Whatever the result, Tousaw expects there will be an appeal. “This is a trial court decision with national effect,” he writes. “If we lose we will appeal to the Federal Court of Appeal and we will seek to continue the protection of the current injunction and/or expand upon it. 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.”


CANLii Reference Page For The Case