Skip to main content

Jason Wilcox, co-founder of the Cannabis In Canada Society, oversaw the fundraising effort to bring a case to the Federal Court that resulted this week in the court’s ruling that patients have a right to grow their own medical marijuana.John Lehmann/The Globe and Mail

The federal government should use a court decision ordering it to rewrite the rules on medical marijuana as an opportunity to legalize the storefront sale of such medicine, experts and commercial growers say.

A Federal Court judge in British Columbia ruled earlier this week that patients have a right to grow their own medical marijuana, overturning regulations that forced them to purchase the drug through federally licensed producers.

Justice Michael Phelan gave the federal government six months to rewrite the current regulations.

But advocates say the government shouldn't stop there.

During a celebratory news conference following Wednesday's landmark ruling, John Conroy, lead counsel for the plaintiffs, said the judge recognized that the ongoing explosion of illegal dispensaries across the country is a result of patients "voting with their feet" to ditch the current mail-order system regulated by Ottawa.

"The next fight is making sure the dispensaries are legal," he said. "The great majority of patients would like to be able to go to something like that. And that needs to happen as the government needs to look at the [medical marijuana rules] and the [licensed producers] and the dispensaries and come up with a regime that takes all them into account."

Justice Phelan concluded that the updated marijuana regulations introduced by the previous Conservative government in 2014 are "overbroad and arbitrary" because they effectively force patients to choose between their medicine and prison.

In the decision, he said that "dispensaries are at the heart of cannabis access," and he suggested the growth of such illegal storefront shops is connected to the restrictive nature of the current medical marijuana system.

The judge also said the evidence in the case "shredded" the credibility of the government's expert witnesses who meant to justify the overhaul of Canada's medical-marijuana rules. Two witnesses in particular – an RCMP expert on organized crime and Surrey's fire chief – provided "a lack of objectivity both in data and analysis" when arguing against home-grow operations.

"The federal government was and would continue to be the major beneficiary of the move to the [revised regulations] in terms of cost savings, and the persons who would continue to be most impacted were the patients due to the increase in cost [of cannabis products]," Justice Phelan stated.

Neil Boyd, head of Simon Fraser University's criminology school and a scholar of prohibition, said while Ottawa is retooling its rules to allow for home growing, it makes sense to grant the two dozen licensed commercial growers the right to face-to-face sales.

"A dispensary is a better venue for distribution than mail order," Prof. Boyd said. "That's just not a good delivery model for medicine and it's too restrictive."

He said Health Canada wanted to restrict medical pot sales to mail orders because of concerns that the product would be diverted to the black market. But Justice Phelan ruled that Health Canada provided no evidence that the plaintiffs or other licensed home growers were selling any pot illegally and "no effort had been made to collect such data."

Philippe Lucas, executive director of the Canadian Medical Cannabis Council, which represents three commercial producers, said his group is in favour of the government opening up face-to-face sales of medical marijuana.

"We'll see what Health Canada decides or how they choose to respond to [the court decision], but obviously I don't think that anyone in the medical cannabis community right now doesn't foresee a time when medical cannabis will be available at community-based outlets – whether that will be pharmacies, storefronts or otherwise," said Mr. Lucas, who is also a vice-president at Nanaimo-based grower Tilray.

While Health Canada is revisiting its rules on home growing, he said it should also conduct a broader review of the program's problems, which include restrictions on the types of extracts and costly online retention of data.

Brent Zettl, CEO of licensed producer Prairie Plant Systems Inc., said a broader system of distribution of medical marijuana could be scaled up to include pharmacies, which have recently signalled they want to sell the drug.

Michael Haines, CEO of licensed grower Mettrum, said he doubts that Health Canada will be able to incorporate such changes to its regulations so quickly, and instead he believes storefront sales of medical cannabis will come alongside the eventual legalization of recreational marijuana, which is expected to take at least a year.

"I don't think they could establish a safe retail system in any short order," Mr. Haines said. "Bricks-and-mortar distribution? That's the complex aspect of the whole thing."

Jason Wilcox, a cannabis advocate who oversaw the fundraising effort to bring the case to the Federal Court, called the ruling a "huge blow to the licensed producers and really to the regulatory scheme that was introduced by the Conservative Party."

Federal Court medical marijuana decision

Follow related authors and topics

Authors and topics you follow will be added to your personal news feed in Following.

Interact with The Globe