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Ottawa won't appeal marijuana ruling, will address rules

A February Federal Court decision struck down a ban on medicinal marijuana patients growing their own pot.

Dave Chan/The Globe and Mail

Ottawa has decided not to appeal a Federal Court ruling that struck down a ban on patients growing their own medical marijuana, and instead will rewrite its rules by the end of the summer to make cannabis more affordable and accessible to patients.

Health Minister Jane Philpott told reporters outside Parliament on Thursday – the deadline for appealing last month's landmark ruling – that the government will meet the Aug. 24 deadline set by the court to update its regulations.

"The Federal Court's concern was that, under the current regulations, medical marijuana was not appropriately affordable and accessible to Canadians, and so those are the parts of the regulations that we are required to address," Dr. Philpott said. "At this point, I am not going to speculate as to what kind of regulations will be put in place or how the current regulations will be amended, but certainly we will take into respect every recommendation of the court decision."

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The former Conservative government overhauled the medical marijuana system in 2014, establishing a network of large commercial growers that ship their products directly to customers while prohibiting patients from growing at home – something that had been allowed under the previous rules.

Four patients in British Columbia challenged the regulations in Federal Court, and last month a judge struck them down and gave the government six months to craft a solution.

The minister's announcement comes as the Liberal government is preparing a task force to craft rules around the legal sale of recreational pot, which could take up to two years to become law.

Dr. Philpott would not elaborate on whether these changes will allow for storefront sales of medical marijuana or enshrine patients' right to grow their own marijuana.

Last month's ruling found the current system to be "overbroad and arbitrary" because it effectively forced patients who were previously allowed to produce their own marijuana to choose between their medicine and jail. "I agree that the plaintiffs have, on a balance of probabilities, demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with the promotion of public health," Justice Michael Phelan wrote.

During the court proceedings, plaintiff Shawn Davey, a Mission, B.C., man on disability who smokes and eats up to 25 grams of cannabis products a day, told the judge that he spent roughly $830 a month growing 750 grams that he makes into edible products to treat chronic nerve pain he suffers from an old motorcycle accident. At about $1.10 a gram to produce his own medicine, Mr. Davey said he could not afford to pay for cannabis provided by the federal system, which charges on average $8.14 a gram, according to Health Canada data from December.

John Conroy, lead counsel for the plaintiffs in the case, said he hopes Thursday's announcement signals a turning point in the way the government regulates the stigmatized drug. "When the [previous medical marijuana system] came in, we took 10 years litigating the restrictions to make them constitutional and we were mostly successful," he said in an interview. "Hopefully, we're not going to be in further litigation with what they come down with in terms of [new] regulations."

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Mr. Conroy said he will be back in Federal Court on April 22 asking Justice Phelan to expand an ongoing injunction so that all of the roughly 38,000 patients licensed under the old rules are allowed to produce their own medicine until Health Canada crafts new regulations.

He said he will also be asking the judge to allow those same patients to possess edible forms of cannabis, as well as to move their production sites after events such as landslides or kitchen fires stop them from growing at home.

After the ruling, Mr. Conroy promised that the next fight between cannabis activists and Ottawa will be over the 200 to 300 illegal pot shops that first cropped up in B.C. several years ago and now dot the country. He said the judge recognized that the ongoing explosion of these dispensaries is a result of patients "voting with their feet" to avoid the current mail-order system regulated by Health Canada. These dispensaries sell products from growers that don't face the strict and expensive regulatory hurdles Health Canada requires of licensed producers.

Whether it comes as part of the government's retooling of the existing medical system or alongside the eventual legalization of recreational marijuana, representatives of Canada's licensed growers say they want the ability to sell their products in stores.

With a report from Daniel Leblanc in Ottawa

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About the Author
News reporter

Mike Hager is a general assignment reporter at the newspaper’s B.C. bureau. He grew up in Vancouver and graduated from the University of Western Ontario’s Huron College and Langara College. Before joining The Globe and Mail, he spent three years working for The Vancouver Sun. More

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