Canadian judge strikes down law barring patients from growing medical marijuana

A cannabis plant is shown in southwest Quebec on Oct. 8, 2013. A Federal Court judge is expected to release a decision today on whether medical marijuana patients have the right to grow their own cannabis.The constitutional challenge was launched by four British Columbia residents who argued that legislation introduced by the previous Conservative government violated their charter rights.

VANCOUVER - A Federal Court judge has struck down "arbitrary and overbroad" legislation introduced by the former Conservative government that barred medical marijuana patients from growing their own cannabis.

Judge Michael Phelan found the law violated patients charter rights, but he suspended his decision for six months to allow the federal Liberal government time to create a new medical marijuana regime.

Phelan also extended a court injunction allowing people who held licences to continue to grow their own marijuana.

The constitutional challenge was launched by four British Columbia residents who argued that the 2013 Marijuana for Medical Purposes Regulations blocked their access to affordable medicine.

"Their lives have been adversely impacted by the imposition of the relatively new regime to control the use of marijuana for medical purposes," Phelan wrote.

"I agree that the plaintiffs have ... demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with the promotion of public health."

Kirk Tousaw, a lawyer for the plaintiffs, hailed the decision as a victory not just for medical cannabis patients, but all Canadians.

He called on the federal government to allow new patients to grow medical marijuana. About 28,000 people held licences under the old regime and are covered by the injunction. Two of the plaintiffs were not covered by the injunction, he said.

"They're suffering because they have an inability to access sufficient quantities of medicine to meet their medical needs as a result of the government's actions," he said.

"The health minister, prime minister, they need to act very quickly. Don't wait the six months. Don't come up with a lame and weak response as the previous governments have."

Health Minister Jane Philpott said it was too early to say if the government would appeal. She said she will be working with the Justice Department to ensure there's an appropriate regulatory regime in place.

The Liberal government has committed to legalizing recreational marijuana, but has said little about any plans for medical marijuana since being elected.

Philpott said recreational and medical cannabis should be treated as "two separate issues."

"We're going to have to completely review the regulations around access to medical marijuana," she told reporters in Ottawa.

Canada's system involving licensed producers has grown into a multi-million dollar industry, and the decision caused stock prices to dip. Canopy Growth Corp. share prices on the on the TSX Venture Exchange had dropped about 7 per cent as of Wednesday afternoon.

Mark Zekulin, president of Tweed Marijuana Inc., a subsidiary of Canopy, said it would be "heartbreaking" if the federal government shut down the licensed-producer system entirely. But he doesn't expect that will happen.

"We've built a world-class facility ... and are producing very high quality product that you can't get anywhere else," he said. "I don't think six months from now it's just going to get shuttered and people are going to be out of jobs."

Peace Naturals CEO Mark Gobuty said personal growth can co-exist with licensed producers in a regulatory regime.

"We're all allowed to grow tomatoes and cucumbers at home, but how many of us do?" he asked. "If that is what's in the best interest of all Canadians, then I'm all for it."

The Cannabis Patients Association of Canada, which represents people who held licences to grow marijuana under the old regime, applauded the decision.

"This is about putting the rights of the patient at the centre of public policy decision-making," executive director John Lorenz said in a statement.

But Ronan Levy of Canadian Cannabis Clinics, a network of Ontario medical marijuana clinics, said allowing people to grow their own marijuana might make doctors more wary of prescribing it.

"Can you imagine what it would be like if you went to a doctor, they prescribe antibiotics, and you got to go home and mix up your own antibiotics? I don't think doctors are going to be comfortable with that," he said.

The judge awarded costs to the plaintiffs to be determined by the court at a later date.