The historic decision in the Allard case was a huge win for Canadian medical marijuana patients. And it may set the stage for the next big fight and hopefully another win for patients – the legalization and regulation of storefront dispensaries that are popular (and controversial) across the country. And they seem to have a champion in the judge who decided the Allard case – Michael Phelan.
On Feb. 24, Federal Court Justice Phelan ruled that the Canadian government’s ban on growing medical marijuana at home infringed on the Charter rights of patients. The government now has six months to fix the law so that patients can grow marijuana at home for personal use.
The ruling also stoked support for the country’s “gray market dispensaries” located at street level across the country. According to Canada’s current medical marijuana laws, the only legal way for patients to buy cannabis is through a mail-order system with growers licensed by Health Canada. In 2015, police across the country enforced the law by raiding dispensaries in Halifax, Saskatoon, Nanaimo and elsewhere.
While authorities are legally empowered to do so, various activists and advocates have called for an end to the raids. They argue that many dispensaries offer safe, accessible spaces where patients can get in-person advice on strains, using devices like vaporizers and other aspects of their medicine.
The dispensaries gained even more support from the judge in the Allard case. Justice Phelan wrote,
“Although dispensaries were not a focus of the parties’ submissions, I find Ms. Shaw’s evidence [as a representative of the dispensaries] to be extremely important as dispensaries are at the heart of cannabis access,” Justice Phelan, Reasons for Judgment (February 2016).
Phelan concluded that the number of dispensaries has grown over the years in part to address a need for patients created by the the nation’s medical marijuana laws.
“Although not legal under any past or previous medical marihuana regulations,” Phelan wrote, “current trends in dispensary growth suggest a connection between the restrictions to access under the MMPR and the need for patients to obtain their medical marihuana from illicit sources.”
That opinion could make an immediate difference. To get a take on Phelan’s comments, we contacted Kirk Tousaw – one of the lawyers for the plaintiffs in the Allard case. We asked him if the government could license and regulate the dispensaries while modifying the country’s marijuana laws to allow patients to grow at home.
“It is open for them to do that,” Tousaw explained. “I certainly urge them to take this opportunity to listen to people in the medical cannabis industry – and I don’t mean just the licensed producers – and to learn some lessons about the way people want to access cannabis, the way growers have been producing quality cannabis in this country, and to draft a policy that is inclusive instead of exclusive.”
Moreover, Tousaw hopes that the government will take this opportunity to begin a dialogue about cannabis instead of fighting with patients, dispensaries and others in the courts repeatedly:
“I’d like to open up a dialogue with the government,” said Tousaw. “Because in the past, governments – particularly the Harper government – were reluctant to talk to people like me about these issues so that we can actually have a system in this country that benefits all Canadians and will work in the long term. I’ve been litigating these cases for a long time. And I’d much prefer if we didn’t have to fight for patients rights over and over again….I’d prefer to sit down at the table with policymakers and come up with a solution that doesn’t involve constant fighting in the courts.”