A Red Deer judge refused to stay charges against a man accused of drug trafficking, who argued his constitutional rights had been violated.
However, Red Deer Court of Queen’s Bench Justice Robert Graesser did agree that Shaun Charles Howell’s rights were violated by restrictions on cannabis concentrations under the former Access to Cannabis for Medical Purposes Act.
Howell was charged in March 2017, after RCMP descended on his unlicensed grow op in the Innisfail area. He was charged with possessing more than three kilograms of cannabis marijuana for the purposes of trafficking and unlawfully producing cannabis.
RCMP seized 739 marijuana plants weighing just over 182 kilograms, harvested marijuana weighing almost 54 kilograms, and almost three kilograms of dried marijuana buds. A working hash oil extraction lab and equipment were also seized.
The outbuilding contained eight sea cans outfitted with sophisticated equipment, including high-intensity grow lights, fans, air conditioners, carbon dioxide generators, dehumidifiers and light timers.
In April 2019, Howell filed a constitutional challenge, arguing that the Controlled Drugs and Substances Act and the Access to Cannabis for Medical Purposes were inconsistent with Canada’s Charter of Rights and Freedoms.
Howell argued that the access to cannabis for medical purposes regulations failed to provide reasonable access, which meant some might have to go to the black market and face criminal prosecution. Marijuana users could also face health effects because of delays, availability and cost, he said.
It was also argued that a prohibition against cannabis oils and extracts over 30 mg/100mL deprives people of the right to make reasonable medical choices about their best treatment options.
In a 39-page decision released last month, Graesser accepts that Howell tried to become a licensed cannabis provider in 2013 and 2014 and had an application pending when he was arrested in 2017
“He appears to have applied in good faith and attempted to satisfy the onerous Health Canada requirements,” says Graesser.
Howell testified that he had used marijuana since the 1980s to treat depression and arthritis pain.
Difficulties in getting marijuana from government-licensed providers led him to try to remedy that by setting up his own grow op on a co-op model. He set up his facility in Red Deer County in mid-2016.
Howell provided marijuana to a small number of people, including an autistic homeless man, whom he provided with marijuana at no cost.
The judge says Howell produced no evidence he had the necessary marijuana licences.
Graesser said while Howell has the right to grow and possess marijuana for his personal use, staying his charges is not appropriate.
“The public interest in having this matter adjudicated on its merits outweighs the benefits of a stay of proceedings in this action.”
The judge had a different take on the issue of the prohibition on cannabis with a concentration over 30 mg/100mL. Howell’s charter rights and those of others who used marijuana were violated, he says.
Howell said the judge’s ruling on the concentration restrictions is important.
“For myself, and other medical (marijuana) patients it’s a win for a big part,” said Howell. “I think the judge got a pretty good idea of what people were looking for in concentrates and edibles.”
Howell said he has a daughter with epilespy who relies on cannabis with higher concentration levels than previously allowed.
As to his own charges, Howell is awaiting his next court appearance on Oct. 13 to find out what will happen.
Since the Access to Cannabis for Medical Purposes legislation was replaced by the federal Cannabis Act in 2018 — which also contains concentration limits — the impact of the decision is unclear.
“I believe that this is a landmark decision for the cannabis industry,” said John Carle, executive director of the Alberta Cannabis Council.
“We don’t know how this will influence the current Cannabis Act, as it was under the old medical-only act that was replaced by the current Cannabis Act,” said Carle.
“With a review of the federal Cannabis Act coming next year, we are hopeful that this decision will be strongly considered in that revision.”
Carle said the council hopes that if the province reviews its Alberta Cannabis Act, it will consider the implications of the judge’s decision.