Judge strikes down law barring patients from growing medical marijuana

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.

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 that the Marijuana for Medical Purposes Regulations, which required patients to buy from licensed producers, violated their charter rights.

In a written ruling issued Wednesday, he suspended the decision to strike down the law for six months, allowing the federal Liberal government time to create a new medical marijuana regime.

Phelan also extended a court injunction that allowed people who held licences to grow their own marijuana to continue until a further court order.

The constitutional challenge was launched by four British Columbia residents who argued that the 2013 legislation 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.”

Phelan heard the case between February and May 2015 in Vancouver’s Federal Court.

Federal government lawyers argued the new regime ensures patients have a supply of safe medical marijuana while protecting the public from the potential ills of grow-operations in patients’ homes.

But John Conroy, a lawyer for the plaintiffs, told the court that the legislation robbed patients of affordable access to medicine. Some people were left with no choice but to run afoul of the law, he argued, either by continuing to grow their own or by purchasing on the black market.

Phelan concluded that the plaintiffs have established that their charter rights have been infringed by the legislation.

“Accepting that fire, mould, diversion, theft and violence are risks that inherently exist to a certain degree — although I note that these risks were not detailed — this significant restriction punishes those who are able to safely produce by abiding with local laws and taking simple precaution to reduce such risk.”

Health Canada did not immediately respond to a request for comment.

The Liberals have committed to regulating and legalizing recreational marijuana, but have said little about any plans for medical marijuana since being elected.

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

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