Health Canada isn't backing down after a federal court ruled against the government's efforts to ban medical marijuana users from growing their own pot.
In the wake of Friday's court decision, the federal department which runs the medical pot program said it will "review the ruling and consider its options," but indicated it wants to maintain its current approach.
"While the Courts have said there must be reasonable access to marijuana for medical purposes, Health Canada’s goal is to treat dried marijuana as much as possible like other narcotic drugs used for medical purposes," a spokesperson told HuffPost Canada in an email.
The Federal Court ruling is a small victory for patients and a potential setback to the Conservative government’s plans to turn cannabis into a regulated billion-dollar industry.
Judge Michael Manson said patients would be “irreparably harmed” by new medical marijuana regulations banning home grow operations starting April 1.
"I find that the nature of the irreparable harm that the applicants will suffer under the (updated regulations) constitutes a 'clear case', which outweighs the public interest in wholly maintaining the enacted regulations,” Manson said in a written statement released Friday.
The ruling means patients who already hold a Health Canada-issued authorization to possess are exempt from the new rules forbidding them to grow their own supply and allows them to possess up to 150 grams of marijuana.
The department warned patients in a blunt press release earlier this month that they would have to destroy all of their plants and provide a letter to confirm they had done so, or their names would be handed over to police. The court's ruling appears to have made this policy unenforceable.
John Conroy, the lawyer representing the patients’ coalition, argues the new legislation is unconstitutional because it forces them to choose between liberty (which they could lose if they continue to grow their own) and their health (if they cannot afford their regular doses under the new system, their health could deteriorate).
“Let’s not take away the right of the patients to be able to produce for themselves at less cost and to have quality control over what they do,” he said.
“If we’re in a position where people can access this medicine without having to suffer the way many, many Canadians do in relation to other types of drugs that they can’t afford or that aren’t covered by various plans, then I think that’s a victory for all patients.”
The government agency last year announced plans to repeal the Marihuana Medical Access Program (yes, the government still spells it with an “h”), which it has said jeopardizes public safety because of mould and fire risk from grow-ops. The government also believes the program is susceptible to criminal abuse by those who resell their products on the black market.
Starting April 1, the system was to be replaced with the more tightly controlled Marihuana for Medical Purposes Regulations, under which Canadian medical marijuana patients will be required to get their doses from one of a handful of licensed producers. Their prices will range from $4 to $12 a gram.
However, some of Canada’s 40,000 medical marijuana patients argue that they will be unable to afford their medicine once they are forced to buy from large-scale suppliers because they can grow it themselves at a fraction of the price — for as little as $1 a gram.
An overhaul of the medical marijuana system is now on ice at least until a trial date can be set, which is expected to happen within the next year.
“Upholding their constitutional rights pending trial is significant as far as we’re concerned,” Conroy said. “But trial still involves additional evidence and additional issues so we’ll just have to see what happens at that time.”
Some 13 companies have been granted licences to grow and sell marijuana on a commercial scale, many of them just within the past few months.
The new licensed producers had been scrambling to meet the April 1 deadline, when they expected demand for their product to spike. Many producers are still new and their plants have yet to mature, leaving their product scarce. The injunction does not affect the new licensing system.
The Supreme Court has previously ruled that patients who have doctor’s approval must have reasonable access to a legal supply of marijuana.
Still, Health Canada makes it clear that it does not endorse medical marijuana, and doctors have been reluctant to prescribe it, saying they have yet to see conclusive studies that show benefits outweighing its potential harm.
Canada first regulated medical marijuana in 2001, but only after the government was forced to do so by the courts. A year earlier, an Ontario court concluded the law at the time violated the rights of sick people who used pot to alleviate their symptoms.
The number of people authorized to possess — and often grow — marijuana has increased to 37,000 this year from fewer than 100 in 2001. The federal government says the current licences translate to about 3.5 million plants.
In this week's court hearing, a government lawyer said there is no constitutional right to cheap medicine, and he argued there was no scientific evidence to show specific strains of marijuana are better suited to particular illnesses or patients.
The patients' lawyer suggested the government had offered little concrete evidence that the medical marijuana system actually poses as many risks as it claims.
While the injunction application didn't specifically target the new commercial licensing regime, the government argued that allowing some patients to continue growing their own pot would prevent the fledgling medical marijuana industry from fully developing.
The Federal Court ruling notes the potential for the injunction to affect the commercial market, but Manson writes the impact will be short-lived and won't have a major impact on the government's ability to implement its regulations.
A trial has not been scheduled, though Manson's judgment states a trial is expected within nine to twelve months.
— With files from The Canadian Press and Daniel Tencer