John Conroy, who is representing four people challenging last year's changes to the medical marijuana system, told Federal Court that some patients have been left with little choice but to run afoul of the law, either by continuing to grow their own pot or purchasing it on the black market.
"The patients continue to be placed in a situation where they have to choose between their liberty and their health," Conroy said Monday.
He argued that such a choice violates the charter, and he asked a judge to order the government to allow patients to continue growing their own medical marijuana.
Patients whose doctors prescribe marijuana have had legal access to the drug in Canada since 2001, when the government introduced regulations in response to a court decision. Under that regime, patients could either grow their own marijuana, designate someone to grow it for them, or buy it directly from Health Canada.
The Conservative government overhauled the system last year, shifting production from patients' basements to large-scale commercial operations.
Patients immediately launched a constitutional challenge of the updated regulations, and many have been able to continue growing under the terms of a temporary court injunction.
Conroy said marijuana sold by commercial producers is too expensive for some patients, who can't always find the specific strains that work for them.
Shawn Davey, one of the plaintiffs in the case and the trial's first witness, told the court he was severely injured in a motorcycle accident almost 15 years ago, leaving him with constant pain, memory loss and poor balance.
He said he's been using marijuana to treat his symptoms since about 2002, though he obtained it on the black market until he was approved under the federal rules in 2010.
Under the federal system, Davey went through two designated growers until he and a friend built a grow-op in a barn, which required more than $27,000 worth of equipment. He estimates it costs about $330 a month to grow his marijuana, plus about $500 for electricity.
He said his monthly expenses are still lower than they would be if he bought marijuana from a licensed producer. While prices range from below $5 a gram to $15, Davey suggested he would probably end up paying about $8 to $10 per gram for about 750 grams each month.
"I can't do it bro, there's no way," he said, referring to the cost.
"And I trust what I grow. ... This is my body and I don't want anyone else dealing with it."
Conroy said the plaintiffs don't want to dismantle the commercial system but that patients should still have the option to grow their own marijuana.
Federal government lawyer Jan Brongers said the new regime ensures patients have a supply of safe medical marijuana while protecting the public from the potential ills of basement grow-ops, such as mould, electrical fires and crime.
Brongers said that with the old model of relying on patients to produce their own medical marijuana, the government did not anticipate the exponential growth in demand.
He also suggested the "enormous quantities" of marijuana consumed by some patients aren't "medically justified."
"Canada has adopted a new system to ensure access to a safe and lawful supply of marijuana for those with a demonstrated medical need with reasonable limits designed to ensure the safety of both patients and the public," Brongers said.
He said marijuana should be regulated like other pharmaceutical drugs in a safe and controlled environment.
Several dozen people watched the proceedings from the public gallery while another group protested on the street. Many of the supporters openly smoked marijuana, in some cases carrying the drug's pungent odour into the courtroom.
The trial is expected to last several weeks.
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