February 24, 2016 8:25 am
Updated: February 26, 2016 4:12 am

Court rules patients can grow own medical marijuana

WATCH: People who use medicinal marijuana and are licensed to do so may now grow their own pot at home. Will it be a matter of time until it is on pharmacy shelves? Kristen Robinson reports

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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 licenced 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.

WATCH: Landmark ruling for medical marijuana patients


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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.”

READ MORE: London Drugs, other major retailers look into selling medical marijuana

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.

READ MORE: Legal marijuana market attracting growing field of savvy investors

“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.

Surrey’s fire chief says regulation needed

A day after the ruling, Surrey Fire Chief Len Garis argued that the government needed to make the safety of grow-ops a priority going forward.

“Whatever regulatory system is in place, or was in place, or is in place today, didn’t seem to be adhered to or followed,” he said.

Garis, who is also adjunct professor at the University of the Fraser Valley, recently issued a report on the hazards of growing marijuana in residential dwellings.

He said 294 of 314 licensed residences in Surrey were inspected by experts—and that in everyone, there were problems, including dangerous wiring, mold, unsafe mechanical modification, and holes in fire break walls.

“If it’s going to be continued to be grown in homes, I would hope there’s going to be oversight for regulations that’s going to make sure it’s done safely, and after growing has ceased, that the property is inspected and remediated.”

WATCH: As John Daly reports, Garis fears a federal court ruling, green lighting homegrown medical marijuana, will generate a trail of badly damaged homes, waiting for unsuspecting buyers and renters.

© 2016 The Canadian Press

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