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Court says medical marijuana home growing can continue

Injunction comes days before new federal program


Medical marijuana users won a last-minute court reprieve that will allow them to continue growing their own pot at home just days before changes to Canada's medicinal cannabis program go into effect.

"I'm happy but still a little worried," said a Sea to Sky medical marijuana user and approved home grower who wanted to remain anonymous. "In a year, if we just get our licenses taken away, then what was the point of this extension? It's not a victory — we won an arm wrestle basically."

The move is a minor blow to the federal government's attempts to overhaul Canada's medical marijuana program. As of April 1, licensed commercial facilities — including an approved producer in Function Junction — will begin producing and distributing pot to the more than 37,000 medical pot users in the country.

Until Friday's reprieve, licensed home growers were expected to destroy their marijuana plants and cease grow operations by April 1, instead acquiring medicine from commercial producers. Growers were asked to send a letter to Health Canada by April 30 saying they had disposed of their plants and stopped production, or local law enforcement would be notified.

Health Canada issued a statement following Friday's decision, saying it would continue to treat dried marijuana "as much as possible like other narcotic drugs used for medical purposes," and would review the court's decision.

The last-minute reprieve has complicated matters further for many medical pot patients around the country, said cannabis legalization activist Dana Larsen.

"There are certainly a lot of patients who are going to be left in limbo by this decision because their license expired or because they thought this was going to happen, so in good faith they took down their garden and registered with one of these companies," he said.

The Sea to Sky home grower said the medical marijuana community has already been "hugely affected" by the decision, and that many patients "are without medicine this month and next month because designated growers have backed off and taken their last crops and done whatever they want with them."

Critics of Ottawa's new Marihuana for Medical Purposes Regulations (MMPR) have said the commercialization of the program would make medicine prices unaffordable for some, and would hinder patients access to specific strains home growers had cultivated specifically for certain conditions and ailments.

Health Canada said the projected average price of a gram under the new program would be $7.60, although producers will have the ability to set their own prices. This is still well above the $1 to $4 cost many home growers have been able to achieve cultivating their own product.

In his decision, Judge Michael Manson said medical marijuana patients would be "irreparably harmed" by the new regulations.

"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," he wrote in his decision.

Abbotsford lawyer John Conroy has led the fight for medical marijuana users in the country, and was in court last week seeking the injunction. He said the new regulation would have been a violation of patients' constitutional rights, putting them in a situation "where they have to choose between their liberty and their health.

"(You can't) expect patients to sit around and suspend their constitutional rights while waiting to see if the licensed producers can come up with a market they can afford," he said.

In the court hearing, a government lawyer argued that access to cheap medicine is not a constitutional right, and that there was no scientific evidence to back claims that specific strains are better suited to particular illnesses. Ottawa has also pointed to safety issues associated with home grow-ops, such as potential fire hazards, mould and a higher risk of home invasions.

Months before Friday's injunction, former Whistler Fire Chief Rob Whitton and Mayor Nancy Wilhelm-Morden voiced their concerns over Health Canada's lack of resources to ensure that the home grow-ops in the community cease operations and meet safety standards.

While there have been no complaints reported so far about the 18 licensed home grow-ops in the resort, Wilhelm-Morden said, she maintains that public safety remains a priority.

"This is my personal opinion: Until marijuana is legalized and then properly regulated, this is just going to be a continuing issue," she said, adding that she's not in favour of "blanket" legalization. "The municipality doesn't want to take on the issue of going in and checking for mould and proper and safe conditions. We just don't want to go down that road, but public safety continues to be my concern in this issue."

Earlier this month, council started the process of approving a new zoning bylaw that would limit medical marijuana production to the existing Function Junction facility operated by the Whistler Medical Marijuana Company, the ninth commercial producer licensed in Canada. If approved, the RMOW will still have the option to consider future medical marijuana production facilities through a rezoning amendment.