Law Times

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CLLdir_LT_Jan18_16.indd 1 2016-01-13 12:21 PM May have impacts on other drug cases, say lawyers Growing weed at home good for some patients' rights BY YAMRI TADDESE Law Times T he Federal Court's recent decision to strike down a ban on medical marijuana users from growing their own cannabis is a positive decision for patients' rights, lawyers say, but some are concerned about the precedent the ruling could set for cases involving other drugs. "It seemed to say that when a therapy or treatment is impacting your s. 7 rights, you should have unfettered access to it. So I have some concerns around what that potentially could mean for more dangerous therapy, maybe opi- oids or other painkillers," says John Fowler, president of Su- preme Pharmaceuticals Inc. For a small classification of patients, the court's decision in Allard v. Canada was the right one, Fowler says, adding the de- cision will mean more access for individuals who cannot be suf- ficiently served by the current Marihuana for Medical Purposes Regulations. Those are individuals who, due to financial circumstances or quantity of marijuana needed for their ailment, or the specif- ic strain they require for their ailment, need some kind of support outside of the MMPR, Fowler says. But he adds the Al- lard decision may have left bad precedent when it comes to how s. 7 of the Charter of Rights and Freedoms will be considered in future similar cases involving other treatment. "I do believe that it's arguable that Justice [Michael] Phelan reached a little bit to come to what I believe he thought was the ethical conclusion for these in- dividuals," Fowler says. "It's rela- tively settled that affordability is not a protected right under s. 7, and even though the case be- gins with a statement that this is not about affordability . . . much of the analysis and the legal rea- soning centred around afford- ability," he says. Phelan did say the case isn't about economic interests. Spe- cifically, he said the plaintiffs were not asking for an obliga- tion on the government's part to subsidize their access to medical marijuana. "However, the interests have an economic dimension due to restriction of access caused by affordability," Phelan wrote. "Al- though affordability (as defined by both Dr. Walsh and Dr. Groo- tendorst) encompasses a choice, this choice is only necessary due to state action, which must be Charter compliant. It is not a life- style choice or a preference choice as argued by the defendant." In the ruling, Phelan said the ban on growing cannabis for medical purposes is "arbitrary." "Ultimately, considering that liberty and security interests are engaged, the Court has found that the evidence of each Plain- tiff 's individual circumstances was sufficient to demonstrate that the regulatory restrictions in the MMPR upon the individ- uals (including but not limited to the prohibitions against certain methods of consumption and plant growth by a patient or his or her delegate) does not bear a connection to the objective of the legislation and is therefore arbi- trary," Phelan said. Vladimir Klacar, corporate commercial lawyer at Bennett Jones LLP, says the decision takes patients' rights one step further. "I think it's a very positive decision in terms of providing access and ensuring that the government is there to provide access to patients that are in need of medical cannabis and choose to use medical cannabis," he says. Klacar says the Allard deci- sion could be an opportunity for the federal government to address issues of access and con- cerns around medical marijuana that were previously raised by the Supreme Court of Canada in R. v. Smith, a decision that said the government's ban on pot brown- ies for users of medical marijuana is "arbitrary." "It might be possible that the government goes and addresses some of the concerns in Smith by addressing this current legis- lation as well," Klacar says. "A lot of patients rely on dispensaries and other black market [sources] to access different forms of can- nabis they cannot obtain from licensed producers. So this might be an oppor- tunity as well for the government to expand the range of products that can be sold." For the medical marijuana industry, the Allard ruling is in fact "a massive net positive," ac- cording to Fowler. That's because a lot of licensed medical marijuana companies have been operating under a cloud of uncertainty created by this case, Fowler also says, add- ing this decision should remove that uncertainty. "Any time you're operating a business and you need to raise capital, whether that's public or private market, uncertainty is never good for business," he says. "I believe there were some who thought there was a possi- bility that Allard would totally unwind the MMPR and I think Phelan's decision is very clear that his remedy really applied to a really small subset of sick Can- adians who have some combin- ation of requiring a large dose, a specific dose, or inability to pay for that dose." The case, of course, could be appealed, and according to Fowler, there is at least one point that could be argued on appeal: Although the judge in Allard accepted that the patients did not marshal scientific evidence to prove that one strain of canna- bis works better than another, he agreed with them anyway. "I think that's at least open- ing up a risk of appeal," Fowler says. LT John Fowler says for the medical marijuana industry the Allard ruling is in 'a massive net positive.'

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