Court Challenge - Introduction of Health Canada’s Marihuana for Medical Purposes
Federal Court of Canada ruling on Allard et al. v. Her Majesty the Queen in Right of Canada in Vancouver on February 24, 2016.
By Len Garis
The case was heard in the Federal Court in March 2015 and challenged the introduction of Health Canada’s Marihuana for Medical Purposes regulations (MMPR), which fully came into effect on March 31, 2014.
The new regulations were intended to prevent residential marijuana production and to restrict the growing of medical marijuana to licensed commercial growers in areas zoned appropriately for this activity. The Fire Service across Canada had welcomed the MMPR, which would have reduced the many fire and safety hazards associated with residential marijuana production.
The plaintiffs argued that the MMPR violated their Charter rights, with their key argument being that it limited their access to affordable medical marijuana. The new regulations were stayed in March 2014 pending the results of the court case. Although existing residential medical grow operations continue, no new licences have been issued by Health Canada for residential growing.
Ruling and Implications
In his ruling, Justice Michael Phelan ordered that the MMPR be struck down, but gave Health Canada six months to rewrite the regulations to include provisions for growing marijuana in a residential setting. The status quo will continue for the six-month period, after which either the new regulations will take effect or the former Medical Marijuana Access Regulations will return.
In essence, the ruling supported the plaintiffs’ claim that the regulations were unconstitutional, and overlooked evidence about the hazards associated with residential grow operations.
Through my roles as Fire Chief and as Adjunct Professor at the School of Criminology and Criminal Justice at the University of the Fraser Valley, I provided expert testimony during the trial in 2015 and had prepared the report Growing Marijuana in Residential Dwellings – A Report on the Hazards following a request from the Department of Justice in spring 2014.
This report was filed in October 2014 with the Federal Court Registry in Vancouver, and was based on a quantitative analysis of about 1,855 residential marijuana grow operations that had been inspected through our Electrical and Fire Safety Initiative from March 2005 to December 2013. These included 1,541 illegal operations and 314 operations that were licensed through Health Canada to grow medical marijuana (prior to the introduction of the MMPR).
Based on the evidence outlined in the literature and an analysis of this data, the study concluded that residential grow operations – both illegal and licensed – pose a significant health and safety hazard to the growers, future occupants, casual visitors, first responders and other service personnel who visit the site. Similar dangers were found in both illegal and licensed operations, and in fact, licensed operations tended to have more chemical and structural hazards.
The decision means that the revised MMPR will allow for the residential growing of medical marijuana – something that we know is unsafe.
In the interest of public safety, it be a consideration the fire Industry lobby Health Canada to ensure the new regulations address the known hazards associated with residential grow operations.
This could be achieved in part by providing local authorities with access to the addresses of licensed growers to allow them to enforce fire, safety, health and zoning regulations, and to ensure that decommissioned growing sites are remediated.
Len Garis is the City of Surrey Fire Chief, an Adjunct Professor in the School of Criminology and Criminal Justice & Associate to the Centre for Social Research University of the Fraser Valley.