Judge Phelan on Allard and the MMPR

In Judge Michael Phelan's own words, the historic ruling in regard to personal production of medical marijuana in Canada

You’ve read all about Judge Michael Phelan's historic ruling in the Allard case, but still don’t quite know what this means for medical cannabis patients in Canada? Have your MMPR medical document and want to grow your own medical marijuana? You may be in luck soon, but not quite yet.

The 109 page document is a very interesting read, detailing both the arguments of the Appellants (Neil Allard, Tanya Beemish, David Hebert and Shawn Davey) and Defendants (Her Majesty The Queen in Right of Canada), as well as Judge Phelan's own reasoning behind his decisions. For sake of clarity, we've listed the final Conclusion and Disposition and Remedy here with some of our own crib notes, questions. In quotes and bold is the Judge's ruling. In between is our notes and commentary.

Phelan, Allard, medical marijuana

Conclusion:

The Appellants in the Allard case argued that the Marihuana for Medical Purposes Regulations violated their Charter rights. After months of deliberation, the Court agreed.

“The Court has concluded that the Plaintiffs have established that their section 7 Charter rights have been infringed by the MMPR and that such infringement is not in accordance with the principles of fundamental justice or otherwise justified under section 1.”

Disposition and remedy:

“For these reasons, I find that the MMPR regime infringes the Plaintiffs’ section 7 Charter rights and such infringement is not justified.”

Will the MMPR be amended, or will a new system need to be created? 

“In several decisions regarding the MMAR, the Courts have struck out either certain provisions or certain words in certain provisions, but otherwise left the structure of the regulation in place. Most of these decisions related to criminal charges where such narrow, feasible and effective excising was appropriate.”
“In the present case, the attack has been on the structure of the new regulation. It would not be feasible or effective to strike certain words or provisions. That exercise would eviscerate the regulation and leave nothing practical in place."

However, the Judge points out, this does not mean to imply that removing the MMPR from the books would mean a return to the defunct MMAR. It could, however, serve as a ‘useful model’ for the government in creating a Charter compliant regulatory model.

“It is neither feasible nor appropriate to order the Defendant to reinstate the MMAR (as amended by current jurisprudence). It is not the role of the Court to impose regulations. The MMAR may be a useful model for subsequent consideration; however, it is not the only model, nor is a MMAR-type regime the only medical marihuana regime, as experience from other countries has shown.”

Judge Michael Phelan also points out that simply killing the MMPR as a program would mean reverting back to full prohibition, with no legal access.

“The remedy considerations are further complicated by the fact that there is no attack on the underlying legislation. Striking down the MMPR merely leaves a legislative gap where possession of marihuana continues as a criminal offence. Absent a replacement regulation or exemption, those in need of medical marihuana – and access to a Charter compliant medical marihuana regime is legally required – face potential criminal charges.”

Judge Phelan argues that the Court could simply suspend the aspect of law that prevents legal medical users from possessing, growing or even distributing outside the legal system, although he points out that he feels this is a last step measure if the government doesn’t comply:

“It would be possible for the Court to suspend the operation of the provisions which make it an offence to possess, use, grow and/or distribute marihuana for those persons holding a medical prescription or medical authorization. However, this is a blunt instrument which may not be necessary if a Charter compliant regime were put in place or different legislation were passed.”

He would prefer, instead, that the government be given six months to fix the system through legislation:

“The appropriate resolution, following the declaration of invalidity of the MMPR, is to suspend the operation of the declaration of invalidity to permit Canada to enact a new or parallel medical marihuana regime. As this regime was created by regulation, the legislative process is simpler than the requirement for Parliament to pass a new law”
“The declaration will be suspended for six (6) months to allow the government to respond to the declaration of invalidity.”

Lastly, Phelan states that because the Appellants have successfully argued their case, their costs will be set by the Court. Substantial indemnity means a substantial portion of the Plaintiff's costs will be reimbursed. This is uncommon, and can imply the Court felt the Defendant did not argue fairly.

“The Plaintiffs have been successful and have brought a case that benefits the public at large. They shall have their costs on a substantial indemnity basis in an amount to be fixed by the Court.”

You can read the entire 109 page document here (PDF).

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