On February 24, 2016, the Federal Court of Canada in Allard v Canada 2016 FC 236, ruled that Canadians have a constitutional right under section 7 of the Charter to grow their own marijuana for medical purposes.

The Court declared that the Medical Marijuana Regulations are invalid and gave the Federal Government six months to revise them. The Federal Government has announced that it does not intend to appeal the Allard decision and that the Government will proceed with its mandate to legalize marijuana.

The Decision

While the legal status of the recreational possession and consumption of marijuana is in flux, the use of medical marijuana has been permitted in Canada since 2001, subject to strict regulation.

Since 2014, Marihuana for Medical Purposes Regulations (the “Medical Marijuana Regulations”) have permitted medical marijuana use, but have allowed only licensed producers to grow and distribute medical marijuana. As such, patients are prohibited from growing marijuana for medical purposes in their own homes.

In Allard v Canada, the Federal Court has ruled that the Medical Marijuana Regulations are unconstitutional. Patients’ rights to liberty and security of the person are infringed when they are prohibited from growing marijuana for their own medical use.

The Allard case was brought forward by medical marijuana users who argued that the legislation unfairly restrict their ability to access medical marijuana. The legislation removed patients’ ability to produce marijuana for themselves, forcing patients to purchase the drug from a licensed producer, regardless of whether the producer had the required strain of marijuana, or whether the user could afford the drug. It was argued that such restrictions force medical marijuana users to choose between their liberty or their health. If they cannot afford to purchase the drug from a licensed producer, they must access marijuana illegally.

In response, the Federal Government argued that the restrictions imposed by the Medical Marijuana Regulations were justified for reasons of public health, safety, and security.

The Federal Court concluded the restrictions in the Medical Marijuana Regulations, including the restrictions limiting certain methods of consumption and preventing patients from growing their own marijuana, are not connected to the stated objective of the legislation – reducing risks to health and safety for patients, and improving patient access. As a result, the Court found that the access restrictions in the legislation are arbitrary, overbroad, and not in accordance with the principle of fundamental justice. The Court concluded that the Charter rights of medical marijuana users are infringed by the Medical Marijuana Regulations and that such infringement is not justified.

The Court therefore declared the legislation invalid and gave the Federal Government six months to revise it. The Federal Government has announced that it will not appeal the Allard decision, and will continue with its mandate to legalize marijuana.

As a result of the Allard decision, the Federal Government is required to permit some level of personal production of medical marijuana. Once amendments to the legislation are made, this likely will result in easier and more affordable access to marijuana for medical purposes. In the interim, patients are still required to follow the procedures set out in the Medical Marijuana Regulations, which require patients to obtain the drug from licensed producers.