Court challenge to Manitoba's ban on homegrown, non-medical cannabis struck down by judge

A Manitoba judge has upheld the province's ban on homegrown non-medical cannabis, saying it is within its rights to impose the regulation.

The ruling is in a case brought before the courts in August 2020 by TobaGrown, a cannabis advocacy organization, which argued that the federal Cannabis Act doesn't give provinces and territories the permission to implement a ban, and that the existing regulation is overly punitive.

In her written decision, released last Friday, ManitobaCourt of King's Bench Justice Shauna McCarthyrejected a claim that the ban was unconstitutional and an infringement on federal jurisdiction.

She ruled that the main purpose behind Manitoba's ban is to "support the provincial government scheme enacted to control and regulate the purchase, distribution, and sale of cannabis in a manner consistent with public interest."

TobaGrown's case looks specifically at Section 101.15 of the Liquor, Gaming and Cannabis Control Act, amended in October 2018 to include cannabis, which states that a person must not cultivate the drug at their residence.

Manitoba and Quebec are the only provinces to forbid the cultivation of cannabis at home. Home production of recreational cannabis results in a $2,542 fine in Manitoba.

The provincial legislation stands in contrast to Section 12of thefederal Cannabis Act,which states that up to four marijuana plants can be grown ata residence at one time.

Plans for appeal

Jesse Lavoie, founder of TobaGrown, says he knew the case would be an uphill battle after the Supreme Court of Canada upheld Quebec's ban on homegrown cannabis last April, finding that the federal law should not be interpreted as the right to "self-cultivation."

"So obviously we are disappointed. However, after reading the ruling, we do see that the judge is very sympathetic with our cause," Lavoie told CBC News on Monday.

He says there are plans to appeal the ruling, as "we feel [McCarthy] did make a legal error, and that is why we are pushing forward with this appeal."

At a hearing last March, lawyers for TobaGrown argued that the ban doesn't help the province regulate the distribution or sale of cannabis and is instead "a separate attempt to re-criminalize home cultivation."

They said the ban exceeds the bounds of provincial regulation and veers into criminal law.

The government's lawyers, however, argued the purpose of the ban was a means of ensuring that cannabis in Manitoba was distributed through licensed government sources and limiting access to youth.

On the issue of jurisdiction, they argued the ban falls into provincial powers outlined in the constitution, including property and civil rights.

In her Friday decision, McCarthy wrote that TobaGrown had not convinced her that the ban veers into criminal law "but rather was seen as a means of regulation and controlling access to cannabis in the interest of the public."

"I am not satisfied that the dominant purpose, or primary motivation behind the prohibition, was to suppress a social evil or condemn an activity to which the legislature generally disapproved."

Hopes thatKinew government drops ban

Individuals who breach the Liquor, Gaming and Cannabis Control Act can face fines of up to $100,000 and/or up to year in prison.

McCarthy rejected Lavoie's argument that the current penalties are overly punitive, writing that although they are "very significant," they are not "so punitive as to demonstrate that the true purpose of the prohibition is to re-criminalize the activity of growing cannabis at home."

But the cannabis advocate has reason to be optimistic, as "the new government being the NDP who previously promised to drop the ban we're very hopeful that they will step in before we have to go back to court," said Lavoie.

Premier-designate Wab Kinew voiced opposition to the province's current rules in a 2019 Facebook post: "I don't smoke but if you do we'll let you have 4 plants and align the rules with the national law. So you'll be able to do homegrown," he wrote.

However, Lavoie says his fight in the courts will go on if the incoming provincial government walks back on previous pledges involving the ban.

"If need be, we will continue to go to court," he said."We've been doing that for three-and-a-half years and have no problem doing it as long as it takes."