First, the Harper government decided the medical cannabis industry needed licensed producers.

Naturally, you’d expect a civil government to work with the existing medical growers as well as the “illegal,” yet in many ways lawful, taxpaying dispensaries and compassion clubs.

In practice, the democratically elected government rejected nearly all applicants to its new licensing scheme, establishing a “free market” oligopoly of producers with its regulations.

A judge-ordered injunction saved the old growers, but the police continue to crack down on entrepreneurs dispensing cannabis in buildings rather than on the street.

When Justin Trudeau’s Liberal Party won a majority government, it was expected that legalization would finally include the older medical growers, dispensaries and compassion clubs, even the MMPR’s licensed producers, as well as any new entrepreneur eager to grow or buy cannabis and use it in all its forms.

The results have been lacklustre to say the least. But what about the medical community?

If Justin legalizes “for the children,” meaning no home-growing, then what becomes of the medical patients not covered by the injunction? Are they still prohibited from growing their own? Must they rely solely on licensed producers?

What’s the difference between recreational and medical? Medical patients get a tax write-off? Perhaps “legalization” will mean medical cannabis in pharmacies and recreational cannabis sold in liquor stores.

Same supply, different retail outlet.

Perhaps corporate pharmaceutical companies will locate here (think of the jobs!) and begin testing, extracting, and selling pills derived from cannabis.

“Medical cannabis” could come to mean something entirely different.

With Conservative leader Rona Ambrose now accepting Liberal legalization because of reefer madness about the children, it’s clear both parties aren’t ready to give up on prohibition.

What will the Liberal position on medical cannabis be, similar to the Conservatives’? Keep it out of the hands of children and organized crime by taking away self-cultivation and making patients go through licensed producers?

If Justice Phelan rules that the federal government can’t destroy these gardens, will Justin’s Liberal government appeal the decision? That was the plan under Harper and everybody’s lawyers were preparing for it.

But what about now? When John Conroy told patients to vote Liberal, was he under the impression that a Liberal government would cease the appeal process? What if they don’t?

Justice Phelan holds incredible power, perhaps rightfully so, but this is a lot of power for a single person, a third-party arbitrator part of the same tax-funded apparatus the Coalition is suing.

Is this why his decision has taken so long? Is Justice Phelan waiting on the Liberals?

How impartial can judges be in this highly politicized society? Does he read the news? Is he well-informed about the cannabis community here?

Or must he stay somewhat ignorant of external facts and stick to court-evidence to achieve true impartiality?

Maybe it’s a mixture of both. Either way, instead of waiting for Justin, the key component of legalization — self-cultivation — may rest in Justice Phelan’s hands.

  • Ned Fumpkin

    Oh how wrong you are. Phelan J. has only the power to interpret the law as it was passed by Parliament. The idea of activist judges comes from US media. If Phelan J. rules based on emotion, then the FCA will overturn his decision. It really is that simple.

    • Chris Horlacher

      Allard was a constitutional case and the judge very much can rule whether the MMPR can continue or not in its present form.

      The same thing has happened on more than one occasion. It’s the reason why MMAR was first created, and also how we got the summer of legalization in 2003.

      • Ned Fumpkin

        Phelan J. is still restricted by law, i.e. the Constitution, in arriving at his ruling whatever it ends up being. This idea that judges can do anything they want is pure fallacy. If he rules the MMAR is unconstitional, then he can only order the government to bring the law into order with the Charter, or strike it down. That’s the limit of his powers.

        • http://www.calebmcmillan.com Caleb

          Where did you get the impression that I think judges “can do anything they want” ? Phelan is basically ruling whether there is a medical right to cultivate, and if there is, that’s going to influence what legalization looks like. Phelan will have nothing to do with the actual Liberal legalization plan, he’ll (hopefully) strike down the home-cultivation ban in the MMPR as unconstitutional, establishing a precedent for home-cultivation that will influence Liberal decisions.

          • Ned Fumpkin

            Caleb – Your statement that he “holds incredible power” when he holds very limited power.

            Don’t get me wrong, I am completely on the side of people being able to grow a limited number of plants at home. I see a limit of 25 plants in a dwelling place as being reasonable.

            Chris – In 2003 they directed the government to make changes to bring it in line with the Constitution. All the changes were made by Parliament, not the judge.

          • Chris Horlacher

            You’re right, and did parliament remove cannabis from the CDSA or was that a judicial consequence of them not acting in time?

          • Ned Fumpkin

            Cannabis remains in the Schedule to the CDSA. In fact, I think I am one of the few people who can explain how it is defined in the Schedule, i.e. did you know that stalks are not illegal to possess, but seed are?

            The effect was the Regulations. There’s already Regs for industrial hemp, the medical Regs came 15 years after.

            This is why if you are a medical patient, you are not committing a crime, rather a regulatory offence, if you aren’t following the MMPR.

          • Chris Horlacher

            *Sigh* I think you’re deliberately trying to not understand but I’ll leave this here:

            https://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_Canada#Key_court_decisions

            The courts can, and have, repeatedly, nullified laws they found to be unconstitutional.

            Here they are doing it again, only this time relating to mandatory minimum prison sentences.

            http://www.theglobeandmail.com/news/national/ontario-judge-strikes-down-mandatory-minimum-sentence-for-pot-growing/article26580311/

            I don’t know how to make this any clearer at this point so good day to you.

          • Ned Fumpkin

            I am not deliberatley trying to not understand. I have been reading Federal Court decsions for about 20 years. I have a pretty good understanding of how the law works.

            This is an issue of semantics. I never said that the courts can’t declare a law unconstitutional, it’s the changing of, or enacting of laws that they cannot do. There appears to be a general impression that judges are able to change laws; they can’t…they can only tell Parliament to change the law or it becomes nullified.

            This is what happened with the prostition laws. The SCC declared it unconstitutional and gave Parliament a year to fix it. The SCC didn’t substitute their own law.

          • http://www.calebmcmillan.com Caleb

            His decision will affect 30,000+ legal growers. I’d say that’s a lot of power.

          • Ned Fumpkin

            Potential growers. I only want to grow to reduct the cost. If I could get my meds at a decent price then I would ratherbe doing something else. A lot of people have jobs so don’t have the time to spend, and don’t really want the hassle if they can get it somewhere else.

            Under the MMAR the need to grow was based on there not being a supplier other than PPS rope products. Now that the LPs are producing, their prices are dropping, and the quality of meds is going up, eventually the LP system will be viable to both the producers and the patients. Although I still believe that the dsipensary model has a place in the industry.

        • Chris Horlacher

          And yet strike down the MMAR they did in 2003. They even changed the CDSA and Criminal Code.

          If you’re right, how was that possible?