BC Supreme Court Allard-like Decision Today

Update: 2PM PST Sept. 16 2015

Cannabis in Canada received the following statement from Tousaw’s office, asking for clarification on the case today.

Today the BC Court of Appeal upheld British Columbians’ right to seek relief in BC courts by denying the Crown’s appeal to stay the case of our clients. Our clients are seeking relief from the government limiting their rights to personal production of cannabis, the possession of a full 30-day supply rather than the arbitrary 150 gram limit and the ability to move one client’s storage site. We are expecting an injunction decision from the BC Supreme Court in the near future.  

Update: 10AM PST Sept. 16 2015

Tousaw took to Facebook for an additional clarification about today’s court decision. It appears what Tousaw initially said would be an injunction decision from the BC Supreme Court is actually a request for a stay from the Court of Appeal.

So…..serious miscommunication. The decision coming down today is from the Court of Appeal on the Crown request for a stay. NOT the injunction decision. Sorry.

And then: 

We won the appeal. Crown stay denied. Case goes on. No idea when injunction decision coming.

Original story:

Lawyer and cannabis activist Kirk Tousaw caused some confusion Sept. 15 when he tweeted about an upcoming BC Supreme Court decision that had “Allard-like” consequences, referring to the ongoing federal injunction that stopped the federal government from destroying patients’ gardens.

It was speculated that the BC Supreme Court decision would include the ability for patients to change the address of their site, as well as end the 150 gram cannabis limit imposed by the federal court. Due to the vagueness of his original tweet, Tousaw posted a clarification to Facebook last night.

The decision will apply only to Tousaw’s four clients in this particular case and not all patients covered under the Allard injunction.

This is a separate Charter case and we are still waiting Justice Phelan’s Allard decision, expected to come before the end of this year.

Tousaw’s full message, from Facebook, is below:

“Big decision tomorrow in BC Supreme Court. My last post about it caused some confusion. Here’s what happening. The case is Boivin, Garber, Sproule and Newmarch v. AG Canada. I’ll call it Boivin because its normal to go in alphabetical order.

I represent 4 high-dosage former MMAR patients, names above. Shortly after the Allard case was filed in Federal Court, I filed a similar, but not identical, action on behalf of my clients in BC Supreme Court (BCSC). The BCSC has the right to decide Charter issues that are raised by residents of BC. When the Allard injunction came down, it was clear that my clients (a) qualified for the injunction, but (b) continued to be aggrieved by the 150-gram limitation and the inability to change addresses.

There was some preliminary fighting. Crown asked the Court to stay – freeze – Boivin because they said Allard was the “national test case” and other people should just wait and see what happens. We disagreed, argued that Allard and the injunction helped but didn’t fully resolve my clients’ issues, and argued that people have the right to go to BCSC for individual Charter relief even though Allard was helping to an extent. The Court, at the trial level, sided with us and refused the stay. This was a big win because a few hundred other cases had already been stayed. The Crown immediately appealed, we argued the case before the BC Court of Appeal, and that decision hasn’t been released. But since we won at the trial level, the case is moving ahead.

A few weeks ago we argued our injunction request. We sought to have my clients’ MMAR rights preserved including personal production and the 30-day possession amount. Because one client also needed to change his storage site, we argued for that also. The Crown opposed it. The Court reserved decision, meaning that it didn’t decide right away. Tomorrow is the decision.

The decision will apply directly only to my 4 clients. The Crown expressed concern – indeed it was the bulk of their argument on both the stay and the injunction – that a decision in my clients’ favor would open up the floodgates and that many BC patients protected by Allard (or semi-protected) would come to BCSC seeking similar relief and using the Boivin decision as a precedent. My response was that I couldn’t control the actions of other litigants but that all residents of BC have the right to seek help from the BCSC if they feel their Charter rights are being violated, and that just because another case is going on they shouldn’t be denied relief if the Court believes relief is justified. Moreover, I argued that if Allard is a loss in Federal Court, my clients shouldn’t just have to wait for that, potentially have to destroy plants/genetics/medicine (or break the law) then come back to BCSC for their own injunction.

Onward we go.”