Medical Cannabis Growers Have Privacy Rights: Federal Court

A Canadian federal court has ruled that medical cannabis growers have privacy rights. This ruling comes after a lengthy battle where a couple of journalists tried to get Health Canada to disclose the location of medical cannabis growers.

Once upon a time, the government regulated medical cannabis through the Marihuana Medical Access Regulations (MMAR). Under the MMAR, patients could grow their own cannabis plants or have someone designated to do it for them.

In 2013, the government replaced the MMAR with the MMPR (Marihuana for Medical Purposes Regulations), which outlawed personal growing and established large producers who are still with us today as Canada’s cannabis cartel. 

The government said growing cannabis was dangerous. Patients said it wasn’t, so they sued and won. (See Allard.)

With legalization, all Canadians can grow cannabis, but only four plants per household. A medical cannabis patient could theoretically be licensed to grow hundreds of plants.

A freelancer and reporter from the Globe and Mail evidently felt uncomfortable with MMAR growers still farming. 

They brought the case to court. They felt the public had a “right to information” concerning private medical cannabis gardens.

Some reporters have no problem doing investigative journalism when it comes to uncovering your privacy. But heaven forbid they investigate corrupt Western governments and the revolving door of corporate and state actors.

How it Began

The court battle started in August 2017 when the Globe asked Health Canada for a list of addresses of medical cannabis patients who were licensed to grow and possess “industrial quantites” of cannabis.

In other words, the Globe began with the faulty premise that legal medical grows with many plants created some kind of public safety hazard. (I suggest they re-read the Allard ruling and focus on something important like Roxam Road, but I digress).

Health Canada – to their credit – denied the Globe the addresses of these legal, private medical grows. The Globe said (again ignoring Allard) there was evidence that these farms and gardens were a public health issue and supplying the black market.

They also said these gardens and farms could become prime targets for robberies. (I fail to see how publishing their addresses would help in that regard, but again, I digress.)

Health Canada wouldn’t even provide postal codes. They said there are health privacy laws that protect medical cannabis patients.

Enter the Information Commissioner

The federal Information Commissioner sided with the Globe and decided that Health Canada should provide three out of the six-digit postal codes of these private gardens.

Health Canada still said no, so, in a rare move, the Information Commissioner took Health Canada to court.

In a Federal Court decision, Justice William Pentney ruled with Health Canada. 

I find that Health Canada was justified in refusing to release more information, because of the serious possibility that it could lead to a breach of privacy through the identification of an individual in the datasets. I also find that Health Canada was not required to undertake a more detailed analysis of the risks associated with releasing more information pursuant to its obligation to sever and release as much information as is reasonable.

Justice William Pentney

Medical Cannabis Growers Have Privacy Rights

Since the Globe lost its case, they didn’t bother linking the ruling in their article. You can find a copy here or linked below in the footnotes. Justice Pentney dismissed the application based on section 25 of the Charter.

Section 25 of the Canadian Charter of Rights and Freedoms is a provision that allows for limits to be placed on certain rights and freedoms in the Charter to preserve the “rights and freedoms of others.” The purpose of this section is to provide a balance between individual rights and the rights of society as a whole.

It states that the rights and freedoms protected by the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 

The government can limit a person’s rights in certain circumstances. But it must show that the limit is necessary to protect the rights and freedoms of others or to achieve a compelling government objective.

In this context, Justice William Pentney ruled that,

In the end, the jurisprudence, combined with the evidence Health Canada produced, leads me to conclude that the application cannot succeed. The Supreme Court of Canada has made it clear that in a clash between access to information and individuals’ privacy rights, privacy must prevail… On the evidence here, I am persuaded that the risks to privacy that would arise from any further disclosure of the records are simply too great.