Allard v Queen is a constitutional case, pending decision, that will determine whether cannabis patients who were given the option to grow for themselves will be allowed to continue. 

The former federal government tried to eradicate this market, but the patients sued and were awarded an injunction.

The question is now whether the Trudeau government will pursue this constitutional battle.

With legal cannabis on the horizon, does a Trudeau government really want a segment of the population with a constitutional right to “reasonable access” that will include the right to cultivate?

If Justice Phelan agrees with the plaintiffs, the federal government’s lawyers can appeal the decision, and this was part of the plan under the old government.

Otherwise, the duty to regulate the patient-growers will be sent back to the federal government where they will have to resurrect the old Health Canada bureaucracy or create a new one.

The government’s lawyers made the case that resurrecting the Marihuana Medical Access Regulations (MMAR) would burden the taxpayer, but this could be somewhat avoided if authority was decentralized to the municipalities, since members of the community have more control over land-use and how it affects them directly.

As well, for-profit insurance companies could ensure public health and safety, as they’ve been doing all along.

However, given the unlikelihood of this approach, the other options available would be either to resurrect the MMAR or scrap the whole medical program altogether.

If cannabis is legal recreationally, does one really need a doctor’s prescription? Isn’t Harper’s Marihuana for Medical Purposes Regulations (MMPR) sufficient for the various subsidies and tax exemptions?

If everyone can grow their own, let’s say up to three plants, will medical patients be exempt from this limit?

If so, how will they be regulated?

The MMAR was costly, ineffective, and a ruling in the patients’ favour would impose a “positive right” to growing cannabis.

In a legalized environment, with many special interests wanting to corner the market, why should we expect the Trudeau government to give up on Allard?

Should we even expect Justice Phelan to rule in the patients’ favour?

This isn’t the charterhating government of the Conservatives.

Justin Trudeau is the son of the prime minister who brought us the Charter of Rights and Freedoms.

But ideological commitment may create unintended consequences where a segment of the population has a right to reasonable access that includes cultivation.

If recreational users are limited in how much they can grow themselves, but medical patients have a charter right to grow as much as they want, this could create incentives for everyone to become medical even in a legal, recreational environment.

Especially for serious growers looking for a way to circumvent recreational regulations. But don’t worry, the Liberals want to implement “new, stronger laws, to punish [them] more severely.”

From the stand-point of any government and their corporate interests, it makes sense to keep appealing Allard.

But it might make more sense for Justice Phelan to rule in the government’s favour.