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Canadians are allowed to grow their own medical cannabis, but at what point does it become illegal?

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This past summer, a retired police officer and his wife started noticing a funny scent in the backyard of their home in the Maples neighbourhood of Winnipeg. Sometimes, they could smell it from their bedroom.

The house next door had been sold in 2017, but the man had never met the new neighbours. Now, he noticed security cameras hung from the eaves of the adjacent home.

“The blinds are always pulled,” he said. “Never see anybody around. I could hear a motor, or a fan, running in the basement.”

One day, the ex-cop saw a young man outside the house.

“I went over and said, ‘What’s going on around here?’ He says, ‘What do you mean?'”

The retiree told his new neighbour he could smell marijuana coming from the house.

“And he smiled, and he says, ‘Oh, I’m growing some medicine for my mother,'” he recalled. “He said he had a prescription, that’s the word he used.

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“I said, ‘That’s bulls—-.'”

His suspicions confirmed, the retiree called former colleagues at the Winnipeg Police Service.

“They came out, checked around the house. They could smell it as well… They went back, and the next day I get a phone call from District 3 saying the guy has a medical marijuana licence for up to 292 plants,” he said.

“I don’t think they were supposed to tell me that, but they did.”

“…The guy has a medical marijuana licence for up to 292 plants.”

The retiree was incensed his neighbour could be growing hundreds of cannabis plants in a quiet residential area. He said the grow-op has ruined his and his wife’s quality of life, and other neighbours are upset and uneasy. The man figured the presence of hundreds of cannabis plants makes the house next door a tempting target for theft or gang violence.

“They’re not afraid of the police, obviously,” he said.

The Free Press has agreed not to identify the man nor the street he lives on. He’s never witnessed anything illegal going on at the house next door, but he’s also worried the neighbouring grow-op could catch fire.

Most of all, he wants to know: how is it even possible to get a government licence to grow so many marijuana plants in a home?

“How many of these things have been given out?” he asked. “Who’s checking on this?

“What genius decided that somebody could have 200, or whatever, 300 plants for medical use? It makes no sense.”

Tens of thousands of Canadians are allowed to grow their own medical marijuana, or have someone grow it for them, under Health Canada’s authority.

The situation evolved from a complicated series of legal challenges, judicial rulings and government regulations that have tried to keep up. A 2000 Ontario Court of Appeal ruling upheld the principle that people in medical need should be able to access and possess cannabis. That led to the first regulations to allow home cultivation of medical marijuana, enacted under then-prime minister Jean Chrétien’s Liberal government in 2001.

Ottawa tried to do away with the program in 2013, when it passed new regulations with the goal of ending personal marijuana production and replacing it with government-licensed cannabis producers who would sell directly to medical users. (Those regulations were enacted under Stephen Harper’s Conservative government, which framed the issue as a matter of public health and safety. Ironically, the Conservatives’ move to turn medical cannabis into a regulated commercial industry helped lay the foundation for the legalization of recreational cannabis by Prime Minister Justin Trudeau’s Liberals this year.)

The Harper government failed to achieve its goal. A group of medical cannabis users successfully challenged the regulations in federal court, arguing the parallel moves to end home cultivation while restricting patients to buying cannabis only from corporations violated their Charter rights to “life, liberty and security of the person.”

The Harper Conservatives tried to get rid of the home cultivation program.
SEAN KILPATRICK / THE CANADIAN PRESS FILESThe Harper Conservatives tried to get rid of the home cultivation program.

Much of that case, Allard v. Canada, revolved around whether or not the government’s ban on personal cultivation was justified in light of what federal lawyers argued were the significant health and safety risks of marijuana grow-ops. The federal government and the plaintiffs marched out witnesses, including experts on mould, fire safety, crime, property values, home insurance, cannabis cultivation, and affordable access to medical cannabis.

Justice Michael Phelan was skeptical of some of the expert testimony on both sides, but ultimately agreed with the plaintiffs the new regulations would infringe on their Charter rights. “The evidence establishes that the great majority of patients were able to produce their own cannabis as medicine without any threat to their own health and safety or that of the public,” he wrote in a February 2016 ruling.

Following its loss in court, the federal government had to enact a third set of medical cannabis regulations, which would let registered medical cannabis users continue to cultivate. Those new regulations took effect in August 2016, combining the personal cultivation program with the government’s vision of regulated, commercial medical marijuana producers.

The fourth and latest set of government cannabis regulations, which took effect the day recreational cannabis was legalized Oct. 17, also keep personal cultivation of medical cannabis intact.

Under the regulations, a potential grower must get a doctor’s written authorization to use a certain amount of cannabis per day, and register with Health Canada as a medical cannabis user. After submitting a complex application, successful applicants will be allowed to grow a certain number of cannabis plants and store a fixed amount of dried marijuana at home.

The exact numbers depend on how much marijuana the patient’s doctor authorized per day, as well as whether the patient wants to grow indoors, outdoors, or both. For example, a patient authorized to use one gram per day — roughly the equivalent of three joints — could grow five plants indoors and store up to 225 grams of their harvest.

Health Canada data show there were 20,346 licences for personal medical cannabis cultivation in Canada as of June 2018, including 700 in Manitoba. Less common are licences that let someone grow on behalf of a registered user: there were 1,195 in June, with 25 in Manitoba. (All told, licences for personal medical cannabis production make up just a small fraction of the more than 330,000 medical cannabis registrations in Canada.)

Registered personal growers have to follow the production and storage limits on their licences and respect all relevant local laws and bylaws, a Health Canada spokeswoman wrote in a statement.

But it’s not Health Canada’s role to decide whether medical cannabis is an appropriate treatment, she said, nor to determine how much cannabis a patient should be allowed to use — that’s between them and their doctor.

Applicants for personal cannabis production have to let Health Canada know where they’re growing, sign a declaration that they’ll keep their cannabis secure, and can’t have been convicted of certain marijuana-related crimes in the previous decade. The regulator doesn’t tell personal growers how to grow marijuana, but provides them with recommended safety precautions.

Health Canada can revoke licences from growers who break the rules, and runs a 24/7 hotline for police to confirm the details of someone’s permit to grow or possess medical cannabis.

In answers to written questions, a Winnipeg Police Service spokeswoman wouldn’t confirm whether the house in question in the Maples is a Health Canada-registered site for personal medical cannabis production, citing privacy laws. When police are informed of a possible cannabis grow-op, she wrote, they first check with Health Canada to see whether the site is licensed.

“We can knock on the door and ask to inspect the site,” she said. Otherwise, “We need a warrant to get past the door.”

Checking a residence for building and fire code violations requires a different kind of search warrant, she said. “But going in with just this warrant won’t let us count the plants, so we have to also get a general warrant which allows us to do this.”

If there are more plants than a licence allows, she said, “We now have to get a search warrant under the Cannabis Act.”

Even that warrant would only allow police to seize any cannabis plants beyond the limit on the person’s licence, she wrote.

“So if they have a licence for 171 plants and we count 200, we are only seizing 29 plants and leaving all the equipment there after getting three separate judicial authorizations.”

Liberal MP Kevin Lamoureux represents the Maples riding, and has spoken with the retired Winnipeg police officer who’s concerned about the 292 cannabis plants reportedly being grown next door. That’s not the only residence in the area where cannabis is being legally grown, the MP said — he’s aware of at least one other, and he’s not happy about it.

“These are suburban homes, both located in the Maples, in communities in which there’s kids walking around, young kids,” Lamoureux said.

Liberal MP Kevin Lamoureux:'These are suburban homes, both located in the Maples, in communities in which there's kids walking around, young kids.'
SEAN KILPATRICK / THE CANADIAN PRESS FILESLiberal MP Kevin Lamoureux:’These are suburban homes, both located in the Maples, in communities in which there’s kids walking around, young kids.’

Pointing out home medical cannabis cultivation predates the current Liberal government, Lamoureux said he’s brought the issue to the attention of both Health Minister Ginette Petitpas Taylor and Bill Blair, the ex-Toronto police chief who served as the Liberals’ key political spokesman for cannabis legalization and is now minister of border security and organized crime reduction.

“I’ve had a commitment by both ministers that they are looking into it to explore what sort of options that we have,” he said.

“What I’ve clearly indicated to them is that it is absolutely unacceptable that we would be giving authority to an individual to grow literally hundreds of marijuana plants. In my personal opinion, it’s like a licence for a grow-op.”

Responsibility could lie with certain doctors who authorize patients to use unusually large amounts of medical marijuana, Lamoureux added, suggesting those unnamed physicians are abusing the system.

“These doctors, that are trying to give an impression that someone needs to have 200-plus plants in order to provide medical cannabis — I would really like to question them, why it is that they believe that that would be the case.”

If the 292 cannabis plants purportedly being grown at the house in Lamoureux’s riding are for the use of just one person, they would equate to a medical authorization for 60 grams of cannabis per day, according to Health Canada’s online calculator tool for personal medical cannabis growers.

Sixty grams of cannabis daily is more than the average medical authorization for cannabis, according to Dr. Shelley Turner.

Turner is the medical director of First Farmacy Medical, a cannabis-focused practice in Thunder Bay, Ont., with plans to next year open a second clinic in the resort town of Gimli, some 80 kilometres north of Winnipeg.

Dr. Shelley Turner, medical director of First Farmacy Medical: 'I've been asked to write scripts for 100 grams a day, which I absolutely refuse'
MIKAELA MACKENZIE / WINNIPEG FREE PRESS FILESDr. Shelley Turner, medical director of First Farmacy Medical: ‘I’ve been asked to write scripts for 100 grams a day, which I absolutely refuse’

“I’ve been asked to write scripts for 100 grams a day, which I absolutely refuse,” she said. “I think the max I’ve ever written is 10 grams per day.”

However, it’s possible a medical cannabis user could consume 60 grams per day, she said, citing complex factors such as the patient’s diagnosis, cannabis tolerance, and how it is consumed.

“Is that ingestion? Is that vaporized? Are they juicing it? Are they eating it raw? You’d really have to look at it case by case,” she said.

Turner estimates she’s authorized medical cannabis for roughly 4,000 patients since late 2013, but only about 20 of her patients are licensed for home cultivation. She prefers to start new patients off with cannabis from licensed producers, because “you know exactly what they’re getting.”

Still, home cultivation can be important for some patients, said Turner, especially considering the high cost of buying medical cannabis. Provincial health systems don’t cover the cost of medical marijuana, nor do the vast majority of workplace health benefit plans.

“I saw probably seven or eight people today alone, that said, ‘I wish I could take more but I can’t, because I can’t afford it,'” she said.

Asked about Lamoureux’s assertion a handful of unscrupulous physicians are authorizing patients to use huge amounts of cannabis, Turner agreed it’s possible.

“Is there a specific subset of patients that are going to see these physicians? Perhaps,” she said.

“And I know there’s been a few bad apples in the mix there,” she added, citing the case of Roman Chubaty, a Winnipeg physician who was formally censured by the College of Physicians and Surgeons of Manitoba in 2016 for his conduct in authorizing medical marijuana for patients.

In an email, College registrar Dr. Anna Ziomek said physicians don’t specifically authorize home cultivation, and that authorized medical cannabis patients apply to Health Canada for production licences on their own. The College’s medical marijuana bylaw requires Manitoba physicians to log all their authorizations of medical marijuana, and doctors aren’t required to authorize medical cannabis use if they don’t think it’s a good idea for their patient.

The issue of personal medical cannabis growing will almost certainly come under Ottawa’s microscope in the years to come.

The federal government has said it will review the entire medical cannabis regime within the next five years, and a review of the impacts of recreational cannabis legalization is due to begin in three years. By law, that review must include a study of “the impact of the cultivation of cannabis plants in a dwelling-house,” and result in a report that will be delivered to Parliament.

In the meantime, the 2016 federal court ruling still stands, and Canadians registered to use medical marijuana have the right to grow their own if they meet the government’s requirements.

In the Maples, a Winnipeg Free Press reporter visited the grow-op house on the quiet residential street. No smell was noticeable from outside the modest bungalow, and the driveway and walkway had been freshly shovelled. All the blinds were pulled down, and security cameras still kept watch over the exterior.

The reporter spoke briefly with a man who identified himself as a resident of the home, but not the owner. Aside from confirming the owner was growing marijuana inside the house, the man had little to say. Despite multiple attempts, the Free Press was unable to reach the property owner for comment.

The retiree who first contacted the Free Press maintains it makes no sense someone could grow hundreds of marijuana plants at home. He pointed out government-regulated, commercial cannabis production facilities are subject to strict regulations.

“The police know about these situations and the government knows about these situations, and my neighbours know what’s going on,” he said. “But other people don’t. And I think it makes the neighbourhood more dangerous than it was before, because of this locked-down house with cameras around it.”

He’s left his complaints in the hands of MP Kevin Lamoureux, but he recognizes any reform on the government’s part will likely take a long time.

“I hope the government can say that they’ve made a mistake, or someone’s made a mistake, in allowing this kind of situation to continue, and to exist in the first place.”

solomon.israel@freepress.mb.ca

Twitter: @sol_israel

Source: Canadians are allowed to grow their own medical cannabis, but at what point does it become illegal?

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