Other provinces rightly understood they could regulate home cannabis production, but not prohibit: applicant

A lawyer for the Manitoba government says the province is well within its rights to ban the production of homegrown cannabis, even though federal legislation permits it.

Michael Conner said laws which are tougher provincially than federally already exist in some areas, such as imposing penalties for impaired driving beginning with a reading of .05, rather than the .08 prescribed by Ottawa. 

As such, Conner told Manitoba's Court of Queen's Bench on Monday, "it shouldn't come as a surprise that some provinces might have chosen to move more cautiously" around a drug that until recently was illegal.

Toba Grown, a group founded by cannabis advocate Jesse Lavoie, has taken the province to court for banning home growth operations.  

There is precedent for the case. A judge found the same ban in Quebec was unconstitutional, but the appeal court disagreed. The case will be heard by the Supreme Court of Canada.

Manitoba and Quebec are the only provinces to forbid the cultivation of cannabis at home. Home production of recreational cannabis results in a $2,542 fine in Manitoba.

Province contravenes Cannabis Act: appellant 

Outside court, one of Lavoie's lawyers, Kirk Tousaw, dismissed the government's analogy around differing impaired driving rules.

In that case, both the federal and provincial governments have the same intention of preventing drivers from drinking too much, he said.

But Tousaw reasoned the two governments are taking different positions on at-home cannabis production.

The federal Cannabis Act, which legalized cannabis in 2018, states up to four marijuana plants can be grown at a residence at one time. It gives individual provinces the opportunity to impose further restrictions, but Tousaw argues it doesn't give those jurisdictions the permission to implement a ban.​

Bill Blair, the federal minister who was in charge of cannabis legalization, told the House of Commons in 2018 that Ottawa would not allow for prohibition "when the evidence is overwhelming that prohibition has failings." 

Tousaw argued Manitoba's position is in direct contravention of the federal Cannabis Act, which permitted grow-your-own-cannabis operations across the country, barring some differences across jurisdictions but no outright prohibitions.

"Other provinces understood these comments as invitations to regulate time, place and manner, and many have done so," he told the court.

"By imposing the absolute prohibition on residential cultivation, Manitoba exceeded the bounds of the federal government's invitation to cooperate and improperly undermined the purposes of the Cannabis Act."

The government's lawyers, however, didn't agree that the federal act and the provincial regulation are in conflict. Conner said a Manitoban can follow both laws by adhering to the tougher provincial restriction.

"Both acts share complementary goals of providing a safe supply of cannabis and preventing the diversion to the illicit market," Conner said.

Under that logic, Tousaw contends, Manitoba could prohibit access to legal abortions, and people could comply with that new prohibition by simply not seeking an abortion.

"With the greatest respect, this turns the concept of the criminal law on its head … and taken to its logical conclusion, it means Manitoba can ban any conduct it wishes," Tousaw said.

Home sale would undermine retail regime, Manitoba says

In response, Conner said in his submission Manitoba is in no way treating cannabis production as the "public evil" that abortion access was treated decades ago in provinces like Nova Scotia that banned abortions in clinics outside hospitals.

He said Manitoba is only preventing the production of cannabis at residential homes to ensure nothing undermines the province's chosen retail framework of selling federally-regulated cannabis at licensed retailers.

"It doesn't treat growing cannabis as a socially undesirable or immoral issue. It's a restriction in one location. You can't grow cannabis in a home because that would undermine the monopoly supply that's contemplated in the regime to ensure a safe supply."

The province also finds that home production could contribute to the illicit market, Conner said, which is at odds with the opinion of the federal government.

The lawyer added that Manitoba's government has been driven to protect the health and safety of consumers, including preventing youth from accessing such products. He said the only supply that has the confidence of the provincial legislature at the moment is federally-regulated cannabis.

After the hearing, Lavoie said he was happy to finally have his day in court.

He said his Toba Grown campaign has been funded by himself and community donations. He recently started selling joints at several cannabis retailers, with most of the revenue going to fund his legal fight.

Court of Queen's Bench Justice Shauna McCarthy's ruling is expected in the coming months.