Court challenge to Manitoba's homegrown cannabis ban argues province going against Ottawa

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 saidlaws which are tougher provincially than federallyalready exist in some areas, such as imposing penalties for impaired drivingbeginning with a reading of.05, rather than the.08 prescribed by Ottawa.

As such, Connertold Manitoba's Court of Queen's Bench on Monday, "it shouldn't come as a surprisethat 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 courtfor banning home growth operations.

There is precedentfor the case. Ajudge 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 ofLavoie'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 intentionof preventing drivers from drinking too much, he said.

But Tousawreasonedthe two governments are taking different positions onat-home cannabis production.

The federal Cannabis Act, which legalized cannabis in 2018, statesup to four marijuana plants can be grown ata residence at one time. It gives individual provinces the opportunity to impose further restrictions, butTousawarguesit 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 acrossjurisdictions 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 cooperateand 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 aManitoban can follow both lawsby adhering to the tougher provincial restriction.

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

Under that logic, Tousawcontends, Manitoba could prohibit access to legal abortions, and people could comply with that new prohibitionby simply not seeking anabortion.

"Withthe greatest respect, this turns the conceptof 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 inprovinces like Nova Scotia that banned abortions inclinics outside hospitals.

He said Manitoba is only preventing the production of cannabis at residential homesto ensure nothing underminesthe province's chosen retailframework of sellingfederally-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 regimeto ensure a safe supply."

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

The lawyer added thatManitoba's government has beendriven to protect the health and safety of consumers, including preventingyouth from accessing suchproducts. He said the only supply that has the confidence of the provincial legislature at the momentis federally-regulated cannabis.

After the hearing,Lavoiesaid 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 tofund his legal fight.

Court of Queen's Bench Justice ShaunaMcCarthy'sruling is expected in the coming months.