Manitoba group files appeal against cannabis home grow ban

| David Brown

The group challenging Manitoba’s ban on growing cannabis at home filed an appeal today against a recent court decision to uphold the ban.

In a ruling posted in October 2023, a Manitoba judge dismissed an application by a Winnipeg resident who was challenging the legality of Manitoba’s ban on people growing their own cannabis. 

The Manitoba law, which has been in place since 2018, was challenged by resident Jesse Lavoie, who argued the provincial ban was unconstitutional and an overreach of provincial authority. 

The provincial government argued that the ban on growing cannabis at home was within the province’s power in the name of protecting public health and safety. 

Although the ruling was somewhat sympathetic to Lavoie’s lawyer’s arguments, Court of Queen’s Bench Justice Shauna McCarthy sided with the arguments made by the Government of Manitoba, saying that the penalties, while strict, were not overly punitive or a violation of the balance between provincial and federal jurisdiction. The province of Manitoba, she ruled, has the right to ban growing cannabis at home, even if federal law allows people to grow up to four plants.  

One of Lavoie’s lawyers in the case, Kirk Tousaw, told StratCann they planned to appeal the ruling. That appeal was filed on March 1, 2024.

The law was put in place by the Progressive Conservative Party of Manitoba, which had been in power since 2016. The Manitoba NDP, which formed government after an election in 2023, had previously said they do not support the ban. Lavoie, who operates the company TobaGrown, which has spearheaded the effort to challenge the ban, says he hopes the province will hold to that commitment. 

“We urge the NDP government to change the law now and to not spend anymore taxpayer dollars defending the PC’s bad law.”

Jesse Lavoie, TobaGrown

“TobaGrown has been at the forefront of advocating for a repeal of the ban on home cannabis gardens since day one,” Lavoie tells StratCann. “We have worked hard in the courts to challenge the constitutionality of the ban while also remaining open to discussions about a political solution. 

“Since the NDP was elected in October 2023, we have consistently communicated that our preference would be to see the law changed by the government, not the courts. We very much hope that the NDP does the right thing for the people of Manitoba and repeals this prohibition.

“But we continue to also believe that the ban is an improper use of the criminal law power by the provincial government and that it is unconstitutional. And that means we remain committed to appealing the trial court’s decision to the Manitoba Court of Appeal. That hearing is expected to be this spring, and we are therefore filing our Appeal Facta to ensure that Manitobans have the same right to grow four plants at home that all Canadians outside Quebec currently enjoy.

“We urge the NDP government to change the law now and to not spend anymore taxpayer dollars defending the PC’s bad law.”

Several requests for comment on the party’s stance on home grow bans were unanswered, but sources close to the file tell StratCann that an announcement may come from the province in the coming weeks. 

The House is scheduled to have its first sitting in 2024 on March 6.

In April of this year, the Supreme Court of Canada upheld a similar ban on home-grown cannabis in Quebec, ruling that the province has the authority to enforce such a ban, even in the face of federal rules allowing up to four plants per household. 

Quebec and Manitoba were the only two provinces to challenge that authority, banning home growing entirely, as did the territory of Nunavut. While Quebec’s rules implement fines for those found growing cannabis, Manitoba’s ban creates criminal penalties and a $2,542 fine for growing non-medical cannabis in a residence, as well as up to a year in prison and forfeiture of personal property.

In their conclusion, the judge wrote, in part: “The applicant has failed to meet his onus of proving that section 101.15 is in pith and substance criminal law, rather than an area under provincial jurisdiction. Rather, I have found that the pith in substance, or the dominant purpose, of the prohibition against home cultivation in Manitoba, is to support the provincial government scheme enacted to control and regulate the purchase, distribution, and sale of cannabis in a manner which is consistent with the public interest.”

The province’s cannabis laws, including the ban on growing cannabis at home, were put in place by the previous Conservative government in Manitoba. The Manitoba NDP formed government following an election on October 3. 

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