Team fighting Manitoba’s home grow ban are back in court in September

| David Brown

The group challenging Manitoba’s ban on home-grown cannabis will head back to court in September to make new arguments for why the provincial ban is unconstitutional. 

Jesse Lavoie, who has been leading the charge against the provincial ban through his organization TobaGrown, says he and his legal team are filing a brief on July 21, with a scheduled court date of Friday, September 8.

Lavoie and his two lawyers, Kirk Tousaw and Jack Lloyd, will be arguing that the recent Supreme Court ruling that upheld Quebec’s ban on growing cannabis at home does not create a precedent to be followed in Manitoba.

While Quebec’s law banning home-grown weed is based on civil fines, Manitoba’s is based on criminal penalty, something Tousaw says is not in the purview of the provincial government. 

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 in Manitoba

The province’s ban does not extend to those authorized to grow cannabis for medical purposes, who have been protected by federal court.

“The argument being advanced this September in Manitoba is that the decision of the Supreme Court of Canada in the Murray-Hall case is not binding authority,” explains Tousaw. “This is because that decision was based on Québec’s very specific provincial legislative scheme, which includes the creation of a state monopoly—and which does not, unlike Manitoba, penalize home growing with the potential of up to a $100,000 fine and one year in prison. We say that Manitoba has improperly exercised the criminal law power in a way that is quite different from what Quebec did.”

“Ultimately, issues like this are best resolved in the legislature, so long as the legislature does not overstep its constitutional bounds,” he continues. “Irrespective of the outcome of the court case, it would be best for the citizens of Manitoba if the legislature simply allowed Manitobans to grow their four plants like every other Province except Quebec does.”

In the Quebec case, the provincial government had successfully argued in a lower court that they had the right to ban growing cannabis at home entirely, and were doing so to protect young people. The Supreme Court then dismissed an appeal of that ruling, concluding that the provincial government’s ban on growing cannabis at home was not in conflict with the federal law allowing Canadians to grow up to four plants at home.

Federal regulations allow Canadians to grow up to four cannabis plants per home. Provinces are allowed to place restrictions on that allowance, such as limiting the number of plants and/or requiring them to be grown in a secure area or out of view of the public. 

In developing the Cannabis Act and Regulations, the federal government argued that limiting the number of cannabis plants to zero or banning them outright would be out of the scope of their powers. 

This is similar to the federal age limit of 18 for access to alcohol, but provinces can raise this amount. All provinces and territories in Canada except Alberta and Quebec have established 19 as the age of access for cannabis. Alberta’s is 18, and Quebec’s is 21.

Lavoie, who launched his challenge of provincial law in 2020, says he’s frustrated that the current government continues to maintain the ban on Mantiobans’ ability to grow a few cannabis plants at home.

“This lawsuit has been going on for three years now, and it’s very disappointing to witness our opponents, the Elected Government, pushing for a lazy victory with a lack of their own evidence,” says Lavoie. “Despite Quebec’s ruling being based on protecting a Cannabis monopoly that doesn’t exist in Manitoba, our Opponents’ lead argument has been “We can because Quebec can”. Our legal team has spent countless hours preparing for this September 8 legal showdown, and I’m confident that we will prevail in this case.”

Jack Lloyd, another lawyer working with TobaGrown on the case, who also worked on the challenge in Quebec, filed by Janick Murray-Hall, agrees that the Quebec case does not, in his estimation, provide cover for Mantioba’s ban. 

“The situation is significantly different in Manitoba, which means that in our view, Manitoba’s legislation cannot escape judicial scrutiny on the back of the SCC’s ruling in Murray Hall.”

The Manitoba government will have until August 18 to file their response. The two groups are scheduled to meet in court on September 8. TobaGrown says it has received permits to have over 1,000 people on the front steps of the Manitoba Legislative building from 8:30 a.m. to 9:30 a.m. on September 8, 2023, before the team heads to court at 10:00 a.m.

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