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The Crown's argument was that Parker did not include the right to cultivate. Even though the judge had ruled, “...if the cultivation provision had been before this court, I would hold that it too infringes Parker’s s. 7 rights,” the rest of the quotation continues: “Since there is no legal source of supply of marihuana, Parker’s only practical way of obtaining marihuana for his medical needs is to cultivate.” The Crown argued that there is a legal supply of cannabis and it is through the LPs via the MMPR. The health and safety risks were more manageable when the number of growers was limited from 36,000 to a smaller handful of commercial producers. It's not arbitrary since those were the objectives. And it wasn't broad, went the argument, since all patients were getting equal access through LPs and the public is safe from the MMAR gardens.
The Crown accused Conroy and team of interpreting the law too narrowly. Parker was a right to reasonable access, not a right to grow. No court of law had addressed personal production or linked reasonable access to personal production. The courts have required that Canadians have reasonable access to cannabis for medicinal purposes, and in providing that access the government needed to take individual and public health and safety risks into account.
“Is it appropriate to set up a new regime on the basis of one locale?” Justice Phelan asked. He was speaking to the Surrey statistics on illegal grow-opts. Hardly an accurate portrait of Canada's 36,000 legal medical gardens. There was no evidence for public or individual health and safety risks from medical gardens.
But the Crown submitted that the risks were inherent, the extent is greater in BC because there are more (some 50% of Canada's legal cannabis farmers) but that didn't mean there was no justification for uniform legislation that blanketed the country. After all, went the Crown, there is an “inherent risk” in cannabis cultivation that only the LPs are equipped enough to mitigate.
So in Saskatchewan, asked Justice Phelan, it was the same level of risk of mold even though the environment in British Columbia is more likely to increase that probability? We have to accept that Len Garis' problems were the same more or less across the country?
“Yes,” replied the Crown, “the risk is inherent.”
The risk is constant? It has always existed and always will?
“Yes.”
“Why would have the prior regulations been okay if these risks are inherent?” Justice Phelan asked.
There was a moment of silence before the Crown's lawyer pulled himself together. “What has occurred here,” is that the sheer number of medical cannabis gardens grew exponentially. The problems surfaced as the MMAR developed and Health Canada started more complaints. The risks were always there; they just weren't as noticeable at first. What wasn't mentioned was that these complaints were often associated with smell, which Health Canada passed off onto the municipalities. There was no evidence of risks of fire, mold or organized crime.
However these “inherent risks” were the crux of the Crown's argument. And even now after all this time, it seems inconceivable that the government would push ahead with these claims when they have no concrete evidence to support it. Thus the analysis moved to financial. Earlier in the day, the Crown had said Conroy and company had mixed up the definitions of accessibility and affordability. Didn't the Charter protect economic interests? No, replied the Crown. Not Section 7.
The plaintiffs weren't poor. They all had sufficient income to buy from an LP, said the Crown, but their personal preference is to the black market or growing one's own. Removing the MMAR wasn't going to cause an accessibility issue; it wasn't enough provoke a constitutional case. The MMAR was being replaced by the MMPR. Patients could still access dried cannabis if they wanted to. Removing gardens wouldn't impoverish patients. The Crown went ahead and proved this through the muddled language of mainstream economics and persistence that the Canadian average daily dose of 18 grams per day should be lowered (via coercive restrictions on supply) to the international standard of 1-3 grams per day. By claiming to have determined an objective money-cost to what Mr. Neil Allard could be doing instead of growing cannabis, the Crown “proved” how removing gardens and forcing patients onto LPs would not impede accessibility.
But we only have to look at the fallacy implicit in the Crown's premise to see how such a conclusion is undeniably false. The fact that Mr. Allard has chosen to grow cannabis instead of buying it from a third-party indicates that that option is his most highly valued preference. What Mr. Allard could be doing instead of growing cannabis has no bearing on economics whatsoever. One could ask why Mr. Allard chose cultivation over, say, reading a book. But that would be psychology, not economics. In fact, to arrive at the conclusions the Crown did – that the plaintiffs could afford LPs and the destruction of their gardens would be a financial advantage – they had to commit psychological hedonism.
In purely economic terms, Mr. Allard acts to increase his “utility” or “welfare”. But those terms are not ends. Once the Crown started speculating on what Mr. Allard could be doing instead of what he is doing, they engaged in a psychological hypothesis about how he was spending his time. It did not flow logically from the concept of purposeful action and had no place in the deductive science of economics. The Crown criticized Conroy and company for not having an economist as a witness. But the Crown's economist suffered from this fallacy of calculating opportunity cost by imaging what someone could be doing, instead of deducing logical constructs from what they are doing. The latter is economics; the former is not.
Nevertheless, this was only one aspect of the Crown's financial argument. Riding on the false success of separating affordability from accessibility, the Crown moved ahead into the next logical conclusion: positive rights. A right to grow essentially meant a right to take money from taxpayers. Although the language wasn't so blunt, this was the conclusion of forcing Health Canada inspections on 37,000 gardens instead of 17 LPs.
The plaintiffs demand was, “a plea for de facto subsidization of personal production through the creation of a home inspection regime.” The lawyer brought up Brown v. BC and the failure of the BC government to cover HIV costs for a patient who couldn't afford it. That didn't violate Section 7 rights because taxpayers don't have an obligation to pay for other peoples’ medication. The same could be said here, argued the Crown. Even though the patients aren't asking for the government to produce cannabis, an inspection regime of private gardens would be required. The whole point of the transition from MMAR to MMPR was to save money. Just as in Brown, said the Crown, medication/gardens amounted to a tax on everyone. There was no economic deprivation when patients could reduce their living standards and buy from LPs.
The Crown went on talking about how the few inspections Health Canada did do cost $8000 per license. The Crown criticized Conroy's answer that municipalities could do inspections. That was no answer, the Crown argued correctly, because at the end of the day taxpayers are still footing the bill. The Crown also criticized the idea of passing the cost onto the growers themselves. Increasing the cost of home production when they apparently can't even afford $5-a-gram? The Crown's argument looked tight. It made economic sense to limit the number of producers. And it wasn't just cost saving, it was also a Section 8 privacy issue. It's harder to do residential inspections than commercial. That having a right to a garden came down to having a “positive right” seemed impenetrable. Conroy couldn't object and defend himself. The plaintiffs had conceded that there was no right to cultivate; it was just implicit in the Parker ruling. “It's hard to prove a negative,” the Crown said. R. v. McDermott ruled that administrative inconvenience or a wish to be free of regulations was not a Charter right. But from where I was sitting, it seemed that the Crown had contradicted itself. They said you couldn't prove a negative liberty to gardens, yet they criticized – what amounts to – the right to liberty on “positive right” grounds. But you can't have your cake and eat it too, unless they opposed liberty all around. The Crown wanted to prove there was no right to be free from certain provisions of CDSA just because one was a medical patient. One had to go through the proper regulations. But whether these regulations were MMAR or MMPR, a positive right was invoked. A limitation or destruction of these regulations would subject those who fell outside the cracks to the enforcement of the CDSA. Therefore, reasonable access would be threatened. Unless of course, reasonable access meant exemption from the CDSA. Reasonable access could mean allowing markets to form to provide quality medicine. In fact, Vancouver's dispensary and compassion club market has provided reasonable access to patients in ways no government model could plan.
But this in essence is what the government has claimed to have done through the MMPR. “It's a free market system,” the Crown's lawyer claimed. But the regulatory regime of the MMPR cannot be a free market since it is by definition a government central plan. Even Justice Phelan called it, “a quasi-regulated market.” A free market would be giving patients complete exemptions from the provisions of the CDSA relating to the production, possession and distribution of cannabis for medical purposes. And indeed, this is what John Conroy asked for in the remedy.
And what about regulation? It was a valid question; the regulatory cost under the MMPR was lower than the “exponential” costs of the MMAR. And the “positive right” to a government regulation was diminished under the MMPR since the LPs could technically still exist even if the MMPR was changed or even abolished. But the idea that gardens were risks to begin with rested on the flawed assumption that cannabis cultivation itself poses an inherent risk. Scott Wilkins was an expert witness for the plaintiffs. An insurance broker who insures medical gardens, his testimony is crucial in realizing how gardens are regulated in a free society. By paying annual premium in exchange for certainty (i.e. no fire, theft, etc.) patients shared the risk with the insurance broker. The broker accepted the patient's premiums in exchange for a conditional payout, if it were to ever occur. That is how a free market regulates medical gardens. It is a place where risk becomes another word for opportunity. Where individuals find value for each other and coordinate through market pricing. The state itself is arbitrary. The state sees risk as an opportunity to impose static plans, rules and bureaucracy. It is slow to adapt and quick to coerce.
Of course, none of this was brought up by Justice Phelan. The Crown continued it's full day of conjecture and character assassination. In the end, they attempted to switch the burden of proof to the plaintiff. Even the Justice acknowledged this. It was an attempt to use the plaintiff's evidence against them. While the praise of the MMPR made sense in one degree, the “inherent risks” that prevented at least a grandfathering in of the MMAR gardens was still completely arbitrary. They have no facts on fire, mold, theft and organized crime. And at the end of the day, that was the crux of their argument. “Inherent risks.”
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