Cannabis advocate urges Manitoba NDP to change rules as group appeals ban on homegrown plants

A cannabis advocacy organization is appealing a court decision that upheld a provincial ban on homegrown marijuana, saying the law infringes on federal jurisdiction and is unconstitutional.

Last October, a Manitoba Court of King's ruled the province was within its rights to impose the regulation.

While 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 weeks ahead of legalization in 2018, the then Progressive Conservative government in Manitoba introduced a ban on growing pot at home under the province's Liquor, Gaming and Cannabis Control Act, introducing a $2,542 fine for doing so.

The not-for-profit organization TobaGrown — which provides some cannabis products sold at Manitoba's dispensaries — challenged that ban in its August 2020 court case, arguing that the federal Cannabis Act doesn't give provinces and territories the permission to implement a ban, and that the existing regulation is overly punitive.

They argued the ban was an "attempt to re-criminalize home cultivation" and the regulation veered into criminal law.

Justice Shauna McCarthy disagreed, calling the provincial regulation "a means of regulation and controlling access to cannabis in the interest of the public."

In its appeal, TobaGrown said the decision should be reversed, arguing the King's Bench judge made a legal error in that assessment.

Jesse Lavoie, TobaGrown's founder, said McCarthy relied heavily on a Quebec Supreme Court decision last April that upheld a ban on homegrown production in that province.

Manitoba and Quebec were the only provinces to introduce such bans in 2018.

"In Quebec, they control all the distribution, all the stores, so the Supreme Court said in order to defend that monopoly, you can make this ban," said Lavoie. 

"Here, there's no monopoly. It's all private and public companies who are, you know, trying to make their way in the industry here. And it's criminalized here.… Very different than defending a monopoly."

Lavoie previously told CBC News TobaGrown was fighting an "uphill battle" trying to overturn the ban after the Quebec ruling.

He said with the appeal, he's now fighting an "up-mountain battle."

"We're definitely in the underdog position for sure, but we still are clinging to our case and our lawyers are very confident," he said.

"We've invested $135,000 mostly personal funds there. I gain nothing from walking away. We gain a lot if we keep pushing, and you know, pushing for that promise that was made for us as well."

Group calls on premier to drop ban

Before being elected, Premier Wab Kinew voiced opposition to the province's cannabis rules.

In a video from 2021, Kinew can be seen signing TobaGrown's banner, wishing the group good luck with their case, which was first brought before courts in late 2020.

The NDP government, elected last October, told CBC News Friday it won't comment on ongoing litigation. But Lavoie said he's heard promises over the years the party was supportive of dropping the ban.

He said he's previously told the Kinew government he would drop the lawsuit in exchange for a mutually agreed timeline to change the provincial rules.

"We have no guarantees, so if we were to pull our lawsuit back now, there's no guarantee that the ban would change. Our only option currently is to continue suing the government," Lavoie said.