Manitoba’s Home Cultivation Ban Receives Judicial Review

Canada was the first G-7 nation to legalize cannabis for adult use. Only one other country, Uruguay, legalized cannabis for adult use before Canada made the public policy shift in late 2018.

One of the components of Canada’s legalization model was home cultivation, with adult households permitted to cultivate up to 4 plants according to the new federal law. Unfortunately, two provinces quickly moved to ban home cultivation – Manitoba and Quebec.

Quebec’s home cultivation ban was already challenged in court, with the first judge determining that home cultivation bans were unconstitutional. That judge’s decision was overturned upon appeal, and now the issue is waiting to be reviewed by Canada’s Supreme Court.

Meanwhile, a court challenge was being pursued in Manitoba as well, and that challenge recently received its day in court. The government’s argument essentially involves the position that provinces can be more restrictive, but not less restrictive, than federal law when it comes to home cultivation.

The argument made by home cultivation advocates is that while provinces can put restrictions in place, they cannot outright ban home cultivation. A similar argument was made in the Quebec home cultivation case. Below is more information about the Manitoba case, via excerpts from CBC:

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 across jurisdictions 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 cooperate and improperly undermined the purposes of the Cannabis Act.”

A ruling in the Manitoba case is expected to take weeks or even months to occur. Even then, regardless of the outcome, it’s likely that the case will eventually make its way to Canada’s Supreme Court, just as the case in Quebec has done.

I would personally expect Canada’s top court to side with the arguments being made by home cultivation advocates, including the arguments made by attorney Kirk Tousaw. However, only time will tell how it all shakes out.