From the judgement itself:
The Bloom Box is an example of a self-contained hydroponic grow box that can be used to
safely and inexpensively grow cannabis without odour and does not use excessive amounts of
power. It costs $3,300 plus tax. I find the purpose of this evidence was to illustrate that
marihuana can be cultivated effectively, safely and cheaply without massive investment or the
measures necessary to address the hazards associated with large growing operations.
I agree that the Plaintiffs have, on a balance of probabilities, demonstrated that cannabis
can be produced safely and securely with limited risk to public safety and consistently with the
promotion of public health. I again emphasize that the object of the restriction is not to eliminate
the risk to health and safety but to reduce it, and on that conception, there are very simple
measures that can be taken to minimally impact the section 7 interests.
[283] Accepting that fire, mould, diversion, theft and violence are risks that inherently exist to a
certain degree - although I note that these risks were not detailed - this significant restriction
punishes those who are able to safely produce by abiding with local laws and taking simple
precautions to reduce such risk. A complete restriction is not minimal impairment. As mentioned
above, the mould and fire risks are addressed by complying with the Safety Standards Act and
installing proper ventilation systems. Further, as demonstrated by the Plaintiffs, a security system
reduces risk of theft and violence.
Regarding 150g limit, that was NOT found unconstitutional:
[287] I agree with the Defendant, in the section 7 analysis, that the burden is on the Plaintiffs to
establish that the 150 gram possession limit impacts them in a significant way. Although the
Plaintiffs may have to purchase their marihuana more frequently and restrict the number of days
they travel or transport the drug because of this restriction, the cap is not overbroad or grossly
disproportionate because it bears a connection to the objective – it reduces the implied risk of
theft, violence and diversion for which there has been no substantial or persuasive evidence.
[288] Overall, this restriction is significantly different than the restriction on cultivation as the
cultivation restriction is a complete ban without minimal impairment that affects individuals
adversely to the legislation’s objective. The possession cap still allows one to possess more than
their necessary amount of marihuana. There is nothing stopping Parliament from legislating
cultivation in a similar way that ensures that significant measures are taken to reduce risk, such
as mandatory installation of security or ventilation systems (assuming that these measures are
constitutionally sound).
[245] For the specific health issue of toxic mould, the Defendant relied on the expert evidence
of Dr. Miller. Dr. Miller noted that each marihuana plant added as much moisture to a house as
approximately seven to ten houseplants. He specifically expressed concern with growing in a
multi-unit residential building. The Plaintiffs’ witnesses, Mr. Schut, Mr. Colasanti and Mr. Nash,
stated that proper steps must be taken to remove the excess moisture. I find that although mould
appears to be a valid concern, the evidence demonstrates that the concern is extinguished with a
proper ventilation system.
So essentially Phelan acknowledges the risks, but agrees they can be mitigated with 'proper' measures, so the question is how the government defines proper. A complete restriction is not justified, but 'proper' / 'reasonable' is. Is it reasonable to be forced to let city / fire inspectors come in without justification? That remains to be seen, both in the govt's response and any future court litigation. Your Charter rights are not unlimited (hence the whole point of s.1).
Also with regard to 150g, although Phelan has blown away the whole MMPR, the govt is not required to up the limit over 150g. This is a good example of Charter rights not being unlimited, you have a 'right' to mobility across the country, but that does not work out to you can carry unlimited amounts of mmj.
