Alberta judge determines cannabis grower's rights were violated, but refuses to stay charges

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Shaun Charles Howell’s unlicensed Innisfail cannabis grow was busted by the RCMP in March 2017. He was charged with unlawfully producing cannabis and possession of over three kilograms of cannabis for the purpose of trafficking.

In addition to himself, Howell was providing cannabis to a few patients, including a disabled homeless man to whom he provided cannabis products at no cost and his daughter who suffers from epilepsy.

The judge agreed that the man’s constitutional rights had been violated under previous, pre-legalization drug legislation. But his bid to have the charges stayed was denied.

Howell’s entire yield was seized, including 739 cannabis plants, 54 kilograms of freshly-harvested weed, and just under three kilograms of dried flower, as well as a variety of equipment for cultivation and manufacturing extractions and concentrates.

Howell filed a constitutional challenge in 2019 over the seizure of his plants and equipment, insisting that the restriction on concentrates under the  Access to Cannabis for Medical Purposes Act (ACMPR), which predates federal legalization, was incongruent with the Canadian Charter of Rights and Freedoms.

He noted that the ACMPR did not provide reasonable access to necessary medication and thus forcing patients to undergo financial hardship, risk criminal prosecution, or experience further health issues as a result of limited availability — and also robbed patients of their right to make their own choices regarding medical treatment options.

Although Red Deer Court of Queen’s Bench Justice Robert Graesser agreed that Howell’s rights were violated due to the constraints on concentrates under the ACMPR, the judge refused to stay the charges.

Justice Graesser acknowledged that Howell had attempted to operate legitimately by trying to obtain a grow licence several times and had a pending application at the time of his arrest. He believed Howell had made an attempt “in good faith” to “satisfy the onerous Health Canada requirements” in place at the time.

Graessner also noted that Howell had not ultimately acquired the necessary licences, deciding that the public interest outweighed the benefits of staying Howell’s charges.

Howell will return to court in October 2020.

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