i like how the judge didn't like any of the defendants evidence
[239] With respect to health and safety risks, the Defendant submits that the witnesses provided cogent evidence to illustrate the risks associated with cannabis growing operations.
[240] I find that the evidence was insufficient and largely did not distinguish between legal cannabis growing operations under the MMAR and illegal growing operations. Additionally, there was limited, if any, expert evidence that convincingly asserted that these risks exist across the country and to a magnitude that mandates state interference.
[241] For fire risk as noted earlier, the Defendant relies on the expert evidence of Len Garis, the Fire Chief of Surrey, British Columbia. This evidence is unreliable for many reasons. Most importantly, this witness was not credible and was biased. He was an active public advocate against cannabis cultivation. His Report provided no analysis or context for the Court to accurately judge the purported fire risks. Instead, it was painfully obvious that his entire study was motivated to support a cause – his own personal view against residential growing operations.
[242] During Mr. Garis’ testimony, it was acknowledged that the risk of kitchen fires is higher than the risk of fires caused by residential cannabis cultivation (the Fire Commissioner Office fire statistics did not include a single fire at a legal medical cannabis production site between
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2001 and 2012). He provided very little information on legal cultivation operations and focused his entire evidence on Surrey, British Columbia. Finally, he admitted that if a certified electrician carried out the modifications necessary at a production site, the alleged risk can be addressed.
[243] Although the Defendant relies on Ms. Ritchot’s evidence of other cities, who conducted similar but vastly smaller studies, no context is provided for the Court to adequately assess the studies and thus little weight is given to this evidence.
[244] The Plaintiffs’ rebuttal witness, Mr. Boileau, provided useful evidence that contextualized this risk under the MMAR regime. If in compliance with the Safety Standards Act, electrical installations at legal indoor marihuana grow facilities by MMAR license holders are just as safe as any other electrical installation at any other type of facility.
[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.
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[246] On risk arising from the monetary value of marihuana, there was no evidence of actual theft or related risk. The Defendant’s argument was speculative at best, relying on the street value of marihuana at $5-$10 per gram.
[247] Regarding the potential criminal abuses of MMAR license holders, the evidence did not establish that this was a warranted risk. Importantly, I do not rely on any evidence by Corporal Holmquist as his examples were exposed under cross-examination as incomplete. The limited incidents listed in his Report cannot support his conclusions as they are not fully researched, lack important details and are not contextually analyzed. His conclusions are result-oriented and exhibit a biased analysis.
[248] The Defendant also argues that the restriction is consistent with international medical marihuana regimes. Concerns about diversion to the illegal market led to the development of the specific regimes in different countries. I note that the evidence at trial confirmed that each country was continuously changing their structures and administration to address the needs of patients requiring medical marihuana while the drug remains a banned substance federally.
[249] Canada, like some of the countries referred to in evidence, is a signatory to a number of international drug control conventions (see Hitzig, at paras 32 and 33). However it is not particularly helpful for this Court to focus on the systems in place in other countries as the policies and legal structures in place are vastly different region by region. Importantly, there was limited evidence of the concerns of non-commercial publicly regulated cannabis cultivation. The issues in this case are governed by Charter obligations, not international ones.
