Here's a response from lawyer Kirk Tousaw about the Phelan case...
Many people have questions about the Allard v. Canada Federal Court Trial Division decision coming down Wednesday February 24 at 9am PST. I'll try to touch on some of the more common ones I've seen or been asked today:
1. This is a trial court decision with national effect. If we lose we will appeal to the Federal Court of Appeal and we will seek to continue the protection of the current injunction and/or expand upon it. I don't know if the Crown will appeal if we win. I expect it will and that this fight will continue no matter what the decision is.
2. It is impossible to tell anyone what the impact of the decision will be. In the first place, we don't know if it will be a total win, partial win, partial loss or total loss. We have no ability to impose the remedy we want - we can only ask for relief and the Judge decides what to do.
3. If we lose the Crown argued that the injunction should immediately end and all patients should immediately stop producing medicine or be subject to arrest. We argued that even in a loss situation, the Judge needed to give people time to shut down their gardens and not turn them into criminals overnight. We don't know what the Judge will do.
4. If we win, we don't know what the win will look like. We asked for several possible remedies but the Judge can do what he feels is best according to the Charter. That could include making the current injunction permanent, expanding it, declaring the CDSA invalid and a whole host of other options. It could enable address changes or it may not. He could just declare it unconstitutional to criminalize personal/caregiver medical production, suspend the declaration for 6 months or a year and send it to the government for a response. Any win is likely to include, at least, extending the current injunction because it would be odd to find in favor of a Charter right yet end the injunction that protects patients.
