Health Canada and Medical Marijuana Laws

Before the Controlled Drugs and Substances Act came into effect in 1996 there were several examples of lower court decisions that recognized the use of cannabis as medicine.  The medical necessity argument is available in Canada because the 1961 U.N. Single Convention on Narcotics allows for the medicinal use of illegal drugs and their derivatives.  In 1999, Jim Wakeford, a person with AIDS, was granted the first Exemption #56 from the CDSA to use cannabis as medicine by a Superior Court judge in Ontario.  Others began receiving these exemptions from court or the Minister responsible for Health Canada. 

Then on July 31, 2000, lawyer Alan Young was successful in another case, this time with Terry Parker, who suffers from epilepsy.  Alan used convincing medical evidence from Terry’s case to prove that the government had to not only allow the use of cannabis as medicine, but must also provide access to the plant.  The Court of Appeal of Ontario gave Health Canada one year to establish a plan.  The original Medical Marijuana Access Regulations that gave legal permits to possess and grow cannabis were long, complicated documents which required doctors to state, amongst other things, that every other possible medication and treatment had been tried on the patient before recommending cannabis.  Health Canada, under the keen leadership of Alan Rock, contracted Prairie Plant Systems to produce cannabis for research and distribution to people who had a license to use the herb. 

The cannabis grown by PPS is said to have many problems, including a low percentage of THC.  It is probably the only medicine ever grown in an abandoned, heavily contaminated mine.  The cannabis is crushed, stalk, leaf and bud, into a powder before it is irradiated.  The cost of $150 per ounce is reasonable if you are buying on the street, though the quality is quite low.  At first, those with an Application To Possess (ATP) did not have access to PPS product.  These original regulations were struck down as unconstitutional in the case of Hitzig et al. on Oct 7, 2003, where Alan represented several individuals, including a co-founder of the Toronto Compassion Center, Warren Hitzig.  This ruling forced Health Canada to start providing PPS cannabis to patients and change several sections of the MMAR that made it difficult for patients to obtain doctor’s signatures and illegal to pay a designated grower any compensation for producing medicine. 

Though every court decision about a legitimate compassion club has resulted with acquittals, only a few representatives from these clubs have ever been asked for input into the MMAR and there appears to be no plan to ever license clubs.  In the year 2007, Health Canada plans upon phasing out the licenses to grow cannabis, forcing patients to purchase their medicine from PPS.  Many are expected to resist this move and fight the government in court.

The PPS product is of such poor quality that, as of Sept 1, 2006 only 301 patients had purchased it, with many returning the cannabis and refusing to pay for it.  Of the 1492 with ATP’s, 1061 also have licenses to grow or have a designated grower, though only 231 have asked for government seeds.  In March 2006, Victoria’s Mayor and City Council wrote a letter to Health Canada stating that the MMAR were not adequate and that the program needed review because it put seriously ill people at risk.  In Sept 2006, the federal government announced that it had cut more spending upon medical cannabis research.  Moses Zaimner’s company, CANNASAT, now owns 40% of PPS.

The context here is not simply that the marihuana prohibition exposes Parker, like all other users and growers, to criminal prosecution and possible loss of liberty.  Rather, Parker alleges that the prohibition interferes with his health and therefore his security interest as well as his liberty interest.  Related to this aspect of the case is that Parker does not seek to avoid the marihuana prohibition to assist in the treatment of some mild discomfort.  If it is not properly controlled, his seizure activity can be life-threatening.  Further, the evidence concerning the use of marihuana to assist in the treatment of other illnesses centred on patients with profound symptoms:  AIDS patients suffering from wasting disease, cancer patients receiving chemotherapy and patients suffering from glaucoma, to name just a few.

We were not directed to any common law history of entitlement to drug therapy.  The closest analogue is the doctrine of informed consent, which makes it a civil wrong to
impose treatment without the consent of the patient.  The patient may also demand that treatment, once commenced, be withdrawn or discontinued.  See Rodriguez at pp. 598-99.  While there is obviously a difference between a right to refuse treatment and a right to demand treatment, they can also be seen as two points on a continuum rooted in the common-law right to self-determination with respect to medical care.  This includes the right to choose to select among alternative forms of treatment.  pp 84+ pp 135, R. vs Parker, July 31, 2000.

Canadian AIDS Society Study Calls for Legalization of Compassion Clubs and Audit of Federal Medical Cannabis Program, June 14, 2006: A study released by the Canadian AIDS Society on Wednesday calls on federal Auditor General Sheila Fraser to conduct a performance audit of the federal medical cannabis program, and also recommends the legalization of compassion clubs as community-based medical cannabis dispensaries.   According to the study, over 85% of those suffering from HIV/AIDS who use medical cannabis currently obtain it from the black-market; and despite federal government spending of over $6 million on a cannabis production facility located in a mine in Flin Flon, Manitoba, less than 200 Canadians are currently accessing their medicine from Health Canada.  The study, which was funded by Public Health Agency of Canada, also recommends the legalization of compassion clubs, which currently help over 10,000 critically and chronically ill Canadians gain access to a safe source of cannabis and cannabis-based therapies. CAS web page.

The record here makes clear that these limitations on supply in the MMAR present real and significant challenges to ATP holders.  Many individuals who establish the requisite medical need under the MMAR and obtain ATPs will have to go to the black market on a more or less regular basis to maintain their supply of medical marihuana.  As the Government acknowledged in argument, the MMAR scheme assumes the existence of the black market in marihuana.  Indeed, it depends on the black market.  Without the black market, the scheme set out in MMAR would be a sham.  

In short, in their actual operation, the MMAR require what is, as far as we know, a unique partnering of the Government and the black market to fill serious and recognized medical needs.   The premise underlying the MMAR, that seriously ill people, some of whom are so sick it is anticipated they will die within a year, can grow their own medicine, have a friend grow it, or get it on the black market, is puzzling.  It is explained, in our view, by the assumption implicit in the MMAR and specifically articulated by the Government in its factum, that those who will seek an ATP will be long-time medical marihuana users who have an established pattern of self-medication.  According to this assumption, these persons will have no difficulty filling their medical marihuana needs either through cultivation or from “unlicensed” reliable sources.  This first assumption reveals a second.  In relying on the scheme in the MMAR as an appropriate response to the problem identified in R. v. Parker, supra, the Government must assume that a segment of the black market has provided and will continue to provide a reliable and suitable source of medical marihuana for those in need.  pp 71 + 72, Hitzig et al. Oct 7, 2003.

TORONTO, Sept. 26: Yesterday the Conservative government announced spending cuts scheduled over the next two years. Funding for academic medical marijuana research - originally made available through the Medical Marijuana Research Program (MMRP), established in 2003 - was included in that list… Academic medical marijuana researchers can still apply for CIHR ("Canadian Institutes of Health Research") funding, but will no longer have access to these remaining undistributed funds that were available through the MMRP. Originally $7.5 million was allocated to this task, of which approximately $3.5 million has already been awarded to researchers such as Dr. Mark Ware, a pain physician at the McGill University Health Centre (MUHC) Pain Centre and principal investigator for the 3-year, 350-patient COMPASS trial. www.dpna.org

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