MarijuanaNews.com : Philippe Lucas’ Analysis of the Consequences of Health Canada’s Failure to Obey the Ontario Court’s Ruling On Medical Cannabis. Is Cannabis Legal in Canada?

Posted January 3, 2005
Analysis by Richard Cowan Sponsored by

Advanced Nutrients

See

Is Cannabis Legal in Canada? Michele Kubby Writes Chief Justice of BC Supreme
Court Seeking A Hearing After Being Stalled for 5 Months. More Challenges Loom.

I am enormously grateful to Philippe Lucas of the

Vancouver Island Compassion Society and

Canadians for Safe Access for his analysis of Health Canada’s refusal to
obey the law.

Philippe is one of the most effective activists in the
medical cannabis movement.
See

Canadian Medical Cannabis Patients Denounce Health Canada’s War On Sick And
Dying As New Survey Shows “MARIJUANA LAWS A TOTAL FAILURE”
and

Health Canada’s “Office of Cannabis Medical Access’ Stakeholder Advisory
Committee” Includes “Physicians for A Smoke Free Canada” - Not The Compassion
Societies. But It Will Let Them Talk… For An Hour

Analysis by Philippe Lucas
The following is an analysis of a Constitutional challenge based on the HC
interpretation of the

Ontario Court of Appeals Hitzig decision.

First, 3 sections of the OCA Hitzig decision (hereby
referred to as H2) that absolutely confirm that s.4 of the CDSA is dependent on
a constitutionally sound medical exemption, and that (according to the OCA,
which was responsible for the original Parker ruling of unconstitutionality) it
was therefore of no force or effect from July 31st 2001-H2 (Nov.7th,
03).

[2] We have concluded that for
those people the MMAR as drafted by the Government do not create a
constitutionally acceptable medical exemption. Our reasons for so concluding
differ somewhat from those of Lederman J. So does the remedy we would impose,
namely to declare invalid only five specific sections of the MMAR. This
renders constitutional the medical exemption as described in the remaining
provisions of the MMAR, thereby rendering the possession prohibition in
s. 4 of the CDSA constitutional: R. v. Parker, supra. The
interests of justice are best served by removing any uncertainty as to the
constitutionality of the possession prohibition while at the same time providing
for a constitutionally acceptable medical exemption.

The key word here is “thereby”; in other words, without a
constitutionally valid MMAR, section 4 of the CDSA is unconstitutional for not
providing an exemption for medical users (whose constitutional freedoms are
violated without it).

Also relevant:

[166] The declarations of
invalidity we propose remove the single unconstitutional barrier to eligibility
and sufficient barriers to supply that ATP holders will be reasonably able to
meet their medical needs from licit sources. As a result, the MMAR
as modified become a constitutionally sound
medical exemption to the marihuana prohibition in s. 4 of the CDSA.

Just so there’s no doubt about it, I refer you to para. 170, where
the justices explain their reasoning for not suspending their ruling and orders
to strike down 5 sections of the MMAR:

[170]
First, if we do not suspend our order, there will immediately be a
constitutionally valid exemption in effect and the marihuana prohibition in s. 4
of the CDSA will immediately be constitutionally valid and of full force
and effect. In R. v. Parker, supra, this court declared the prohibition
invalid as of July 31, 2001 if by that date the Government had not enacted a
constitutionally sound medical exemption. Our decision in this case confirms
that it did not do so. Hence the marihuana prohibition in s. 4 has been of no
force or effect since July 31, 2001. Since the July 8, 2003 regulation did not
address the eligibility deficiency, that alone could not have cured the problem.
However, our order has the result of constitutionalizing the medical exemption
created by the Government. As a result, the marihuana prohibition in s. 4 is no
longer inconsistent with the provisions of the Constitution. Although Parliament
may subsequently choose to change it, that prohibition is now no longer invalid,
but is of full force and effect. Those who establish medical need are simply
exempted from it. This consequence removes the cloud of uncertainty from the
marihuana prohibition in s. 4 of the CDSA - a cloud which we were told in
argument has created very considerable confusion for courts and law enforcement
agencies alike. A suspension of our remedy would simply have continued that
undesirable uncertainty for a further period of time.

In other words, pre-H2 s.4
of the CDSA is dead; it is only saved by a constitutional MMAR; the OCA made 5
changes to the MMAR to render it constitutional (and therefore save sect.4). HC
has only accepted 3 of these changes (and only implemented 2), therefore the
MMAR remain constitutionally invalid, thus sect. 4 of the CDSA is of no force or
effect for impinging on the freedom of medical users.

This is only relevant in
that it puts more impetus on HC and the Justice dept. to drop the charges
against us (and save sect. 4 of the CDSA), or to risk losing not only the MMAR,
but also parts of the CDSA.

The OCA’s order:

[159]
First, as to its eligibility provisions, we have found that the requirement for
a second specialist is unnecessary and violates the s. 7 rights of those in
medical need who come within category 3. We would simply declare that
requirement, found in ss. 4(2)(c) and s. 7 of the MMAR, to be of no force
or effect.

[160] We
have also found that the MMAR violate the s. 7 rights of those with a
medical need for marihuana because they fail to effectively remove the state
barriers to a licit source of supply. As we have described, these barriers
encompass a broad array of state actions: the MMAR, the provisions of the
FDA and the CDSA and the regulations made thereunder and
ultimately the criminal sanction applied to anyone (except a DPL holder) who
supplies marihuana to an individual with a medical need for it.

[161] We have earlier described the
ineffectiveness of the DPL provisions of the MMAR to ensure a licit
supply to ATP holders. That ineffectiveness appears to stem very largely from
two prohibitions in the MMAR. First, a DPL holder cannot be remunerated
for growing marihuana and supplying it to the ATP holder (s. 34(2)). Second, a
DPL holder cannot grow marihuana for more than one ATP holder (s. 41(b)) nor
combine his or her growing with more than two other DPL holders (s. 54). These
barriers effectively prevent the emergence of lawfully sanctioned
“compassion clubs”
or any other efficient form of supply to ATP holders. Indeed, when asked in
argument what specific barriers had to be removed to provide for a lawful source
of supply, counsel for the Hitzig applicants immediately cited these provisions.

[162] As
the record makes clear, there are a number of people who already have a source
of marihuana and wish to engage in compassionate supply
of it to those in medical need. Indeed the Government’s case rested in large
part on their existence. It argued that they effectively serve as “unlicensed
suppliers” for ATP holders. It may be that not all of these people would satisfy
the requirements to become DPL holders set out in the MMAR. However, we are
satisfied that, on this record, enough would do so that taken together with
existing DPL holders, the DPL mechanism as modified could then provide a licit
source of supply to ATP holders. Once this modification is implemented, ATP
holders would therefore no longer need to access the black market to get the
marihuana they need.

In other words, the following order suspending the limits on the
number of people that a DPL could grow for, as well as the number of DPL’s
allowed in one location, is specifically aimed at establishing a
licensing protocol for the compassion clubs. It is a harm-reduction measure
that would potentially reduce the number of licensed growers from the currently
unmanageable 425 PPLs under the MMAR, the 78 PPL’s under section 56, the 66 DPLs
under MMAR, and the 3 DPL’s under section 56 (for a total of 572 designated
growers in Canada and (presumably) nearly as many grow-ops), to a more easily
regulated and managed number of production facilities.

In their reasoning for not suspending the order, the justices
further elaborate on this:

[174] Fourth, a central component
of the Government’s case is that there is an established part of the black
market, which has historically provided a safe source of marihuana to those with
the medical need for it, and that there is therefore no supply issue. The
Government says that these “unlicensed suppliers” should continue to serve as
the source of supply for those with a medical exemption. Since our remedy in
effect simply clears the way for a licensing of these suppliers, the Government
cannot be heard to argue that our remedy is unworkable.

Therefore the OCMAs decision to reverse this order not only
contravenes the OCA decision, it is intended specifically to stand in the way of
licensing clubs.

The following section makes it clear that the justices intended for
the DPL section of the MMAR to be altered even if the govt. initiates it’s own
distribution arm (which it did on July 8th,
2003 as a result of Hitzig1). The justices take note of this in addressing the
problem of “first seed”:

[164]
However, even this limited first seed difficulty would be eliminated if future
DPL holders who did not already have their first seed could access the
Government supply to obtain it. The regulation that was brought into force on
July 8, 2003 would appear to provide for just that solution.

Therefore HC’s distribution of Prairie Plant System (PPS) product was recognized by the OCA,
but obviously did not nullify the need to allow for more large-scale production
(and alternate sources to the govt. supply) as is apparent in their striking
down of DPL restrictions; it only made the question of “first seed” irrelevant,
since seeds were now available through HC.
See

Blame DEAland: Canadian Health Minister Blames DEA for Canadian Medical Cannabis
Fiasco. DEA Wouldn’t Sell Them Seeds. Now If Someone In Canada Would Go Into The
Seed Business…

Let’s examine these 5 orders and Health
Canada’s reaction to them in more detail:

First, HC has indeed made the changes required in the MMAR (Section
34 has been repealed) to allow DPLs to be compensated for their supply. We have
no concern or argument against this particular interpretation of this order.

The second order by the OCA regards eligibility, and it
has yet to be addressed adequately. Although the OCA has found the
recommendation by a second specialist to be unnecessary and in violation of s.7
rights of med users [para.159], and have thus justly declared this requirement
to be unconstitutional, an examination of HC’s implementation shows bad faith by
the OCMA. Although the second specialist requirement has been struck from the
official regs (Regulations Amending the Marihuana Medical Access
Regulations P.C. 2003-1908 3 December, 2003), the newest version of
the official application form shows something quite different. The “Medical
Declaration by First Specialist” form found at:

http://www.hc-sc.gc.ca/hecs-sesc/ocma/pdf/section_b3.pdf on August 9th, 2004
doesn’t omit the second specialist recommendation at all, it merely shifts the
requirement to finding one from the patient/applicant to the first specialist:

My area
of medical specialization is relevant to the treatment of the applicant’s
medical condition. In my medical opinion:

a.
the applicant’s symptom(s) listed in Part 2 of this form falls
under Category 3 (symptoms that do not fall under either category 1or 2, where a
second specialist, in consultation with you, is prepared to provide a
declaration indicating his or her agreement with your opinion regarding the
statements in subparagraphs c and d below);

Notice that a second
declaration is still required (not optional). This is undoubtedly contrary to
the intent and specific order of the court:

[145]
The second specialist requirement is clearly an additional restriction on the
acquisition of a medical exemption by those in category 3. Yet it is hard to see
that the second specialist adds anything that could be said to advance the state
interest. The second specialist is no differently qualified than the first.
Ironically, the second specialist is not asked at all to opine about the
availability of other possible treatments, which is the principal justification
advanced by the state for any specialist involvement. Rather, the second
specialist is required only to agree with the first specialist that marihuana
would mitigate the symptom and that the benefits outweigh the risks. And in
doing so the second specialist does not see the individual but merely reviews
the medical file. In these circumstances the requirement for a second opinion
adds so little if any value to the assessment of medical need that it is no more
than an arbitrary barrier standing between an individual in category 3 and a
medical exemption. In this particular respect only, the eligibility conditions
of the MMAR do not accord with the principles of fundamental justice.
(H2, para 145)

As to the amendments
striking down the limitations on DPLs and their grow sites (sect. 41(b) and s.54
of the MMAR), Health Canada has simply re-instated them verbatim (http://canadagazette.gc.ca/partII/2003/20031217/html/sor387-e.html):

9. (1) Paragraph 41(b)
of the Regulations is repealed.

(2) Section 41 of the Regulations is amended
by adding the following before paragraph (c):

(b.1) if the
designated person would be the holder of more than one licence to produce; or

10. Section 54 of the Regulations is
repealed.

11. The Regulations are amended by adding
the following before section 55:

54.1
The holder of a licence to produce shall not produce marihuana in common with
more than two other holders of licences to produce.

This is of course completely contrary to the court’s
order. This becomes incredibly important, because the OCA stated quite clearly
while defending their decision not to suspend this order that these 5 changes
were the specific minimum required for the MMAR to be considered constitutional:

[171]
Second, in argument, counsel for the Government strongly urged that if we found
the MMAR to be constitutionally flawed, we should be as precise as
possible in specifying the corrective measures to be taken. Our remedy quite
precisely determines the barriers in the MMAR which, if removed, would
render it a constitutionally sound medical exemption to s. 4 of the CDSA.
Our order represents a minimal intrusion on the Government’s scheme of medical
exemption. It leaves untouched the licensed possession aspect of the scheme and
modifies the licensed production aspect of it only enough to make it
constitutionally acceptable.

The govts. own reasons for disregarding these court orders don’t stand up to
scrutiny (http://canadagazette.gc.ca/partII/2003/20031217/html/sor387-e.html):

(4) To maintain control over the production
and distribution of marihuana in keeping with the principles of the CDSA and the
FDA, and to maintain compliance with Canada’s international obligations, the
limits on the production of marihuana for medical purposes by DPL holders will
be maintained:

• Paragraph 41(b)
will be re-enacted to reinstate on a national basis, the limit on the number of
persons for whom one designated person can produce marihuana; under the MMAR,
one DPL holder can cultivate for only one ATP holder; and

• Section 54 will be
re-enacted to reinstate on a national basis, the limit on the number of DPL
holders who can produce marihuana in common; under the MMAR, a DPL holder is not
permitted to produce marihuana in common with more than two other DPL holders.

These limits on the
production of marihuana are necessary to:

maintain control over distribution of an unapproved drug product, which has not
yet been demonstrated to comply with the requirements of the FDA/FDR;

There is no way to gain compliance under the FDA/FDR if we cannot
cultivate a competing source of cannabis to the PPS product; you can’t
test/regulate/standardize something that you can’t produce in the first place.
The Health
Canada monopoly on cultivation and distribution makes this a specious
argument – you need a supply to test and research for drug approval, but HC
makes this proposed production illegal.

minimize the risk of diversion of marihuana for non-medical use;

I don’t believe that there is a single police officer in the country
that would argue that having 572 potential grow-ops in
Canada would be easier to oversee than a few dozen bigger, community-based
facilities. It’s important to note that what the OCA
suggests would potentially reduce the number of DPL’s (and therefore grow
operations) by making some responsible to more than one grower. For example, a
single production facility could easily take care of B.C.’s 115 exemptees.

-
be
consistent with the obligations imposed on Canada as a signatory to the United
Nations’ Single Convention on Narcotic Drugs, 1961 as amended in 1972
(the 1961 Convention), in respect of cultivation and distribution of cannabis;
and

In my mind, this is the worst nonsense in this reasoning,
because HC’s lawyers had to know how selectively they are reading the Single
Convention. First and foremost, the Convention does not override the
constitutional obligations of the signatory states.
See

Swiss Government Says Going Dutch Does NOT Violate Treaties. Implications for
Other Countries, Especially Canada and UK. Plus Full Text of UN Nark Press
Release.
and links

In other words, the OCA
order trumps the Convention. Secondly, in paragraph 23 (e) it is clear that in
regards to cannabis production, medical use is excluded (in article 28, article
23 is designated to apply to cannabis production as well):
(e)
The Agency shall, in
respect of opium, have the exclusive right of importing, exporting, wholesale
trading and maintaining stocks other than those held by manufacturers of opium
alkaloids, medicinal opium or opium preparations. Parties need not extend this
exclusive right to medicinal opium and opium preparations. Thirdly, article 30
re. “Trade and Distribution” clearly allows for licensed distribution: “1.
(a) The Parties shall require that the trade in and distribution of drugs
be under licence except where such trade or distribution is carried out by a
State enterprise or State enterprises.” It even allows for unlicensed
distribution by authorized persons performing a medical or scientific function:
“1(c) The provisions of subparagraphs (a) and (b)
relating to licensing need not apply to persons duly authorized to perform and
while performing therapeutic or scientific functions.” Therefore the govt.
cannot be heard to argue that the distribution of medicinal cannabis, by itself
or other authorized bodies, is any more of an infraction than the regulated
production and sale of codeine or other opiates. In fact, cannabis is the only
exception in how the Canadian govt. regulates the sale and production of
narcotics, including much more dangerous drugs such as cocaine and heroin:

[31] There is no licensed
dealer of marihuana in Canada who is able to supply marihuana to those with the
medical need for it. All other CDSA Schedule I and II drugs, including
heroin and cocaine, are commercially produced and available through licensed
dealers in Canada, albeit under strict restrictions. (H2, para 31)

maintain an approach that is consistent with movement toward a supply model
whereby marihuana for medical purposes would be: subject to product standards;
produced under regulated conditions; and distributed through pharmacies, on the
advice of physicians, to patients with serious illnesses, when conventional
therapies are unsuccessful. Such a model would also include a program of
education and market surveillance.

HC’s current restrictions are an obstacle to this kind of
standardized production: the bust at VITCRI –
Canada’s safest and most tested and standardized supply – reflect the
consequences of this poor policy.
See

Hypocrisy and Democracy: Raid on Medical Cannabis Research Facility Critical of
Health Canada’s Schwag Challenges Canada’s Values. What Will The Politicians
Say?
and

Scientific and Ethical Implications of Dutch Medical Cannabis Program for Health
Canada. Does Making Cannabis Available By Prescription Before The Research Is
Completed Offer A Way Out?
and links

And although the OCMA acknowledges that compassion clubs would be locked out of
the program by re-enacting restrictions on DPLs, it defends its actions by
stating that:

Some persons may view the
maintenance of restrictions on production by DPL holders as depriving them of
the opportunity to develop a business or not-for-profit service to supply
marihuana to persons authorized to possess. It was never the intent of the MMAR,
which permits, on a compassionate basis, seriously ill persons to obtain an
authorization to possess marihuana for medical purposes when conventional
therapies have been unsuccessful, to give rise to any form of commercial supply
network.

Frankly, I don’t see how limiting production to an unjustified
monopoly by one private company, and then handing over distribution to
established commercial interests (ie. pharmacies) can be seen as anything but
giving rise to a “commercial supply network”.

This interpretation of Hitzig 2 is also incompatible with the
principles of Fundamental Justice:

[135]
Related to this principle is the concept described by Sopinka J. in
Rodriguez, supra, where he said that if the state action which causes the
deprivation does little or nothing to enhance the state’s interest, it can
properly be seen as arbitrary and not in accordance with fundamental justice. In
such circumstances there cannot possibly be a fair balance between the
individual’s rights and the collective interests. Sopinka J. put it this way, at
594: Where the deprivation of the right in question does little or nothing to
enhance the state’s interest (whatever it may be), it seems to me that a breach
of fundamental justice will be made out, as the individual’s rights will have
been deprived for no valid purpose. This is, to my mind, essentially the type of
analysis which E. Colvin advocates in his article “Section Seven of the

Canadian Charter of Rights and Freedoms” (1989), 68 Can. Bar Rev.
560, and which was carried out in Morgentaler. That is, both Dickson
C.J. and Beetz J. were of the view that at least some of the restrictions placed
upon access to abortion had no relevance to the state objective of protecting
the foetus while protecting the life and health of the mother. In that regard
the restrictions were arbitrary or unfair.

So, as we can see, the HC/OCMA interpretation of the
Hitzig OCA decision – and their disregard of at least 2 (possibly 3) out of the
5 court orders, in no way meets the minimum standard of constitutionality or
fundamental justice. The justices made it clear that suspending this order
(presumably by either themselves or through poor implementation by HC, would
violate the Charter:

[175]
Finally an order that is not suspended gives immediate recognition to the s. 7
rights of those whose serious illnesses necessitate that they use marihuana.
Some of these people are terminally ill. To suspend our remedy if they may die
in the meantime is, in our view, inconsistent with fundamental Charter
values. (H2, para 175)

With this in mind, HC’s “creative” approach to Hitzig
(and usual total disregard for the end users of this program) seems that much
more condemnable, since current and potential exemptees continue to die/suffer
while these regs. remain unchanged.

The government’s argument will focus on the following passage
from Hitzig:

[172] Third, we acknowledge that
the Government could choose to address the constitutional difficulty by adopting
an approach fundamentally different from that contemplated in the MMAR.
The alternatives range from the Government acting as the sole provider, to the
decriminalization of all transactions that provide marihuana to an ATP holder.
Indeed, even if the Government is content with the solution contained in the
MMAR as modified by our order, it may seek to impose reasonable limits,
provided they do not impede an effective licit supply, for example on the amount
of compensation that a DPL holder can claim or on the size of the operation that
a DPL holder can undertake.

The govt. has used the above one paragraph as its defense for not
implementing the DPL amendments recommended by the OCA, stating: “In its
decision, the court made clear that the Government need not accept the remedy
crafted by the court and could address the constitutional shortcomings
identified in the MMAR with an alternative regulatory framework. The Government
has therefore decided not to appeal the decision, but instead, to respond to the
court decision by amending the MMAR and continuing to provide access to the
government source of supply under the Interim Policy.” (http://canadagazette.gc.ca/partII/2003/20031217/html/sor387-e.html)

And yet the feds have clearly exercised more discretion
than the OCA had anticipated, and have violated both the spirit and literal
intention of the OCA Hitzig decision and order.

Now lets go back to pre-Hitzig2 and Hitzig1, when the OCA
agrees the program was clearly unconstitutional for giving exemptions out
without addressing the supply issue. This is the period when VITCRI came into
existence (Jan. 03).

It has been established and accepted in H1 and H2 that the
govt. had an informal arrangement with the black-market to supply medical
users. H2, para 22 acknowledges problems with this source of meds:

[22] The problems associated
with the purchase of medicinal marihuana on the black market are numerous and,
in most cases, obvious. As with any black market product, prices are
artificially high. High prices cause real difficulty for seriously ill
individuals, many of whom live on fixed incomes. Black market supply is also
notoriously unpredictable. The supplier of marihuana today may have moved on by
tomorrow or may have been closed down by the police. In addition to
unpredictability, there is no quality control on the black market. Purchasers do
not know what they are getting and have no protection against adulterated
product. This is particularly problematic for some whose illnesses involve
allergies, or stomach ailments that can be aggravated by the consumption of
tainted products. Resort to the black market may also require individuals to
consort with criminals who are unknown to them.

After the successful Lucas decision of 2002, as director
of the VICS, my goal was to address the concerns of an non-standardized
black-market supply, as well as positioning the VICS to do the research that HC
had stalled on or failed to do as part of its responsibilities in overseeing the
OCMA:

In 1999, in order to
inform its policy and decision making processes, Health Canada developed a
clinical research strategy to determine the risks and benefits associated with
the use of marijuana, in smoked or non-smoked forms, for medical purposes. This
strategy includes two initiatives with the Canadian Institutes of Health
Research (CIHR): the Medical Marijuana Research Program (MMRP) and the Marijuana
Open Label Safety Initiative (MOLSI). These are grant programs under which
Canadian researchers can obtain funding to conduct clinical studies on the use
of marijuana for medical purposes (http://www.hc-sc.gc.ca/hecs-sesc/ocma/index.htm).

During this 5-year
period, only 2 studies have been approved by Health Canada, and one was
cancelled shortly thereafter. The CRIT smoked cannabis research into HIV/AIDS
wasting had already spent $800,000 of a $2 million research budget when HC
cancelled funding to the project in March ’03, leading to the resignation of Dr.
Gregory Robinson, a physician and AIDS patient, from the OCMA Advisory
Committee. The VICS alone has already participated in more legitimate,
peer-reviewed research than Health Canada has initiated over this period,
including hep-c research with the University of California San Francisco, and
nausea and pregnancy research with UBC/Uvic (I am co-investigator in both of
these protocols).

In order for the
VICS to meet the safety and quality concerns of its membership, lower the
overall price of the product, and standardize a supply of research-grade
cannabis for clinical trials, it fell on us to move away from the black-market
and to produce our own cannabis. With financial/technical assistance from Mike
and Matt, VITCRI was born, and quickly became the safest, most tested and
standardized source of organic cannabis in Canada, allowing us to guarantee the
safety of this medicine (confirmed by an extensive testing protocol), and to
lower our prices to the members of the VICS. In October of ’03, the VICS
received a $50,000 grant from the U.S.-based Marijuana Policy Project (MPP) to
undertake the first high-THC, smoked cannabis and chronic pain clinical protocol
in North America.

In other words, at
the time of Hitzig 1, the VICS was supplying more legitimate medical users than
Health Canada (who had yet to even begin distribution, and who claimed in the
media that the PPS product was for research purposes only), we were engaged in
more research than HC, and we were doing all of this at no cost to the
taxpayer. We were undoubtedly the best solution to a very complicated problem,
and unlike any other compassion club in North America, we were completely off of
the black-market (in other words, there can never be any accusation of adding a
legal/enforcement burden to the public).

Hitzig1 would
support the argument that since there was no regulated supply from Health
Canada, but the OCMA continued to dole out exemptions, we were the best solution
to the problem of access to a safe source of cannabis, and therefore de-facto
legal because of the lacuna created by HC’s program. What has changed since
then? Well, the govt. was forced to begin the distribution of cannabis on July
9th of 2003 as a result of H1 coming into effect. But is the govt.
supply enough to save the MMAR from unconstitutionality? Not if critically and
chronically ill Canadians can expect a safe, effective supply of meds. As can
be seen by my affadavit for the Carasel case (sent separately), the problems
with the govt. supply are numerous and still unresolved: gamma irradiation,
heavy metal content, non-organic production, inaccurate THC counts, lack of
strain selection, poor smokability, too fine a grind, moisture levels…despite
nearly 5 years and over $5 million spent on the PPS cultivation contract, all of
these fore-mentioned have led to a 30% return rate of the original batch, and to
a very small number of exemptees ordering their product from the govt. (55 out
of 781 exemptees, or around 7% of exemptees). In fact, it is fairly safe to say
that patients are right to be at least as concerned about the safety and quality
of the HC/PPS product as they would be black market cannabis (H2, para 22); it
follows that the better option for users would be a safe, standardized organic
supply such as the cannabis produced by VITCRI.

H2 also acknowledges
that the Government argued that many of the problems associated with the
black-market are mitigated by the establishment of compassion clubs, even if the
supply is still underground and non-standardized:

The Government accepts
that reliance on the black market to fill a medical need would in most cases
raise supply problems. It maintains, however, that marihuana is unique in that
there is an established part of the black market, which the Government calls
“unlicensed suppliers”, that has for many years provided a safe source of
medical marihuana. The Government argues that those who want to use marihuana
for medical purposes have been “self-medicating” for years and know full well
where to go to obtain the necessary medical marihuana. It is the Government’s
contention that this particular part of the black market does not present the
problems that are generally associated with purchase of product on the black
market. The application record offers some support for this contention. Many of
the applicants do have well-established “friendly” sources in the black market
from which they can safely acquire reliable medicinal marihuana. It is ironic,
given the Government’s reliance on this part of the black market to supply those
whom the Government has determined should be allowed to use marihuana, that the
police, another arm of the state, shut down these operations from time to time,
presumably because they contravene the law. (H2, para23).

It is not only
ironic, it is wrong, unjust, and obviously not in the best interest of the end
users, and certainly shows little compassion or understanding by the feds. Of
the medical needs of legitimate users.

In terms of a legal
argument, I believe that a Parker reference to Morgentaler in H2 is useful in
this case:

[94] It is equally clear that the right to
security of the person of those with the medical need to use marihuana is
implicated in the circumstances of this case. In Parker, supra, this
court reviewed the jurisprudence and concluded that this right encompasses the
right to access medication reasonably required for the treatment of serious
medical conditions, at least, when that access is interfered with by the state
by means of a criminal sanction. In Gosselin, supra, (which postdated Parker by
two and one-half years) the Supreme Court of Canada made clear that this
interference by the state need not be by way of the criminal law, provided it
results from the state’s conduct in the course of enforcing and securing
compliance with the law.

[95] In this case, the
MMAR, with their strict conditions for eligibility and their restrictive
provisions relating to a source of supply, clearly present an impediment to
access to marihuana by those who need it for their serious medical conditions.
By putting these regulatory constraints on that access, the MMAR can be said to
implicate the right to security of the person even without considering the
criminal sanctions which support the regulatory structure. Those sanctions apply
not only to those who need to take marihuana but do not have an ATP or who
cannot comply with its conditions.
They also apply to anyone who would supply marihuana to them unless that person
has met the limiting terms required to obtain a DPL. As seen in
Rodriguez v. British Columbia
(A. G.), [1993] 3 S.C.R. 519 , a criminal sanction applied to
another who would assist an individual in a fundamental choice affecting his or
her personal autonomy can constitute an interference with that individual’s
security of the person. Thus, we conclude that the MMAR implicate the right of
security of the person of those with the medical need to take marihuana.

[97] In
its narrower aspect, the right to liberty is clearly violated because those with
the medical need to use marihuana are exposed to conviction and imprisonment if
they do not meet the eligibility conditions for or otherwise do not possess an
ATP or if they acquire and possess marihuana outside the strict conditions of
the ATP. In those circumstances, they are subject to the criminal prohibition in
s. 4 of the CDSA. [98] It is no answer at this stage of the s. 7 analysis
to say that there is no risk to the right to liberty because those in medical
need can possess marihuana lawfully simply by applying for an ATP, meeting the
eligibility conditions and observing the other conditions that are part of the
ATP process. While the reasonableness of these conditions may be relevant in
determining whether the MMAR conform to the principles of fundamental
justice they clearly represent significant barriers imposed by the state
standing between those with medical need and their use of marihuana, unaffected
by criminal sanction. Simply put, the MMAR do not remove the real risk of
conviction and imprisonment for those who must acquire and use marihuana to meet
their medical needs. The MMAR thus interfere with this aspect of their
right to liberty. [99] As we have said, the right to liberty, viewed more
broadly, encompasses the right to make decisions that are of fundamental
personal importance, such as the decision to use marihuana when necessary to
control symptoms of serious medical conditions. For those with that need, the
MMAR undoubtedly constitute a serious intrusion into a decision of
fundamental personal importance. In order to use the marihuana they require,
they must comply with the various conditions specified in the ATP process or
face the threat of criminal prosecution. In placing these significant hurdles in
their way the state has interfered with this broader aspect of their right to
liberty.

[101] In coming to its conclusion, this court in
Parker relied on the description by Sopinka J. of the right to security of
the person in the context of medical treatment which is found in Rodriguez,
supra, at 587-88:

In my view, then the judgments of
this Court in Morgentaler can be seen to encompass a notion of personal
autonomy involving, at the very least, control over one’s bodily integrity free
from state interference and freedom from state-imposed psychological and
emotional stress. In Reference re
ss. 193
and 195.1(1)(c) of
the Criminal Code (Man.), supra,
Lamer J. (as he then was) also
expressed this view, stating at p. 1177 that “[s]ection 7 is also implicated
when the state restricts individuals’ security of the person by interfering
with, or removing from them, control over their physical or mental integrity”.
There is no question, then, that personal autonomy, at least with respect to
the right to make choices concerning one’s own body, control over one’s physical
and psychological integrity, and basic human dignity are encompassed within
security of the person, at least to the extent of freedom from criminal
prohibitions which interfere with these. [Emphasis added.]

[102] As we have said,
Gosselin,supra, at para. 77, affirmed that s. 7 protects the individual
against the state impinging on life, liberty or security, not just through the
process of the criminal law, but more generally through state action taken in
the course of enforcing and securing compliance with the law.

[103] The medical
exemption scheme puts those people at risk of prosecution and imprisonment when
they use the medication they need but do not have an ATP or cannot observe its
conditions. Moreover, the MMAR provide them with very limited and
ineffective access to marihuana through their own PPL or from a DPL holder.
Apart from this, the criminal prohibition in s. 5 of the CDSA applies to
anyone who would supply them with marihuana. The reality of supply thus is that
this criminal sanction stands between those in medical need and the marihuana
they require. That is the effect of the MMAR.

It is clear that by
maintaining an unjustifiable monopoly on cannabis production and distribution,
Health Canada is depriving med. users of important choices regarding their own
health, such as whether or not they use organic cannabis; strain selection (none
with HC); and alternative methods of ingestion to smoking such as baked goods,
tinctures, sprays, and oils, as well as concentrations such as kif and hashish
(all of which serve as potential harm reduction compared to smoking). It is
also clear from the above that raiding VITCRI directly effects the security of
person (s.7) of legitimate users of cannabis, and serves no purpose in terms or
the govts. interest in controlling the black-market production and distribution
of dangerous drugs.

In other words, just
supplying any cannabis is not enough to meet the constitutional requirements
underlying the MMAR, this supply has to be safe and effective (that means all of
the above), and guaranteed; the PPS supply doesn’t meet this requirement. This
issue is raised in the J.P ruling, where a footnote to para 33 cites Parker:

Before embarking on any
trial for possession simpliciter a court may require the Crown to
establish that the regime under the new regulations, in practice (not just
looking at the regulations alone) is such that persons who prima facie
have need of marijuana for medical purposes are actually getting it. It is not
enough under Parker simply to show that such persons are getting medical
exemptions, if the framework still prevents legal, or at the very least,
non-criminal access to marihuana.

Surely it also follows that not just any supply of government
cannabis will do; the product must meet the safety, selection and quality needs
of the end users, and the PPS supply falls far short of this measure.
Thus like the abortion
laws that were struck down as a result of Morgentaler, the simple existence of
the MMAR - or of the PPS cannabis - not enough to ensure that access to a safe
source is available for legitimate medial users.

Furthermore, there
is simply no guarantee as to the continuity of even the poor-quality govt.
supply:

[40] The most recent Government
response to the medical marihuana problem is an interim policy brought forward
by regulation on July 8, 2003, shortly before these appeals were heard. The
interim policy is a direct response to the declaration by Lederman J. that the
MMAR was unconstitutional, combined with the expiry of the six month
suspension of that order granted by Lederman J., and this court’s refusal to
stay that declaration pending these appeals. As a result of these developments,
the Government was faced with a declaration that arguably rendered the crime of
possession of marihuana in s. 4 of the CDSA of no force and effect for
all purposes. The interim policy was an attempt to save the criminal prohibition
in s. 4 as it applied to individuals other than those who qualified for a
medical exemption under the MMAR.

[41] The Government announced in
the interim policy that marihuana seeds and dried marihuana grown by PPS for the
Government would be made available to individuals who had obtained a medical
exemption under the MMAR or under s. 56 of the CDSA.
It was made abundantly clear in the Statement that
accompanied the regulation that this interim policy would remain in place only
“while clarification was being sought from the courts”.

Thus compassion clubs like the VICS have to continue to
exist and to supply medicinal cannabis, because there is simply no guarantee
(constitutional or otherwise) that the govt. will continue to supply it. Thus
far they have done so reluctantly and in poor faith, and only when forced to by
the courts. However, since the MMAR were never supported by Parliamentary
legislation, the program exists at the whim of the current ruling party and
Health Minister, and can be changed/annulled without debate or discussion, by
simply publishing such changes in the Canada Gazette. This is clearly
not an adequate guarantee to the critically and chronically ill who currently
benefit from its use, whether or not they have exemptions under the MMAR.