On January 10, the Federal Court of Canada declared invalid a squirrely provision of the Marihuana Medical Access Regulations (MMAR) that prohibits licensed pot producers from growing for more than one patient. In his decision, Judge Barry Strayer smoked out the Kafkaesque loopholes that have forced those licensed to use pot in this country to pay high prices on the black market or smoke bush weed from a lone state-sanctioned dealer that they say has little therapeutic value. Here’s an edited excerpt from Strayer’s tongue-lashing.
I have some misgivings about the court prescribing therapeutic substances which are not drugs approved under the elaborate and scientific processes of the Food And Drug Act, and on which there is far from a scientific consensus as to their benefits.
But the real issues in dispute here are whether the remedial steps taken by the government [to amend the MMAR] have brought it into conformity with the Charter.
The attorney general has, correctly I believe, pointed out that there’s no obligation on the part of government to supply marihuana to medical users. What the Charter requires is that government not hinder for no good reason those with a demonstrated medical need to obtain this substance.
According to the government’s own statistics, some 80 per cent of the 1,983 persons authorized to have and use marihuana are not obtaining it from the government source. The evidence also shows that many users are unable to grow their own marihuana, either because they are too ill or because their home circumstances do not make it possible.
While I have no statistics on the percentage of the market supplied by those designated persons with a production licence, the MMAR regulations remain almost as restrictive as those which were struck down by the Ontario Court of Appeal [in 2003].
Some mention was made of quality control being jeopardized if designated producers could produce for more than one customer.
I am unaware that Health Canada imposes any quality control on designated producers now, but if it does, or even if it does not, it can put in place the same kind of quality controls for designated producers with one or many customers.
Indeed, it seems logical that if designated producers were authorized to produce for many customers, there would be economies of scale and a level of income that might make possible even better quality control by the producer.
It might equally be said that with fewer designated producers having larger operations, a system of inspection would be much easier to sustain than in the present plethora of single-customer producers.
The government also says that the current regs are necessary to “maintain an approach that is consistent with movement toward a supply model” whereby medical marihuana would be produced and made available like other therapeutic drugs, on prescription and through pharmacies.
That may well be a laudable goal and if ever reached would make unnecessary litigation such as the present case. But it is no answer to say that someday there may be a better system. Nor does the hope for the future explain why a designated producer must be restricted to one customer.
The minister argues that any licensed medical marihuana user who cannot grow for himself or cannot find a designated producer may obtain his dried marihuana or seed from a government contractor.
That certainly does provide an alternative avenue of access. But the applicants take the position that the product is inferior.
I am not prepared to pass judgment on the product.
But in my view, it is not tenable for the government to force them either to buy from the government contractor, grow their own or be limited to the unnecessarily restrictive system of designated producers.
Leaving patients twisting in the wind
The legal twists that have plagued access to medical pot for licensed users
July 2000 The Court of Appeal grants epileptic Terry Parker the right to possess pot for medical purposes and gives the feds one year to come up with a medpot regime.
July 2001 One day before the court’s deadline expires, the feds enact the Medical Marihuana Access Regulations (MMAR). The MMAR prohibits compensation being paid to a designated producer and, more seriously, limits designated producers to one customer.
January 2003 The Superior Court of Ontario declares the regs in contravention of the Charter right to liberty and security of the person in the Hitzig ruling. The government appeals.
July 2003 Health Canada develops the Interim Policy On Distribution Of Marihuana Seeds And Dried Marihuana Product For Medical Purposes, allowing access to medpot and seeds through Prairie Plant Systems, the government’s authorized producer.
October 2003 The Ontario Court of Appeal upholds Hitzig and declares various sections of MMAR invalid.
December 2003 The feds repeal several MMAR provisions but re-enact the section restricting licensed producers to one customer.
January 2008 The Federal Court of Canada strikes down, once again, the offending provision.