Why We’re Supporting a Petition to the Canadian Government Asking for a Review of Medical Cannabis Access
November 18, 2019
Canada’s medical cannabis system is broken.
Its largest suppliers are losing money while patients that can barely afford their medication under this system state that it is often unavailable. Those that can’t afford it have continued to access their medicine the way they always have: through brick-and-mortar dispensaries or knowledgeable illicit growers if they are lucky. From online sources or ‘a guy’ if they’re less lucky; or not at all, if they aren’t at all lucky.
This reliance on luck, connections, and knowledge for access to a medicine is unconstitutional. That’s why many of us spearheaded the submission of a petition last week calling on the Government of Canada to immediately review the state of medical access in Canada.
While Pasha’s focus is on getting small farmers into the legal recreational system, we are also citizens of this country, and members of our community who care for our neighbours, our family, and our friends.
The full text of the petition without commentary can be found here:
Petition to the Government of Canada
- The right to access medical cannabis is well-established by the courts and many feel this access is still lacking, in particular, by not adequately addressing the underlying issues of R. v. Smith and Allard v. Canada rulings.
Our courts have established a constitutional right to access health care without fear of criminal sanction, through R. v. Morgentaler in 1988. Then in 2007, two cases in the Ontario Court of Justice, R. v. Long and R. v. Bodnar/Hall/Spasic, established that this right included access to cannabis.
In 2012 through R. v. Smith, our courts further established that restrictions on the forms of medicinal cannabis are unconstitutional. Then in 2016, Allard v. R. found that restricting a patient’s right to grow for themselves was also unconstitutional.
- Such access is protected under Section 4 of the Health Care and Care Facility Act, and Section 7 of the Charter of Rights and Freedoms, including the protection from delay of access, and that this access is effectively denied for many lower income, marginalized, or disenfranchised people.
Section 4 of the Health Care and Care Facility Act states that: “Any adult who is capable of giving or refusing consent to health care has the right to: (b) select a particular kind of health care on any grounds, including moral and religious”.
Section 7 of the Canadian Charter of Rights and Freedoms states that: “Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
Our courts established in 2005 through Chaoulli v. Quebec, that even delays in obtaining medical treatment which affect patients physically and psychologically trigger the protection of Section 7 of the Charter.
- The illicit market continues to thrive and Justice Phelan in Reasons for Decision in Allard v. Canada correctly noted “a connection between the restrictions to access and the need for patients to obtain their medical marihuana from illicit sources.”
What Justice Phelan actually said was: “Although dispensaries were not a focus of the parties’ submissions, I find (her) evidence to be extremely important as dispensaries are at the heart of cannabis access. Particularly, she states that with the pronouncement of the proposed regulation, consultation was denied and a number of dispensaries closed in 2012 and 2013 due to the potential that the new system would not serve their membership. However, in March 2014, the number of dispensaries was estimated at 36. Over the last year, this number has increased exponentially and is now estimated at around 103 across Canada.
Although not legal under any past or previous medical marihuana regulations, current trends in dispensary growth suggest a connection between the restrictions to access under the MMPR and the need for patients to obtain their medical marihuana from illicit sources.”
The Task Force on Cannabis Legalization and Regulation recognized that, “it is not uncommon for patients to spend hundreds or thousands of dollars each month in order to acquire a sufficient supply of cannabis.” They also correctly pointed out the unfair taxation of medical cannabis. This was prior to the adoption of an additional $1/gram tax. Not many Canadians have ‘hundreds of thousands of dollars’ that they can spend on medication if needed.
- The 2002 Report of the Senate Special Committee on Illegal Drugs found that action should be taken to support and encourage the development of alternative practices, such as the establishment of compassion clubs.” And that “The practices of these organizations are in line with the therapeutic indications arising from clinical studies and meet the strict rules on quality and safety.”
The petition goes on to ask the government to:
- Take action on the 2002 Senate Committee Special Committee on Illegal Drugs recommendation to “support and encourage the development of alternative practices, such as the establishment of compassion clubs.”
- Undertake a full review of the current state of medical cannabis access, from availability and access, to cost and coverage, to post-legalization enforcement.
- Include the organizations that inspired and impressed our Senate and our Courts in this review.
- Grant exemptions to these medicinal dispensaries, their patients, and their suppliers while this review is on-going.
There is no reason this recommendation should have been ignored by successive governments for as long as it has. If compassion clubs are distasteful, then alternative practices should be explored.
There is no reason patients should not have been a priority when legalizing cannabis for adult use. The issues are clearly poorly understood by regulators at all levels of government, as are the impact their policies have on patients. The Task Force recommended both monitoring, and reviewing the medical access rules and regulations, and we contend it is past time this work be undertaken.
While it may seem difficult for those unfamiliar with the nuances created by the government’s continued refusal to call cannabis a medicine to tell the difference between recreational and medicinal dispensaries, or to be arbiters of which are medical and which are not, we contend that their patients know. Their communities know. Those government officials that have visited could tell. It is not difficult once you see it for yourself, and while these organizations are still operating it is the optimum time to inspect and study these establishments and learn from them.
Despite all the progress made on the issue of cannabis’ reintegration into mainstream society, in many respects, and for many patients, they are right back where they were when the Senate Committee toured dispensaries for their report in 2002. They are operating under threat of enforcement while their patients live in fear of being cut off of from medicine that helps them.
Enforcement alone does not work. Unless and until the underlying issues of patient access are effectively addressed, the conditions that lead to the formation of Compassion Clubs around the world have not changed. Even assuming enforcement could work on at least brick-and-mortar stores (it doesn’t: https://news.lift.co/dispensaries-evolution-enforcement-history-failure/ but assuming it does), logic implies the only thing it accomplishes is making it harder for patients to access medicine, and harder for them to hold their providers accountable.
These establishments should be looked to, as the Senate recommended in 2002, as a model for safe, affordable access, and should immediately be protected by Ministerial exemption, with exemptions lasting as long as it takes for the government to properly review both licit and illicit medical access.
Currently, the petition is awaiting MP Support. More information will be shared as it becomes available.