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Focus: Medical marijuana continues to be source of litigation

Change to new regulatory regime among issues sparking legal challenges
|Written By Shannon Kari

There has been one constant since the Ontario Court of Appeal struck down the prohibition against possession of marijuana for medical reasons in 2000: the subsequent rules imposed by the federal government have been subject to repeated court challenges.

Litigation around medical marijuana has heated up ever since the government changed the rules aound who can produce and supply it. Photo: Gordon Swanson/Shutterstock

The courts have found the regulations that govern medical marijuana to be invalid on more than one occasion and there are two current proceedings before the courts that could again require the federal government to go back to the drawing board.

A Federal Court judge in British Columbia is presiding over an ongoing challenge to regulations that require those authorized to possess medical marijuana to buy from approved producers in the private sector. Late last month, the Supreme Court of Canada reserved its decision in an appeal from British Columbia on whether the rules permit only cannabis in dried form for medical marijuana patients.

The result is ongoing uncertainty in an area where the government has rarely addressed the complaints of the medical marijuana community without a court challenge. At the same time, it’s a field where a number of private sector investors are eagerly trying to get into what they see as a growth market with even Health Canada officials estimating there could be at least 400,000 legally registered medical users by 2024.

To add to the complicated legal landscape, a Tax Court judge ruled last year that even approved medical marijuana is subject to the goods and services tax because it’s more like an over-the-counter product than a prescription drug.

Meanwhile, a new medical marijuana policy adopted earlier this year by the College of Physicians and Surgeons of Ontario states that approving cannabis use for a patient is equivalent to a prescription.

For both people who are registered medical users and individuals and companies seeking to grow cannabis, it’s a confusing time. “I sympathize with the patients,” says John Fowler, a lawyer and president of Supreme Pharmaceuticals Inc., a Toronto-based company seeking a production licence.

“We have had Band-Aid solutions,” he adds.

The Federal Court trial, which began in February in Vancouver, stems from an action launched by Neil Allard and three other individuals legally authorized to possess or produce marijuana under the marijuana medical access regulations that the government repealed in March 2014. The new framework, the marijuana for medical purposes regulations, requires users to obtain their medicine from a licensed producer.

The new framework doesn’t allow patients to produce marijuana for themselves or obtain it from an authorized caregiver as was possible under the previous regulations.

The plaintiffs obtained an injunction last year, which the Federal Court of Appeal upheld last year in Canada v. Allard 2014.

The ruling permits licensees under the old scheme to continue to produce marijuana for medical patients until the constitutional challenge makes its way through the courts.

The Federal Court proceeding has heard evidence so far that the costs for patients could be four to five times higher if they have to buy from private producers as the new regulations don’t regulate price. As well, certain strains of cannabis they have developed to deal with their symptoms wouldn’t necessarily be available.

In the meantime, Health Canada is continuing to slowly approve new producers for the medical marijuana market under the new regulations.

Health Canada had received almost 1,200 applications for a production licence as of the end of 2014, according to an affidavit filed in the Federal Court proceeding. It receives about 15 new applications each week. So far, Health Canada has issued production licences to 23 companies.

These companies have registered nearly 15,000 clients, says Health Canada, and had sold about 1,600 kilograms of medical marijuana by the end of last November. The court documents also suggest the price can vary wildly from less than $2 per gram to as high as $15 per gram, although some companies offer discounts to low-income individuals.

Fowler, whose past experience was within the medical marijuana community, says he understands the suspicion towards the private sector.

“It will take some time before people transition,” says Fowler. However, he suggests the old approach was a “broken system” that didn’t serve patients well with many of them having to obtain their medicine on the black market.

“We have a friendly black market in Canada. But there is no quality control,” says Fowler.

“The quality of medicine will improve dramatically over the next few years,” he suggests, citing the prospect of private sector competition.

His publicly traded company has a large property in southwestern Ontario and a management team that includes a horticulture professor, business executives, and people with ties to the medical marijuana community.

Fowler agrees that securities and health regulators need to have a strong oversight role to ensure the burgeoning industry has the confidence of investors and medical users. “The more we regulate, the more credibility there will be in this industry and the better it will be for patients,” says Fowler.

Jennifer Thorne, a defence lawyer in Kelowna, B.C., who also advises clients seeking production licences, says the best regulatory framework would treat marijuana similarly to other prescription products available at a pharmacy. “It should be dispensed in a medical setting, where you can consult with someone who knows the product,” says Thorne.

In addition to deciding exactly who can produce for the medical marijuana community, there’s still the unresolved issue of what form cannabis must be in to gain the legal approval of the federal government.

The Supreme Court of Canada heard arguments on March 20 in an appeal by the federal government over a decision that found a prohibition on oral or topical cannabis products, such as oils, was unconstitutional.

The B.C. Court of Appeal ruled 2-1 last year in R v. Smith that the restriction was arbitrary and there was no evidence that cannabis use in edible products, teas or oils presented any greater a risk than smoking dried marijuana.

One of the interveners at the Supreme Court representing three HIV/AIDS organizations argued the onus is on the state if the use of a therapy might attract criminal sanction. “If a patient sincerely believes that the use of an alternative unapproved drug therapy might alleviate their pain and suffering, section 7 of the Charter prevents the state from criminalizing that patient’s choice of medication,” wrote lawyer Paul Burstein in arguments filed with the court.

The federal government disagrees. There’s no right under the Charter of Rights and Freedoms “to obtain or produce drugs based on a subjective belief in their therapeutic value,” wrote Paul Riley and Kevin Wilson, two government lawyers involved in the case.

The Supreme Court’s decision in Smith may turn out to be the most significant court ruling related to medical marijuana because it could significantly expand the industry, Thorne suggests. “If we are talking about a medical product, it should be available in the form that is most effective,” she says.

  • Stage 4 bladder cancer

    Dale wright
    Having been told I have stage bladder cancer, naturally I was devistated. Had surgery then had to be treated by 35 rounds of high strength radiation. I lost a lot of weight to the tune of six weeks 53 lbs. The docs treating me decided do to my loss of weight and my ability to take pain medication without serious side effects over a year and a half. Do to last round of medical tests I'm CANCER FREE. AFTER ALL ALERGIES TO EVERYTHINK IM STILL HERE TO DISCUSS MEDICAL MARIJUANA IS VERY POSITIVE
  • decriminalize Nature

    Tommy McGraw
    This is a very good article on how to legalize a plant. Perhaps the fact it was illegal in first place made way for the development of benefits of the plant. If taxes and minors drive this legalization movement tax the store that sells it appropriately not the plant, and minors can get liquor or beer mary jane is just right around the corner from brother sister parents.

    Lastly Holland I think is thinking of limiting cannabis thc content to 15%. If legalization of cannabis can lead to governmental regulations on cannabis cultivation would independent growers still be allowed to explore new heights with the plant like the harlequin strain for high cbds?
  • upcoming trial

    lonnie anthony
    can anyone confirm the actual trial date of the upcoming hearing that pertains Health Canada and licenced growers
  • Good neighbor

    S C Wells
    As a legal grower I have taken the time to speak with my neighbors and invite them to check it out. No matter who you are you should respect the fact that we all have the right to enjoy our private lives and our homes and act accordingly. After reading the above posts one can see that many are quick to offer uneducated opinions and in such I tend to disregard them. This is the first time in 44 years of involvment with marijuana that I've heard any reference to vibrations. Many people have already made a decision regarding this matter and in my experience the nay sayers are generally very poorly informed/educated and it's always a pleasure to debate with these types and expose them.
  • Tammie A
    If they are licensed to grow than it should be like industrial\agricultural area. I have one right next door to me and the smell is gross but the fire risk to us and the entire block of houses. These grow-ops use alot of power and produce alot of heat and flammables. who is protecting the neighbours???
  • Dave McKeen
    We are talking about two different things I think. MMAR patients are only growing for themselves. There would only be a couple of plants present. A Grow Op is a business providing for customers. They would require an large space while the patient just needs a closet or a single room usually. As to your fire risk, no LEGAL grow has had a fire and most drug fires have been in home meth labs and lumped in with Cannabis. Call the police if your not sure if the grow is legal or not.
  • Ken neth
    'A couple of plants' is probably what Health Canada envisioned with MMAR. You can read the court documents on John Conroy's website. The proponent has close to 200 plants. No wonder its out of control.

    Fire risk is there. Even if the grow is legal the machinery in the one in my neighborhood is not installed properly even if he did get permits (and I don't know if he did). Thats why I'm getting infrasonic noise and vibration. So the fire risk is greater than normal.
  • True dat

    Tommy McGraw
    Some MMAR patients seek pay as you go doctors there is web site for some cities where Doctors are listed who will do the paperwork for MMAR and/or PUPL with their fees listed. i.e. cash grab. Whether or not their ailment meets the criteria for medicinal use. The desire to profit is present with the recreational demand.

    In my knowledge the PUPL applicants use their licenced grow as a second income. Further boast about how much they grow and sell/trade with other PUPL individuals or recreational users.

    These PUPL users possibly discriminated legit medicinal grows to now have no choice but to buy from dispensaries like in Vancouver.

    In my opinion this took away from medicinal users ability to engage with the process of not only the patience of the growing period but the ability to cross cannabis strains for their medical need(s)
  • Ken neth
    There is an MMAR grow op in my neighbourhood. The City will not or is not competent to investigate statutory nuisances caused by the grow op.

    Wood frame houses were never intended to be used as industrial scale grow ops.

    The courts have caused one hell of a bureaucratic bungle where there is no rule of law governing the grow ops. The rights of individuals to grow marijuana cannot be allowed to continue to cause harm to the rest of us.

    Shut down MMAR grow ops NOW.
  • J. Stadey
    You obviously have experience with this issue. I know first-hand how much the courts (and "Health" Canada) have bungled this issue. Not all, but I would bet most of these grow-ops are people that are making buckets of money with a piece of paper (licence) that essentially says screw you to everyone else. If someone feels they need this product, fine, but I think that's pretty rare.
  • Dave McKeen
    Strangely enough, I believe the majority of licensed patients growing their own are not interested in breaking the law and for me. I can't produce enough to treat my own health issues let alone sell to anyone else. And I can't find anyone with extra either. Among patients, the biggest complaint is the fact that Health Canada and Harper are forcing us to break the law either in how we use the Cannabis and/or where we can afford to buy it from. We need something better than the placebo strength product Health Canada was providing. Black Market is less dangerous than they claim because they want to stay in business and that takes product worth buying in the first place. I need a DG but can't get or even find a trustworthy one.
  • PUPL

    Tommy McGraw

    "...150 gram possession cap now applies..."

    150 grams is 5 ounces... with a veg cycle of 5 weeks and avg 60day bloom and 3 week cure. Yoour looking at 4 months full cycle. The pupl allows storage to meet not to exceed 150grams. Having 2 separate grows timed accordingly can meet plant limits with seeds or clones.

    Aside from that with a MMAR you have the option to purchase from legal dispensaries or maybe your on some black list prohibiting from you to do so.

    Or Maybe your endorsing the black market production to applaud your involvement in this market. Last I heard fentanyl is being recorded cut with street sold cannabis.

    Black Market as you say in my opinion is profit driven often lacking oversight to produce clean organic smoke but to produce as much quantity for profit.
  • Ken neth
    It doesn't matter that they are not interested in breaking the law. Interfering with the enjoyment of someone else's property is criminal mischief even if the activity causing the nuisance is legal. And even when that is pointed out to the grow owner, in my case anyway, they are saying 'screw everyone else'.
  • Dave McKeen
    Ken neth, your not making any sense. You appear to be grasping at straws. Are you supporting Medical Cannabis or have you accepted the Governments deliberate miss-information? You also appear to be willing to paint everyone with the same brush. How does my growing and using my medication interfere with someone else's enjoyment of their property? The only reason it was made illegal 80 years ago was because it interfered with big businesses profits. Since the aroma molecules of the Cannabis plant contain bronchial dilators that work better than any inhaler for sick people, the plant smells fantastic. How did the issue cause you harm or offense? Your claim is as valid for the sick who have other people dictating that they can't use the only treatment that works without slowly killing them.
  • Ken neth
    I am experiencing a statutory infrasonic noise nuisance that has been driving me out of my home. I sleep on the basement floor, sleep outside of my house, and go camping to escape the noise effects and the vibration that it causes in and around my house.

    Yeah it means painting everyone with the same brush. Too many people that have no respect for others have ruined it for you. After my ongoing problem, which will mean going to a prohibitively expensive court case to resolve, I don't care if you can't grow your own; I don't want marijuana grow ops in my neighborhood.
  • David Ferkul
    There is an MMAR grow op in everyone's neighborhood. If Health Canada would have inspected each operation like they were supposed to, this would be a non-issue.

    Anyone can legally grow 16 kilograms of tobacco on their property, so what's the difference with cannabis?

    The 2 regulations should and will co exist. Health Canada just needs to do their due diligence and inspect like they were suppose to.
  • Dave McKeen
    They are dismissing subjective belief but how do they dismiss people who have reduced their use of Pharmaceuticals by anywhere from half to completely because their medical conditions have gone into remission or even possibly been cured outright?
  • Homeopathy

    Tommy McGraw
    Mr. McKeen I am not aware of any occurrence where cannabis has actually cured anything. Homeopathy or herbal practice aides in the human body's performance to recover itself.

    False information about this extraordinary plant's natural uses can potentially be harmful.
  • David Ferkul
    Interesting article, Taking notes throughout, one point stuck out to me the most, the very last sentence "If we are talking about a medical product, it should be available in the form that is most effective"
    That may be in regard to the concentrates and edibles but I feel that is a statement for everyone to read and understand. The black market has made cannabis what it is today. The black market is the reason the plant is so dense and filled with CBD's. If the black market and the gifted botanists didn't make their move illegally, we would be way behind in this industry. They know it best which is why they should be the ones who are allowed to produce it. . .Not the company with the deepest pockets
  • Penny Clipperton
    Error, black market produced cannabis LOW in CBD's, and high in THC. One estimate is that the ideal CBD level to address epilepsy is between 14 and 18 per cent. Difficult to obtain even from licensed producers.
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