Marijuana prohibition ended in Canada on July 31, 2001, but nobody noticed. This is the conclusion that some legal experts are drawing after a close consideration of the astonishing facts.
In the summer of 2000, the Ontario Court of Appeal told the Canadian government to seriously renovate the nation’s marijuana laws. After hearing the constitutional challenge of Terry Parker ? an epilepsy sufferer who uses pot to alleviate his symptoms ? the judges declared the blanket prohibition of cannabis in the Controlled Drugs and Substances Act (CDSA) to be unconstitutional (CC#28, Canada’s med-pot push).
Of particular concern to the court was medical access to marijuana. Since 1999, a small but growing group of people were allowed to grow a few plants for personal medicinal use, through a special process called a “Section 56 exemption.” But the court ruled that Section 56’s were too hard to get, and gave the government until July 31, 2001, to fix the law and allow easier access to medical pot. If the government failed, then the whole law would be struck down, removing pot prohibition altogether.
During the twelve months that the Canadian feds had to change the marijuana laws, a lot happened. A federal election slowed the wheels of government to a baby-kissing crawl. As the July 31 deadline loomed, the governing Liberals quickly threw together some ideas, and bureaucrats worked dutifully to create complex formulas to determine how many plants are allowed to be grown by each patient.
The formula they created allows a patient requiring one gram every day to grow five plants indoors and store up to 225 grams, or grow two plants outdoors and store 750 grams. The formula is based on an expected yield of 30 grams per indoor plant, or 250 grams per outdoor plant.
Yet despite these complex calculations, the government’s new regulations don’t conform to the court’s ruling. This is because it’s now even more difficult to get medicinal marijuana than ever before!
One of the most obvious hurdles to getting an exemption under the new rules is the requirement that all applicants have a recommendation from a family doctor as well as one or two specialists, and to have tried every other conceivable treatment for their condition before they can even apply. In some cases it can take up to a year to see even one specialist. The likelihood that many specialists will have interest in or knowledge of medical marijuana is slim.
It won’t be any easier for patients who already have a Section 56 exemption. Each and every one of them will have to successfully re-apply under the new regulations within six months! Medical users who qualified under old regs might not qualify under the new ones if they can’t quickly find specialists willing to support their applications.
“There’s a good argument that cannabis prohibition ended on July 31,” said veteran Canadian lawyer John Conroy, who is behind some of Canada’s most high-profile legal challenges to pot-prohibition. “The doctor can prescribe all kinds of things that are far riskier to one’s health without having to go to specialist one or two, but for marijuana, you have to prove that all other drugs have been tried and failed? you have to try harder things that could kill you in order to get the softer drug!”
New regs, old story
John “The Engineer” Turmel is not a lawyer, but he is shepherding 11 medical marijuana cases through Canadian courts. Turmel calls them the “Heaven 11.” The cases all involve people with AIDS, MS, hepatitis and chronic pain disorders who applied for Section 56 exemptions from Health Canada and were turned down.
When Turmel convinced the courts to ask Health Canada why officials hadn’t given exemptions to dystonia sufferer Robert Neron and hepatitis C sufferer Barry Burkholder, the ministry coughed up the exemptions rather than answer Turmel’s pointed questions before a judge. It was only through the determined efforts of Turmel that these two people received their exemptions ? and the new regulations didn’t make the job any easier.
“They have made the rules so onerous, that doctors are saying that the new regs have made medical access a joke,” exclaimed Turmel. “Dr John Goodhue ? a doctor in Toronto who has filled out the Section 56 application forms for 30 patients for Health Canada ? said ?this might be a bureaucrat’s idea of a good system.’ But it makes it impossible for patients.”
While fighting Health Canada for exemptions, Turmel has also gotten the ministry to increase the number of marijuana plants that the Heaven 11 are allowed to grow. For example, Robert Neron can now have 54 plants, more than anyone else in Canada. Burkholder can have 22, and Marc Paquette can have 11.
Turmel also plans to argue that July 31 saw an end to prohibition in Canada.
“Every single one [of the Heaven 11]are going to argue the Terry Parker decision,” said Turmel. “The new rules had to make access easier for Terry Parker and those like him, and they did not. They even forgot to give Terry Parker an exemption. They blew it.”
Constitutional exemptions end
Even Terry Parker couldn’t get an exemption from the government if he had to apply under the current regulations. Luckily for him, he doesn’t have to.
“I can’t comply with the new regulations to tell you the truth,” Parker told Cannabis Culture. “But I just got a phone call from Cindy Cripps-Prawak [The director of Health Canada’s medical cannabis access office] and she wants to process my application for a Section 56. I explained to her that I have no doctor to prescribe, according to the regulations. But because of my court case and past history, she has agreed to process the 56. I don’t want to have anything to do with it really.”
Parker’s dilemma attests to the restrictiveness of the new regulations, under which he would have to find a specialist to prescribe medical pot.
“This is good news for Terry,” said Parker’s lawyer, Aaron Harnett, “for the process of making the application involves him returning to neurologists, many of whom have already stated they have no interest in getting involved in this issue.”
So what about the thousands of other medical sufferers seeking exemptions for their herbal medicine? Grant Krieger, who battles crippling MS, argued before an Alberta court that the pot laws were unconstitutional and won. Yet he continues to be arrested, and was dragged down to the RCMP station for pot on July 19, just before the new regulations were announced. Now that the new rules are out, and the police are assuming that the constitutional gap in the law has been filled, Krieger and others are likely to face further persecution and arrest.
Meanwhile, the Vancouver Compassion Club continues to serve its almost 2000 clients without any police harassment, and the BC Marijuana Party has announced the formation of a half-dozen new clubs across the province, with more coming in 2002.
Regardless of what the Liberal government does now, the courts could rule that, because of their unwillingness to let Canada’s sickest citizens use medicinal pot, all Canadians are now free to enjoy the sacred herb.
There is also the question of where all these legal growers are to get seed or clones. There is still no legal source of seeds in Canada, and medical patients newly authorized to grow their own medicine aren’t the only ones looking for a supply of genetics.
Prairie Plant Systems, Canada’s first government-commissioned medical-pot grow-operation in Flin Flon, Manitoba, also encountered difficulty acquiring genetic stock. Marc Emery publicly offered to supply Prairie Plant Systems with seeds from his catalog, but was ignored.
Instead, Health Canada provided Prairie Plant with seeds which the RCMP had seized in unspecified raids. No officials would comment on the true origin of the seeds, but it is likely that they came from one of the raids on Marc Emery seeds, or possibly a raid against another seed merchant.
If the government decides to increase the number of official pot grow-ops, will police be sent out to conduct further raids to acquire more seed stock?
The experiment continues
Despite their problems, the new regulations have led Canada into uncharted fields of cannabis research and development.
In Vancouver, a group called the Merlin Project is getting ready to grow medical pot for local exemptees. Under the new regs, pot for three exemptees can be cultivated at a single location, by a designated grower approved by the government. Merlin Project directors are already growing between 50 and 100 plants at an undisclosed location, while they wait for Health Canada to approve their unnamed growers. If everything goes as planned, the Merlin project will immediately expand to six similar grow homes around Vancouver.
Meanwhile, the Canadian government has commissioned Montreal’s McGill University to conduct an experiment on cannabis’ use as a pain reliever. The study will last one year, and will be the first time cannabis has been smoked in a study researching pain.