Locked in Litigation

Canadian Lawyer John ConroyCanadian Lawyer John ConroyBefore Cheech and Chong, Bob Marley, Bob Dylan, Lenny Bruce and the Beats -before them all, Doukhobors in southeastern B.C. were into pot. The transplanted Russian pacifist Spirit-Wrestlers weren’t getting high and giggling so much as they cultivated cannabis as a folk remedy and soothing tea.

They knew what many ancient peoples and cultures recognized. Long before governments in the last century criminalized and banned the cultivation, possession and sale of marijuana, the weed was renowned from the great steppes of Asia to the breadbasket of the Mediterranean for its medicinal properties -salve for whatever ailed you.

Marijuana has been part of the Chinese pharmacopoeia for millennia. And with the rise of AIDS, wasting diseases and myriad cancers at the end of the last century, thousands rediscovered its therapeutic aspects only to find the anti-pot prohibition also made a crime of their relief. A doctor can prescribe methadone and a host of opiate-based narcotics or similar drugs, but patients are denied access to a relatively benign plant largely because of fears surrounding its legalization.

In the 1990s, the seriously ill and dying began fighting for a legal exemption to the criminal law, demanding the right to obtain whatever balm they might from marijuana without fear of prosecution.

Two decades later, the litigation continues -there are numerous cases before the courts as patients clamour for easier and broader access to their medication of choice and the government plays deaf despite its legal losses.

In the most recent case, Matthew Mernagh -an Ontario man suffering from fibromyalgia, scoliosis, seizures and depression -maintained he couldn’t get his medication and was facing criminal prosecution because the program didn’t work.

Ontario Superior Court Justice Donald Taliano listened to him, as well as patients from across the country, and found their complaints justified.

He concluded legitimately sick people cannot access medical marijuana through appropriate means and must resort to compassion clubs or the street corner, risking arrest and criminal charges.

While Health Canada’s testimony about the program was not “wrong or intentionally misleading,” Justice Taliano preferred the evidence of the sick, the dying and the independent experts.

On April 11, he ruled that unless the government addressed the legislative flaws within three months the criminal law would be struck down.

But Ottawa has appealed, so patients’ complaints remain unaddressed.

There is tremendous political resistance to implementing a workable medical program because it will make enforcement of the criminal law all but impossible. For the government and police, medical pot is a Trojan horse for legalization, given the expected demand for what its champions say may be a new Aspirin.

If cannabis is accepted as stress relief, menstrual cramps and the ever-lengthening list of ailments it supposedly soothes, most recreational users could then claim they are patients.

That is why the government has balked time and again at loosening the regulations.


Fraser Valley lawyer John Conroy says federal prosecutors and bureaucrats are defending an unworkable status quo. He hailed the Ontario ruling and thinks it may prompt change.

“After 40 years [of fighting for marijuana legalization],” he laughed, “I expected change to come when I was much younger.”

Conroy led the final, failed over-the-top charge to overturn the 90-year-old, anti-cannabis criminal law by recreational users. But that died in a 6-3 decision from the Supreme Court of Canada in 2003.

The high bench supported Parliament’s right to enact without debate in 1923 the consolidated Opium and Narcotic Drug Act, which criminalized possession of pot, or “marihuana” as it is known legally.

After that decision, the only legal issue to be resolved around cannabis was the nature and extent of an ailing individual’s constitutional right to access given its therapeutic value.

It was one thing to tell the proverbial Big Lebowski he had no right to smoke pot because it enhanced bowling and munching Nachos, but what about a wasted AIDS patient who needs it to quell nausea? Pro-marijuana arguments mounted from a health context are much more persuasive and compelling. Rather than sparking a laugh, they draw at heartstrings.

Over the last decade, the medical marijuana forces have won time and time again in the courts. Nevertheless, the federal government has responded glacially to the judicial prodding, primarily because it always follows the U.S. lead on drugs -Canada banned pot due to a racist anti-Mexican campaign in America in the 1920s. Up until the 1950s, only a handful of charges had been laid across the country.

On this issue, Ottawa walks in U.S. footsteps.

The California Compassionate Use Act of 1996 was the world’s first medical marijuana law allowing “seriously ill” patients access to the illicit drug -without fear of arrest and imprisonment -on the recommendation of a doctor.

Hawaii was next, and a dozen states followed suit, even though in 2005 the U.S. Supreme Court said American federal law enforcement agencies could prosecute despite state-exemption laws.


Until President Barack Obama took office, the U.S. federal government insisted there was no such thing as medicinal cannabis. Obama said that would change.

“If it’s an issue of a doctor prescribing medical marijuana to a glaucoma or a cancer patient … really, there’s no difference between that and the doctor prescribing morphine or anything else,” he said shortly after his election.

Obama wasn’t willing to spend “political capital” on marijuana reform, but neither would he waste “Justice Department resources to circumvent state law.”

But as more states move to establish medical marijuana programs and discuss issues such as reciprocity (allowing a patient from one state to buy marijuana from a dispensary in another), the regulation of largescale farms and big-box stores devoted to selling grow operation equipment, the White House has grown more and more uptight.

The staggering economic potential of medical marijuana is driving change quickly -for instance, Oakland’s Harborside Health Center, the biggest of the California’s numerous dispensaries, has an estimated $22 million in annual sales.

Even the most liberal President in memory has grown wary: Is it too much, too fast?

Recently, his Department of Justice sent letters with various warnings to officials in California, Colorado, Montana, Rhode Island and Washington State. The U.S. attorneys said they now would consider civil or criminal charges against patients even if they had state exemptions and companies supplying them.

The memos led Washington State Gov. Chris Gregoire to shy away from a proposal to create licensed marijuana dispensaries on the other side of the Peace Arch. Scores of state-licensed medical marijuana providers now have been raided nationwide under the Obama administration. Why the about-face?

The U.S. Attorney for Oregon told reporters the medical program was a “train wreck” and that he was skeptical the majority of people obtaining pot actually need it.

Attorney Dwight Holton said California, a state of 37 million, has 46,000 pot permittees compared with Oregon’s 39,000 -which is about one per cent of that state’s population of 3.8 million. He said people who are suffering from lifethreatening illnesses should have access, but that the number of registered medical marijuana patients was alarming.

“You can get it for pain and nausea,” Holton said. “I have pain. I’m 6-5, and I fly in planes, in coach class. I don’t think they had me in mind when they passed this.”

Los Angeles DA Steve Cooley wants to shut down all the dispensaries to prevent what seems to be looming de facto legalization.

Medical marijuana hit the Canadian legal radar in July 2000 when the Ontario Court of Appeal issued the first ruling linking the constitutional validity of the criminal law to the existence of a medical exemption protecting patients’ rights.

An epileptic who could only alleviate his suffering with marijuana, Terrance Parker argued the cannabis prohibition violated the Charter of Rights and Freedoms because it did not respect his right to medication.

The court agreed the law must be thrown out or amended. But the ruling was suspended for one year to give Ottawa a chance to respond.

Exactly one year later, the federal government introduced the Medical Marihuana Access Regulations, and Canada became the second country in the world with a governmentrun cannabis health program.

The regulations created an exemption to the criminal law allowing approved patients to possess and grow their own cannabis. It also exempted gardeners to grow pot for approved patients, established rules for how many plants could be grown, and allowed for site inspections and criminal-records checks.

At the same time, the government also awarded Prairie Plant Systems of Saskatoon a contract to grow pot to sell to qualified patients.


From the start, however, doctors dragged their feet collectively when asked to approve patients. Despite a body of research demonstrating the efficacy of cannabis, it is not the type of medicine with which allopathic physicians are comfortable. Smoking, the main contemplated way of consumption, also made them cringe, but Ottawa made no provision for extracts such as oils and edibles.

The Canadian Medical Association strongly recommended its members not participate and warned they could be at professional and legal peril. The Canadian Medical Protective Association, the profession’s collective legal defence fund, similarly cautioned its 60,000 members -about 95 per cent of practicing physicians.

Despite taking an oath to do no harm, they were being asked to prescribe and endorse a largely untested and unapproved drug without any safeguards.

By far, the vast majority of physicians have refused to participate in the program.

On top of that, many patients thought the government’s pot was sub-par, some couldn’t afford the cost, sick and dying people were waiting far too long for the bureaucracy to process their paperwork …

Jeannine Ritchot, Health Canada’s director of the bureau of Medical Cannabis, told the Ontario court in Mernagh’s trial many of the problems had been resolved and the wait time for an exemption was only six weeks.

Ontario Justice Taliano said her evidence was “neither convincing nor credible.”

He said the doctors’ broad refusal to participate in the program is “a perfect complement to Health Canada’s policy of maintaining a tight, almost miserly control over the distribution of marijuana.”

The numbers alone expose the failure: Based on compassion club estimates, as many as one million people across Canada could benefit from the therapeutic properties of cannabis. After 10 years, the government program serves perhaps 10,000 at most, according to the most recent figures posted by the department, less than one per cent.

The illegal compassion clubs serve far more in part because they provide a menu of cannabis products and strains compared with the official singlestrain. Plus, most don’t demand to see a federal exemption; a doctor’s note will suffice, sometimes less.

Conroy says you couldn’t have designed a worse system. Nothing accords with common sense. The government determines how many plants you can grow based on a grams-per-day dosage without any reference to varietal potency, how much usable pot various strains produce, and other concerns.

Some cannabis plants, for instance, flower and mature as dwarfs, harvestable without growing above a foot-anda-half; others flourish like sixfoot-plus Christmas trees.

Then there are questions about the potency -those with high THC content compared with those with a lower level of the chemical that gives pot its kick.

“The regulations don’t take into account the size of the plants or the number of lights, all of these sorts of things,” Conroy explained. Nor do they take into account what to do when you end up with far more than you need or are authorized to possess.

“The transition between one crop and the next doesn’t seem to be properly allowed for. There are lots of problems leading to excessive amounts that growers are supposed to throw out.”

The RCMP say too much of that excess is making its way onto the black market, and the force regularly raids legal growers over reports they are over-producing.

A few years ago, the Mounties shut down the Victoria Island Compassion Society’s grow operation, and recently raided the North Island compassion club. As a result, lawyers have been litigating for patients and on behalf of compassion clubs, which want to legally provide cannabis so patients don’t have to learn to hoe, buy the government’s swag, or frequent street dealers.

“The main issue is supply,” Conroy said. “That’s the elephant in the room. Marijuana or cannabis seems to be the only drug that if your doctor approves your use, it still takes you six months or more to fill the prescription [depending on waiting times for an exemption and the growing season for the plants].”

He had a client who had a prescription from his doctor to use marijuana, had applied to Health Canada for an exemption, and had begun to grow what he hoped would be his medicine. But a month before Ottawa sent him a permit he was busted and charged with cultivation. His case is before the courts.

The program also has given rise to a new passel of legal issues, such as workplace litigation over approved medical users failing urine tests and related suits. Should teachers with a medical permit be allowed in classrooms, lawyers in a courtroom? Can a legal patient drive a car while smoking their medication?


The government’s response to the push for medical marijuana has been slow-footed, and appears cruel and unusual to some judges. In 2007, the Ontario Court of Justice said Ottawa hadn’t drafted the law properly and medical exemption was inadequately worded. The government diddled.

In Sfetkopoulos v. Canada, on Jan. 10, 2008, the Federal Court struck down the regulation prohibiting a producer from growing for more than one person. The government shuffled its feet. How about two? Three?

In August 2008, the federal court of appeal affirmed Sfetkopoulos, but tight growing regulations remain, farms and largescale production outlawed.

Still, the federal government maintains it is meeting its constitutional responsibility by providing access to marijuana. Health Canada says there is no onus on it to market the drug or educate doctors.

Eric Nash, a Vancouver Island-based consultant who has long lobbied for a commercial grow industry, testified in the most recent Ontario case involving Mernagh and is sanguine, notwithstanding that public stance and the appeal.

“Current federal government strategy meetings are redefining the future of cannabis,” he said after participating in private talks afterwards with senior officials. “The meetings are productive, addressing issues of public health, safety and security, reasonable access, examining overall costs to the government, and creating cannabis industry opportunities.”

He is optimistic because he believes time is running out for Ottawa.

The courts are doing a slow burn over the federal decision to litigate rather than fix the medical program, and others are complaining, too.

Municipalities are up in arms at what they consider the irresponsibility of urging thousands of patients to turn their homes into grow operations.

“I think the problems are overblown but genuine, to the extent of damage to houses by mould and things like that,” Conroy acknowledged. “Some people grow it well; some don’t. The identification of grow ops that then leads to some people ripping them off because they’re easier to knock over than banks is another problem you don’t want in a residential area.”

Individuals should still be allowed to grow small amounts for medical purposes but, like Nash, Conroy thinks large operations should be established in agricultural or industrial areas subject to bylaws and zoning regulations.

Marijuana should be distributed through pharmacies, also to normalize it like other drugs, Conroy believes.

“Doctors prescribe all kinds of other drugs that are far more serious in terms of impact and sideeffects than cannabis. But the response of the federal government has been intransigent and raises a lot of cynicism and skepticism about their intentions with relation to the entire program.”


Kirk Tousaw, one of the upcoming generation of lawyers, also thinks a sea-change is occurring. “The Ontario decision represents a critical turning point for ensuring access to medicinal cannabis,” he said.

“Patients and physicians have been telling the government for years that the program was not working. The decision validated these complaints and, unlike patient concerns, can’t be ignored by Health Canada.” The weight and force of the judicial rulings is overwhelming Ottawa.

“The system of personal and designated production is under constant attack,” Tousaw said. “There’s marginalization and discrimination from police and municipalities, most notably in the Lower Mainland of B.C., and the courts are fed up with that.”

He explained that when producers try to meet bylaw and zoning requirements, they are greeted with hostility and outright refusals to issue permits -even when they have reports from licensed contractors and engineers.

“I am currently litigating a human rights action against the City of Surrey in one such case,” he said -and there are more than 2,000 licensed producers in the province. “Health Canada should be strongly considering licensing the existing [compassion club]dispensaries as sources of supply. Bring them into the light instead of forcing them into the shadows.”

He noted there are other cases before the courts attacking Health Canada’s continuing restrictions on grow-operation size and the apparent arbitrary, illogical ban on extracts and edibles.

Patients should not be required to grow their own medicine, rely on a friend to grow their medicine or deal with the black market, Tousaw said.

Nor, he said, should doctors be forced to prescribe a drug whose dosage levels are unknown, whose effects are unknown and whose long-term outcomes are unknown. The government should also allow naturopaths and doctors of traditional Chinese medicine, both of whom already have limited prescription writing authority in B.C., to approve cannabis treatments, which would eliminate the problem of using solely medical doctors as gatekeepers.

“Tinkering with the rules, ignoring patient concerns, listening to law enforcement fearmongering rather than legitimate suggestions for improving the system,” Tousaw paused, “if that trend continues, we can expect more litigation.”

And that’s exactly what is on the horizon -because the solution seems to lead exactly to what neither Washington nor Ottawa want: The end of the criminal prohibition.

– Article originally from The Vancouver Sun.