CANNABIS CULTURE – Last month, a Canadian federal court granted an injunction against a ban on patient medical marijuana cultivation and designated growers under new federal regulations.
It has been a tumultuous ride for more than 40,000 federally recognized medical marijuana patients, and it doesn’t seem like it’s going to be over anytime soon.
In June 2013, the Canadian government announced a change to the federal medical marijuana program, ending the Marihuana Medical Access Regulations (MMAR) and stripping patients of their right to grow their own cannabis or designate a grower. Instead, the new system, the Marihuana for Medical Purposes Regulations (MMPR), would give them only one option: buy mail-order dried marijuana from unknown, large-scale operations known as the Licensed Producers (LP).
As the deadline to the transition loomed over the heads of many concerned and confused patients, BC lawyer John Conroy and the Allard vs. HMTQ injunction stepped in, successfully stalling the ban on patient cultivation days before the planned switch over on April 1, 2014.
The delay took a tremendous burden off of the shoulders of many individuals already fighting to stay standing tall while living with illness. But it left them with new questions and uncertainties about what the future holds for their medicine, and for themselves.
Who is Covered Under the Injunction?
“It was clear to me and the government lawyer that if you have a constitutional challenge and you affect the rights of one, you affect the rights of all,” John Conroy told Cannabis Culture. “There is no doubt in my mind it applies to all.”
This is a position supported by a stay of proceedings in 25 other related cases in anticipation of the results of Allard vs. HMTQ. Days after Conroy’s success at the federal level, lawyer Kirk Tousaw appeared in BC Supreme Court on behalf of three patients to launch another constitutional challenge against the MMPR. The case was immediately stayed, pending the Crown’s decision on Conroy’s case.
“I am very pleased,” Tousaw wrote on social media. “[W]e were able to box in the government and confirm that the Allard injunction applies to more than just the individual plaintiffs in the case.”
How does Health Canada Interpret the Ruling?
The injunction ruling was initially understood by counsel, patients and the general public as allowing anyone who had personal possession, production or designated grower licenses on September 30, 2013 to continue carrying, cultivating or providing medicinal cannabis. But before the relief could set in, Health Canada put its foot down on any celebrations, placing themselves clearly on the opposite side of those concerned with patient rights.
On April 2, “Health Canada put their opinion with respect to the Order on their webpage,” Conroy said. “It appears that only patients with a ‘current’ Authorization to Possess on March 21, 2014, the date of the order, are covered for possession even if they had valid production licenses as of September 30, 2013. We will either go back to the judge or cross appeal on this issue.”
“In the interim,” he advises, “it is my opinion that their ‘possession’ can be covered by obtaining authorization from a doctor under regulation 53 of the Narcotics Control Regulations.”
How is Personal Possession Affected By the Injunction?
The new MMPR restricts personal possession to 150 grams at one time, and this is not reversed by the injunction. Conroy says that “the possession limit for your over 5 grams a day person is going to be over 150 grams under the MMAR, but now you’re limited to a maximum of 150 grams that you can have on your person when you’re out and about [under the MMPR].”
Can You Still Apply for a New Personal Production License?
Hopeful applicants are out of luck. No new personal production licenses will be issued in the future.
Going forward, people who want to join the federal medical marijuana program “have to go to a doctor and get a medical document under the MMPR, and then see if they can afford [cannabis]from a Licensed Producer” says Conroy.
He encourages interested individuals to try out the products offered by licensed producers “even if they just do it on a one time basis to check it out. Then we’ll have some history, some evidence of just how that process is working or not working.”
What Happens to MMAR Patients Covered Under the Injunction If They Sign Up with a Licensed Producer?
“Unfortunately, there are a number of people whose designated grower quit or the landlord said no more or these sorts of things and so they’re in this awkward sort of situation where they can’t really make any amendments or move forward,” Conroy said.
“I would certainly encourage anybody who is stuck in that situation to try and register with an LP and test out their product. You don’t have to sign up for the rest of your time with them. I think you do have to hand in your original document to do it, so make sure you keep a certified copy.”
Leading up to the MMPR, some patients were reluctant to register with an LP because they didn’t want to hand in their Authorization to Possess. It turned out to be a good hand to play, because at least for now, those patients are again covered by their paperwork, as long as it was valid on March 21, 2014. Like many things in this transition period, a little bit of time can make a lot of difference. Besides, the authorization document will still allow patients to register with the LPs into 2015.
What About Changing Your Production Site Address?
“I’m sorry. You can’t move your site at this point” reports Conroy. “People have to remember that this is an interim, or an interlocutory order, it’s not a trial order. Hopefully at trial, we’ll be able to get a decision that covers this problem. I know [these patients and growers]are stuck in the middle at the moment. We may have to try to do something different for them.”
What Happens Next?
“There’s no cookie cutter for this sort of thing,” Conroy said. “It will depend on what the judge’s decision is. Is it just a question of law, or is it a question of fact? These sorts of things matter in terms of the jurisdiction.”
Depending on how it plays out, the crown or the defense has the option to appeal at the Federal Court of Appeals. From there, either party can ask the Supreme Court of Canada to grant leave, and if approved, Allard vs. HMTQ will be heard at that highest level of authority.
The timing is good. With the 2015 federal elections fast approaching, this is a great opportunity for patients and their supporters to bring the issues surrounding safe and affordable access to medicinal cannabis to the forefront of public and political discussions. But more than that, this is a chance to give voice to the idea that marijuana is a legitimate medicine, and put to rest once and for all the idea that patients are just people looking to get high on the weekend.
“I have received so many emails, phone calls and letters just describing how this has been effective for so many people,” recounts Conroy. “People with serious brain damage from various accidents, people living with chronic pain. It’s mind blowing, the extent to which they’ve been able to get off of other narcotics, other types of medications, and the degree to which their families can’t believe that they’ve suddenly got somebody back who was almost a vegetable. These are really incredible stories.”
“We’ve got patients now who are willing to come out and talk and tell people their stories and this is fundamentally important. You know, it’s one thing to listen to a lawyer go on and on about the law and stuff. It’s not worth that much, compared to a genuine story from a patient.”
To stay updated on Allard vs. HTMQ case, visit John Conroy’s website.