Dispensaries Deserve Exemptions

By Ted Smith

Over 100 years ago, pioneers ventured west and north on this continent in search of a precious metal. Risking everything for the lure of fortune, men would head to the hills in the hope of striking it rich. Now, few people make their living searching for gold unless they work for a large multi-national company.
Of course, mining for minerals is entirely different than growing plants, and comparing the two is not easy. However, few can argue that the Green Gold Rush is upon us and how we proceed will affect how the industry works in 100 years.

One major difference between the green and gold rush is the fact gold is a non-renewable resource, and cannabis is one of the most renewable resources. This is essentially why many large industries worked together to eliminate cannabis from the market last century. It is also the primary reason the plant has survived.

Prohibition has created a market built upon the scarcity of the cannabis plant. Since the growing, distribution, and selling of cannabis has potentially severe punishments, prices for the herb have been inflated far above the cost of production. Fear of growing their own cannabis has forced most consumers into purchasing at these inflated prices, or to quit altogether.

Of course, the most important difference is that cannabis can heal many medical problems, prolonging life by preventing disease and helping consumers relax, while gold is often used to satisfy vanity. These qualities attract people to using and growing cannabis despite the legal consequences.

Compassion clubs like the CBC of C started up in the middle of the 1990s to assist patients unable to produce their own medicine, years before any significant court decisions in favour of the medicinal uses of cannabis. A small handful of clubs operated in some major Canadian cities before the Ontario Court of Appeal decision in the Terry Parker case, in July 2000, forced the government to take the issue more seriously.

When the Marijuana Medical Access Regulations were released 10 years ago, most people already working in the field were disappointed.
Instead of regulating local distribution centers, Health Canada gave people the ability to grow their own herb or find a designated grower to do it for them. This was unexpected, as no other medicine authorized for use by Health Canada is grown by patients. While it has been very difficult for most people to get their doctor to sign the forms, this part of the program has been a great success for many patients who have been able to get all of the herb they need to maintain their health.

Despite being left out of the regulations, clubs continued to supply medicine with the hope local law enforcement would turn a blind eye and ultimately the courts would protect us. Raids on clubs in Victoria, Toronto, and Montreal sent a chill through the cannabis movement around the turn of the new millennium, stopping many from opening storefronts and turning their focus upon working within the legal framework created by Health Canada.

Thankfully, the courts have consistently protected established legitimate medical clubs. The absence of a functional federal program has created a legislative lacuna, or gap, that justifies the existence of these organizations.

One of the main reasons the courts have condemned Health Canada’s program has been the restrictive requirements for a patient to gain access to the herb. The process of obtaining cannabis for medical purposes is much more difficult than for any other drug or medical procedure. This was the focus of the recent decision in Mernagh, where Judge Taliano scolded Health Canada for problems patients were having accessing the program.

So it was no surprise when the government announced this summer that the MMAR was going to be revised. Many were caught by surprise, though, at the direction the program is going, phasing out personal and DG licenses by 2014. Instead, according to these proposed amendments, patients will have to order their medicine by mail from commercial producers able to meet Health Canada’s unspecified requirements. It seems little can stop this, except possibly various legal actions.

Again dispensaries were completely left out of the regulations—except not left entirely out of the picture. Select dispensaries were invited to behind-closed-door meetings this summer, being officially considered as stakeholders for the first time. Included in the invited clubs are many who also will be facing Health Canada in court in the next year, after raids on dispensaries began in the spring of 2010. So while the government does not seem interested in licensing clubs, they will recognize them as important resources.

In announcing these new regulations, Health Canada has admitted to several failures in the current program without coming up with a better system for patients. They have failed when it comes to making a program that is reasonably accessible. They also failed to come up with a good means to supply these patients with the medicine, refusing to assist patients to grow the herb and only providing one strain that has less THC, tetra-hydrocannabinol, than most bud available on the streets.

However, Health Canada’s failure is an opportunity for medical dispensaries to shine. Courts should not be able to convict club employees or operators under the circumstances. Several clubs across the country have been raided in the past few years, and it is hard to imagine the courts convicting medical cannabis providers when Health Canada is essentially admitting they have totally failed so far.

When the new program is operating in 2014, it may be more difficult to justify operating outside of the law. However, clubs will continue to supply medicine as long as the legal alternatives are inadequate.
It is becoming apparent to most Canadians that dispensaries should continue to play a vital role in providing medicine, conducting research, and educating patients for a very long time. Many people in chronic pain have never used cannabis, and it is critical for them to visit a club where they can be shown how to consume the herb, i.e. using a vaporizer.

The recent Supreme Court of Canada InSite decision gives us some vision into how established medical cannabis clubs may be able to become legal even if they are not included in the MMAR. While the InSite decision only refers to the issue of medical marijuana once, there are several overlapping legal issues despite the court stressing the differences.

[118] I note that this case is different from Parker, where the Ontario Court of Appeal held that the general prohibition on possession of marihuana was not saved by the availability of an exemption for possession for medical purposes under s. 56. No decision of the Minister was at stake in Parker, and the Court’s conclusion rested on findings of the trial judge that, at that time, “the availability of the exemption was illusory” (para. 174).

Courts do not have the power to write laws or regulations, but they do have the ability to make an order in the nature of mandamus, that is, they can force the Minister to grant an s. 56 from the Controlled Drugs and Substances Act when it is clear that public health would be compromised without such an exemption, and public safety would not be negatively affected if the s. 56 is authorized.

According to the InSite decision, once a facility received an exemption the government would not be able to revoke it unless the circumstances changed. If courts begin granting exemptions from the cannabis laws to club operators, members, staff ,and growers, then Health Canada would be sent a clear message to make the program accessible and fully functional.
For several years, I have thought the s. 56 was how clubs could operate outside of the MMAR until such time as they became part of the program or were phased out by a better system for patients. After the second trial of the CBC of C, in 2005, I began writing to the Minister of Health for an s. 56, partly because I was convicted by a provincial court justice of trafficking cannabis resin for the food and skin products we make and sell. That charge was then dropped before the BC Court of Appeal could consider the matter. My request for a s. 56 was denied.

We asked for an exemption three times and were denied three times, the last by Tony Clements in 2006, each time being told of the legal mechanisms to use and grow cannabis as medicine. Now we have a chance to receive an exemption in court.

On Dec. 4, 2009, Owen Smith was arrested in a downtown Victoria apartment making food and skin products for the CBC of C. He has been charged with possession for the purposes of trafficking THC, the most active chemical in the cannabis plant. A 20 day jury trial starts Jan. 16.

While dried cannabis is authorized under the MMAR, all derivatives (i.e. cannabis resin, THC, CBD, and CBN) remain illegal unless they are synthetic. This needs to be challenged, as whole plant cannabis medicines can provide many significant benefits with few side effects. Cannabis derivatives should be included in the MMAR, allowing patients to legally make their own butter, massages oils, and creams. The only entities who appear to benefit from this exclusion are drug companies.

Lawyer Kirk Tousaw will be calling upon Dr. David Pate to act as our key expert witness. Dr. Pate has extensive knowledge of the active chemicals in the cannabis plant and how to extract them, with so much experience working in the laboratory he could be considered a witness of Health Canada.
We do expect Health Canada to provide at least one expert in cannabinoids and another in policy. This will be critical for both our defense and for the judge to craft an appropriate remedy.

When we convince the judge and jury to give Owen an acquittal, there is a chance the judge will make an order in the nature of mandamus and tell the Minister of Health to grant the CBC of C an exemption so that future similar trials can be avoided. Without such an exemption, club staff are always at risk of criminal punishments that are grossly disproportionate, especially under the new sentencing laws being passed by Harper.

Canadian courts have repeatedly told Health Canada that their program is not working and to make major changes, including the licensing of clubs. The trial of Owen Smith in Jan. 2012 will be no different.

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