Examining the Parker decision…ten years later

By Ted Smith

This summer marks 10 years since Health Canada was ordered to provide access to cannabis to people in chronic pain, by the Court of Appeal for Ontario.

While the use of cannabis as medicine goes back thousands of years, decades of being missing from Western medicine cabinets meant the public’s knowledge of the healing properties of the herb were misunderstood and the nega- tive impacts exaggerated—if not completely fabricated. Beginning in the 1960s, individuals with medical problems started to become vocal about the health benefits they felt cannabis provided. As more people spoke out, interest in the use of cannabis as medicine grew among patients, and a handful of doctors. Progress,however, has been slow.

The big breakthrough in Canada happened July 31, 2000.

Osgoode Law Professor Alan Young proved to the Court of Appeal for Ontario that the most effective method for Terry Parker to control his epileptic seizures was smoking cannabis. The prohibition of the herb violated the Canadian Charter of Rights and Freedoms so long as reasonable provisions allowing for medical use were not available. The government was given one year to produce mechanisms for the legal use of cannabis for medical purposes, or the laws prohibiting the herb would be struck down for everyone.

Prairie Plant Systems won the contract to produce cannabis for research purposes months before the Marihuana Medical Access Regulations were brought into effect in the summer of 2001. Cannabis dispensaries had been openly operating for over five years in Victoria, Vancouver, Toronto, and Montreal, by the time the Parker decision was made. Many other individuals and networks, like Grant Krieger in Calgary, were also actively campaigning for medical access to cannabis products.

Before the regulations became public, some speculated that clubs would become unnecessary when Health Canada got its programs up and operating. No one expected Health Canada would do the right thing by creating mechanisms to license dispensaries and their growers.

Originally, the MMAR was so full of problems that it is easy to speculate the program was never meant to function efficiently. Looking back upon the Parker decision, 10 years after it was handed down, is important if one wants to understand the direction the courts gave Health Canada, and how the government has failed at fulfilling its obligations.

Here are some key points in the decision:
[44] The Crown’s witness, Dr. Kalant, did, in general, provide strong support for the respondent’s position that marihuana does have therapeutic properties for treating epilepsy and other illnesses. He testified, for example, that “there is a lot of evidence showing a variety of cannabinoids, that is the pure compounds contained in and extracted from cannabis, do have anti-seizure activity”. Most of this evidence has come from animal studies. He testified that of the various cannabinoids tested the most promising one was CBD. It has at least as much anti-convulsant effect as THC but is free of the psychoactive effects. Further, research shows that tolerance to the anti-convulsant action of THC occurs very quickly, “in a matter of days”, so it loses its effect. This does not happen with CBD. As well, there is a simpler dose response relationship with CBD, meaning the more that is given, the greater the effect. With THC, while low doses may be good at controlling seizures, high doses can produce seizures. As he pointed out, this makes smoking marihuana that contains both THC and CBD a problematic delivery system, especially since smoked marihuana contains more THC than CBD. He emphasized that not enough human studies had been done. One good human study done by the Cunha group found that pure CBD taken with patients’ regular medication improved the condition of all but one of the epileptic patients.
[113] In Rodriguez, Sopinka J. identified a principle of fundamental justice that, in my view, has particular application to this case. He held at p. 594 that, “Where the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose.”
[137] Using a criminal prohibition to bar access to a drug for a person, such as Parker, who requires it to treat a condition that threatens his life and health, is antithetical to our notions of justice. It is inconsistent with the principle of sanctity of life which, according to Sopinka J. in Rodriguez at p. 605, as a general principle “is subject to limited and narrow exceptions in situations in which notions of personal autonomy and dignity must prevail”.
[138] Permitting access to medicine that may relieve debilitating symptoms of illness is consistent with the common understanding about the pur- pose of proper medical care. In Airedale N.H.S. Trust v. Bland, [1993] A.C. 789 at 857, Lord Keith of Kinkel stated that the object of medical treatment and care is to benefit the patient. Where illness can neither be prevented nor cured, “efforts are directed towards preventing deterioration or relieving pain and suffering”.
[139] To summarize, the common-law treatment of informed consent, the sanctity of life and commonly held societal beliefs about medical treatment suggest that a broad criminal prohibition that prevents access to necessary medicine is not consistent with fundamental
[161] Even if I am wrong on this aspect of the case, the theoretical availability of marihuana through the new drug programme does not answer Parker’s claim that the prohibition infringes his right to liberty. I have described that right as the right to make decisions that are of fundamental personal im- portance, which includes the choice of medication to alleviate the effects of an illness with life-threatening consequences. There may be circumstances in which the state interest in regulating the use of new drugs prevails over the individual’s interest in access. This, however, is not one of those circumstances. The evidence establishes that the danger from the use of the drug by a person such as Parker for medical purposes is minimal compared to the benefit to Parker and the danger to Parker’s life and health without it.
[177] The question remains; does this unfettered discretion meet constitutional standards? In my view, not-withstanding the theoretical availability of the s. 56 process, the marihuana prohibition does not accord with the principles of fundamental justice. In Morgentaler, Dickson C.J.C. found the therapeutic abortion scheme invalid in part because the provincial Ministers of Health could impose so many restrictions as to make therapeutic abortions unavailable in the province and because there was no standard provided in the section for the committee to use in determining whether the woman’s health was in danger.
[184] In view of the lack of an adequate legislated standard for medical necessity and the vesting of an unfettered discretion in the Minister, the deprivation of Parker’s right to security of the person does not accord with the principles of fundamental justice.

Essentially, the Parker decision should have opened to medicinal cannabis cabinet to approximately one million Canadians who suffer from permanent, physical pain, or otherwise incurable, debilitating diseases. In effect, Health Canada has forced most of these patients to the streets, if they choose to try cannabis at all. As of June 2009, Health Canada has authorized 4,029 patients into the program, though that number is apparently approaching 5,000 now, and rumored to be as high as 10,000 if the backlogged applications are included. In contrast, illegal medical cannabis dispensaries help several times that many patients. The BCCCS, for example, has about 4,500 members alone, with the CBC of C not far behind with about 3,300 members.

The vast majority of patients in this country, though, go without medicine every night despite favourable court rulings, and the efforts of dispensaries. For many, the question is simply: How do we force the government to implement the Parker decision?

With the Conservatives running affairs in Ottawa, it is hard to imagine Health Canada making amendments to the MMAR that are meant to benefit the patients unless forced to do so by the courts. Currently, the only cannabis study being directly funded by the federal government focuses upon young people and the potential negative mental health impacts of smoking the herb at a young age. Under Stephen Harper, the Conservatives have launched a series of drug crime bills targeting cannabis growers with mandatory minimum sentences, a sign of how the party generally considers the herb as dangerous as cocaine and heroin. Every single time the courts have heard from Health Canada officials, expert witnesses, and patients, they have ruled the MMAR inadequate. With a rash of raids against clubs in Central Canada last Spring, the courts will continue to be the main battlefront while this war is waged.

Here at the CBC of C, our bakery was raided in Dec. 2009, with Owen Smith left facing charges of possessions for the purpose of trafficking (PPT) cannabis and PPT tetrahydrocannabinol (THC). At the preliminary hearing, scheduled for May 19-20, 2011, we will begin the first stage in what will likely be a long legal process.

Constitutional arguments will not be made until after the Supreme Court of Canada makes a decision in the Insite case, which is scheduled to be heard next Spring. In that decision, the BC Court of Appeal ruled that provincial health care mandates can override federal criminal law if there is no threat to public peace, security, and order. While there is little the average supporter can do in the courtroom itself to help us win, there are many things people can do to help while these trials are happening.

Any time is a good time to let politicians know your feelings. Politicians pay a lot of attention to the media, and hearing from voters when these trials are unfolding will encourage elected officials to speak publicly in favour of these organizations, and the medical use of cannabis. Whether you are supporting a local club or telling your elected representative how important a dispensary would be in your own neighbourhood, patients should use these trials to pressure politicians into defending dispensaries and medical cannabis users in general. Though their agenda is typically supporting corporations, mass media needs to be held accountable when report- ing upon these trials and the status of medical cannabis in general. Writing letters to the editor, making phone calls to individual reporters, and issuing/forwarding press releases, are great ways to make sure your local media is up-to-date and aware the public is interested in the subject.

Many of the dispensaries face lengthy trials. Helping clubs fund-raise is critical for several reasons. Patients should not be expected to bear the full cost of these trials. Anyone could end up with a serious illness. Healthy compassionate cannabis consumers have a civic duty to assist disadvantaged and vulnerable neighbours. Helping a club with fundraising for legal fees can be a fun way to bring people together for an important cause.

The bakery trial, for example, will cost the group about $100,000 for all of the legal fees, and the costs of the expert witnesses. We have hired the top legal team in the country for the battle, with veteran John Conroy, Q.C. working with one of the brightest young lawyers in the country, KirkTousaw.

Ironically, as a result of this raid, we will be organizing events all over the west coast for the next four or five years to pay for these court costs. This means we will be hosting film nights, parties, raffles, art auctions, contests, and festivals, that bring cannabis consumers together. These activities will raise more than funds, they will raise spirits.

Many changes have occurred since the Court of Appeal for Ontario ruled the government must provide a legal means to access cannabis for medical purposes. On one hand, a few thousand people are legally growing cannabis for themselves, or have a designated caregiver do it for them. On the other hand, hundreds of thousands of patients are left without a doctor’s recommendation, with unlicensed dispensaries helping an estimated 25- 30 thousand people.

Improvements in medical cannabis distribution strategies will only occur when pressure is applied from concerned citizens. Placing public attention upon the government, for their failure to comply with basic tenants of the Parker decision and the Charter of Rights and Freedoms, is critical if we are to convince Canadian society to support community-based dispensaries.