Lawyer John Conroy Leads Battle Against MMPR

By Steve Finlay

As expected, Health Canada has announced new regulations for medical cannabis, replacing the often criticized Medical Marihuana Access Regulations (MMAR). The new rules, called the Marihuana for Medical Purposes Regulations (MMPR), remove some of the bad features of the MMAR. For example, they remove the need for patients to hold an authorization from Health Canada before they can possess cannabis legally, and they provide for the creation of highly regulated “licensed producers” as the primary producers of Cannabis (marihuana) for the medical market instead of only one, through Health Canada.

These improvements, however, are outweighed by the cancellation of Personal Use Production Licences (which authorize “personal grows”) and Designated Person Production Licences (which authorize “caregiver grows”).

When the MMAR are repealed on Mar. 31, 2014, the regulations authorizing such licences are also repealed. Under the MMPR, everyone approved by their “health care practitioner” will have to obtain their medicine through a “licensed producer” at a drastically increased cost according to Health Canada’s own estimates, making this medicine far too expensive for thousands of patients whose health, and in some cases lives, depend upon it.

By Health Canada’s own estimate, the cost will increase from $1.80 to $5 per gram to $8.80 per gram–going up by nearly 400 percent. That amounts to $5,000 per year for a patient who uses an average dosage; much more if a higher dosage is needed. Roughly 60 percent of medical cannabis patients depend on PUPLs or DPPLs for their medicine. The impact of shutting these down will be extensive and severe.

The MMAR Coalition Against Repeal is leading a legal challenge against these destructive changes. The Coalition is raising funds and collecting evidence to support a constitutional challenge against the removal of PUPLs and DPPLs from the MMAR, and the failure to provide for them in the MMPR, and has retained as counsel John W. Conroy QC to lead this effort. John has acted in numerous cannabis and other drug cases, as well as a wide variety of criminal and prison law matters and test cases. He sits on the board of the International Society for the Reform of the Criminal Law, is an honorary board member of the Pivot Legal Society, and is counsel to VANDU (The Vancouver Area Network of Drug Users). Mr. Conroy and his office have already contributed a significant amount of time and energy to this cause.

Patients’ Constitutional Rights

Section 7 of the Canadian Charter of Rights and Freedoms protects the rights to life, liberty and the security of the person, and the right to not be deprived of any of those rights, except in accordance with “the principles of fundamental justice” and subject only to such “reasonable limits” as are prescribed by law and are demonstrably justified in a free and democratic society (S.1 of the Charter). Past court cases have found that Section 7 is violated if a patient with a serious illness which is relieved by marijuana is deprived of the right to use it as treatment. This led to the creation of the MMAR. Recently, the Ontario Court of Appeal affirmed that there is a constitutional right to reasonable access to marihuana as medicine that is protected by S.7 if the patient qualifies by way of approval from his or her doctor.

Health Canada’s current marijuana regulations (the MMAR) were found to violate Section 7 in various aspects in a number of cases. The limitation allowing production for no more than one person was found to be too restrictive, as was the limitation permitting no more than three licenses at one site. The government’s response was to allow one to produce for two people and to have up to four licenses at one site. Now it proposes to abolish the right to produce for oneself or another completely unless one is a “licensed producer.”

Therefore, the questions now are whether the new regulations (MMPR) provide for reasonable access by patients; and whether the limitations upon such reasonable access are “reasonable limits” within the meaning of Section 1. The Coalition’s position is that the shutdown of PUPLs and DPPLs creates an entirely unreasonable barrier to access; that is, an “unreasonable limit”; and that the repeal of such licenses and the MMPR’s failure to continue to provide for them must be subjected to a court challenge.

Impact statements received by the Coalition clearly show that many patients cannot afford the inflated costs, fear the production of their medicine by others outside of their control, and have developed and maintained particular strains of medicine that work for them. They fear others will not be able to produce them at the quality they have developed. Other issues with the MMPR include the continued limitation to only “dried marihuana” and not allowing any other forms, and not permitting any production in any “dwelling house,” which is undefined. These too are arguably unreasonable limits that are not demonstrably justified in a free and democratic society.

Consequently, removing PUPLs and DPPLs will not only cause an unreasonable cost increase, it will also make it far more difficult for patients to obtain unique and specialized strains that are often the only effective treatments for their conditions. In addition, personal growers and designated producers who have invested significant money and effort in cultivation facilities, equipment, nutrients, and security in order to produce their own cannabis at a reasonable cost will no longer be able to do so. The cancellation of these licenses will mean the total loss of this investment.

The New Regulations

The main points of the new MMPR are as follows:

•Health Canada will be responsible for issuing licenses to the new “Licensed Producers,” subject to stringent standards for security, quality, and good production practices. HC will no longer have a producer controlled by them under section 56 of the Act. Prairie Plant Systems will of course be free to apply for one of the new licenses, and may have an edge, due to previous “research and development” in relation to strains that they were not allowed to market. They will no longer be compelled to market the one ground-up strain that provoked significant negative reaction from patients.

•An adult (18 years of age or older) who ordinarily resides in Canada, or a company that has its head office in Canada or operates a branch office in Canada and whose officers and directors are all adults, who wants to produce medical cannabis, can apply to Health Canada for a license to produce it. License holders must meet elaborate and expensive security, record-keeping, and other quality and production requirements. Although this is to be expected if one is going to sell a medicine that otherwise remains illegal to the public, it could make licenses unaffordable for small growers. Multiple sites are permitted, so cooperatives need to be explored for cost-sharing purposes. If the MMPR allowed patients to continue producing for themselves, and not for sale to the public, these elaborate requirements would be unnecessary.

•PUPLs and DPPLs will expire on Mar. 31, 2014.

•In order to possess cannabis, patients will not need to have an Authorization to Possess (ATP) from Health Canada. Therefore, patients will not need to wait for Health Canada to approve ATP applications. This is an improvement; the long waits for approval have been a serious problem ever since the MMAR were first created. Patients who hold current ATPs will be allowed to use them, instead of the new “medical document,” until Mar. 31, 2015 for the sole purpose of becoming registered as a client of a licensed producer. It is recommended that ATPs see doctors to obtain the new “medical document” before Mar. 31, 2014, and not wait until 2015.

•Unfortunately, the removal of Health Canada’s role will create other problems for some. First, patients must have a “medical document” from a health care practitioner in order to obtain cannabis from a licensed producer. In many parts of the country, these documents are very hard to get. In effect, Health Canada is handing over its “gatekeeper” function entirely to doctors–but without asking the doctors for agreement first. Most doctors and their Colleges are quite unhappy about this. Second, the patients will no longer have a “medical marijuana card” or document from Health Canada. Instead, they will have the new “medical document” from their “health care practitioner.” This will cause confusion and problems not only for some patients, but certainly for the police, who frequently seem to have difficulty accepting the validity of Health Canada’s documents.

•Medical cannabis is still limited to “dried marijuana,” which disallows tinctures, juices, oils, creams, sprays, and so on. It must not be sold or provided with any additive or in any dosage form, such as a roll or capsule. For many patients, these extracts provide better treatment and are more easily tolerated. This restriction has already been struck down by the courts in British Columbia, and litigation is ongoing.

•Like the existing MMAR, the new MMPR do not provide any way for medical cannabis dispensaries or compassion clubs to operate legally. These organizations have provided patients with safe and reliable products, as well as conscientious, ethical, and reliable information. Their support for patients, designated growers and their caregivers has significantly improved the health and quality of life of thousands of Canadians. The federal government has ignored significant recommendations that this be the model for medical marihuana distribution. There is a hint that the federal government is of the view that this is up to the provinces to regulate, as they do “doctors, pharmacists, hospitals, and other healthcare providers.”

Even though Health Canada failed to publish the MMPR on Mar. 31, 2013 as originally promised, the ministry has maintained most of the dates that they previously proposed. New applications for ATPs, PUPLs and DPPLs will not be accepted after Sept. 30, 2013. Existing ATPs, PUPLs and DPPLs will expire no later than Mar. 31, 2014, regardless of the date on the document.

How to Fight

The MMAR Coalition Against Repeal will seek a declaration that the failure to include PUPLs and a limited form of DPPL (for the true caregiver responsible for the patient) renders the MMPR unconstitutional to that extent, and perhaps in other ways in which it restricts reasonable access. We will seek to file this action on or before Sept. 30, 2013, and at the latest. before Mar. 31, 2014. We will also seek interim relief pending the trial or hearing of the action in the form of a stay, restraining order, or injunction to prevent the repeal of the PUPL (and a limited form of DPPL) provisions in the MMAR.

We will file this action and bring the application in the Federal Court Trial Division, so that it applies across the country, with the objective being to preserve the status quo in relation to PUPLs (and the true caregiver, DPPL) and preserve reasonable access for Canadian patients until the court can rule on the resulting constitutional questions. If the court rules in our favor and finds the constitutional violations, it will maintain the status quo, giving the government a period of time to try to make the law constitutional. If the court rules against us, we will either appeal, or proceed with a class-action lawsuit for the damages suffered by all those who have lost their investments.

Two things are urgently needed: financial support, and patient impact statements.

The total cost of the court challenge is estimated at $200 thousand to $300 thousand. The majority of funds contributed so far have come from the indoor cultivation industry, and from concerned citizens. In accordance with the rules of the Law Society of BC, all funds are monitored using generally accepted accounting principles and procedures. Every donation, no matter how small, is valuable and important. Donation boxes will be placed in many dispensaries and other selected locations across Canada.

For full details about how to donate in support of the Coalition’s efforts, visit <www.mmarcoalitionagainstrepeal.com>

Patient impact statements are just as necessary; several hundred have been sent in already. If you are a patient or caregiver who depends on a PUPL or DPPL, the MMPR’s impact on you will be severe. You can help stop that from happening by sending an impact statement to the Coalition, or by submitting an impact statement at <www.johnconroy.com>. An impact statement should stick to facts, and it should clearly say how the elimination of PUPLs or DPPLs will affect both your financial situation and your health. The impact on health is most important, because evidence of serious damage to the health of patients strongly supports a preventive injunction.

The success of this court challenge depends on all of us. Passionate commitment, tireless efforts, and overwhelming evidence are needed. If we work together for victory, patients will enjoy the right to reasonable access to the medicine that they depend on for their health and well-being.