Canadian Med-Pot Regulations change

By PenguinPhreak · Jul 10, 2005 ·
  1. PenguinPhreak
    MMAR Still Unconstitutional After Latest Amendments

    its inception in 2001, Health Canada's medical marijuana program has
    failed to fulfill its mandate from the Ontario Supreme Court Parker
    case to ensure that those who use cannabis as a medicine do not have to
    choose between their liberty and their health.<sub>1</sub>
    Only 821 medical cannabis users in Canada, out of an estimated 500,000,
    are doing so legally. For many of those 821 people, the process of
    obtaining their license has been a bureaucratic nightmare.

    October of 2004, Health Canada's Office of Cannabis Medical Access
    (OCMA) released proposed amendments to the Marijuana Medical Access
    Regulations (MMAR).<sub>2</sub>
    The amendments were based on consultations with their Stakeholders
    Advisory Committee, made up in large part by law enforcement, medical
    and pharmaceutical interests, and a very small representation of
    medical cannabis users.

    Several patient groups, including the
    Canadian Aids Society, the BC Compassion Club Society, and Medusers,
    submitted responses to the proposed amendments to the OCMA. In a
    display of cooperation, patience and optimism, these groups provided
    feedback outlining their concerns and recommendations.<sub>3</sub>
    All groups felt the amended regulations fell well short of patient
    needs, and did little to render the programme accessible, effective,
    compassionate, or constitutional.

    Last week, the amendments were approved and a new set of application forms was released.<sub>4</sub>
    Feedback from cannabis users and advocates was not incorporated. Nor
    were the measures ordered by the Ontario Court of Appeal to remedy the
    programme's unconstitutionality.<sub>5</sub>
    Thus while some of the changes are being applauded, most medical users
    and advocates are disheartened, and remain skeptical of the programme
    and of Health Canada's plans for its future direction.

    The New Categories of Applicants

    major changes on the application forms are related to the categories of
    applicants and their respective requirements for physician support.

    there used to be three categories of applicants, there are now two. In
    addition to those being treated within the context of compassionate
    end-of-life care, Category 1 now includes applicants with Multiple
    Sclerosis, Spinal Cord Injury, Spinal Cord Disease, Cancer, AIDS/HIV,
    Severe Arthritis, and Epilepsy. Conspicuously missing from this list is
    Hepatitis C. Category 1 applicants only require the support of one
    physician (specialist or general practitioner), potentially greatly
    improving the odds for these additional illness groups to access the

    The new Category 2, which includes everything else,
    now only requires the signature of one physician instead of an
    additional one or two specialist signatures, which were previously
    required for category 2 and 3 respectively. Specialist involvement is
    still required, however, and the physician must declare that they have
    consulted with a relevant specialist who has assessed the applicant's
    case, concurs that conventional treatments are ineffective or medically
    inappropriate for the treatment of the applicant, and is aware that
    cannabis is being considered as an alternative treatment.

    requiring varying levels of physician support, these two categories
    arbitrarily discriminate between legitimate medical cannabis users,
    equally deserving relief from their symptoms.

    Medical Practitioners

    forms are the front end of the regulations, and represent the biggest
    hurdle to accessing the programme: getting them filled out by a

    The new forms shift some of responsibility from the
    physician to the patient in that the applicants are now required to
    acknowledge and declare their acceptance of the risks associated with
    the use of cannabis in their declaration and the physicians are no
    longer required to state that the benefits of cannabis use outweigh the

    Physicians are also no longer required to list
    conventional therapies that have been tried or considered, or to
    provide their reasons for finding those therapies to be ineffective or
    inappropriate. However, they still have to declare that conventional
    therapies have been tried or considered and have been found ineffective
    or medically inappropriate.

    Despite the fact that the Regulatory
    Impact Assessment document, which accompanied the proposed amendments
    to the forms, suggested that the requirement for physicians to make
    recommendations about daily dosage would be removed, it remains.

    is unclear if these changes are enough of a shift to increase
    physicians' comfort level with their previously rejected role of
    gatekeeper to the programme.<sub>6</sub>
    Without a concerted educational effort on the part of the OCMA and the
    professional medical associations, the latter which have previously
    encouraged physicians not to sign the forms, it is unlikely.<sub>7</sub>

    for Specialists, it is uncertain if this lessened involvement on their
    part is sufficient to encourage their support. What is certain is that
    the continued requirement for specialist involvement ignores the
    Ontario Court of Appeal's 2003 Hitzig ruling that, as a remedy to the
    programme's unconsitutionality, struck down the requirement for a
    second physician to endorse a patient's application to receive medical

    "This requirement is at best redundant," the court
    said. "It adds no value to the application and does little or nothing
    to advance the state objective. In particular, it does nothing to
    promote public health and safety."

    Patients and doctors alike
    have proposed that the medical declaration should be limited to
    confirmation of diagnosis only, which would respect physicians'
    professional and liability concerns. It would also respect patients'
    right to an informed and autonomous choice of treatment.

    Natural Health Care Practitioners

    amendments continue to reject natural health care practitioners, such
    as Doctors of Traditional Chinese Medicine and Naturopaths, who have
    much more experience with herbal health care than physicians. Their
    reasoning, that "with few exceptions controlled substances can be sold
    or provided to a patient only by, or under the direction of a
    physician, dentist or veterinarian," is rather circular. Cannabis is a
    great candidate for an exception given its relative harmlessness
    compared to other controlled substances, and even uncontrolled ones.

    Natural Health Product

    Canada is still in denial about cannabis being a natural health
    product. Cannabis is a traditional medicine that, according to these
    regulations, is available for sale pursuant to a confirmation of
    diagnosis from a physician and ministerial approval. The fact that it
    does not require a prescription makes cannabis a perfect fit with the
    Natural Health Products (NHP) regulations.<sub>8</sub>
    Inconsistent with its assertion, the OCMA is using NHP cultivation
    standards to assess the quality of its contracted cannabis product.

    to regulate and administer this herb as if it were a pharmaceutical
    product creates unnecessary obstacles for patients, doctors and the
    governing bodies of the medical community.

    Supply Source

    the amendments help people jump through the first hoop of getting a
    license, they are then faced with inadequate options for a legal
    supply. On the forms applicants must check off that they 1) plan to
    grow their own cannabis, 2) plan to designate someone to grow it for
    them, or 3) plan to purchase it from Health Canada.

    stats show that as of April of this year, 594 applicants ticked off the
    first two choices and got licenses to grow accordingly. It is unknown
    how many are actually following through on their plans, though it is
    known that only 54 have applied for seeds from Health Canada. On the
    new forms it appears that those applying for a personal or designated
    person production license will be required to apply for, and purchase,

    The only directive, of four, from the Hitzig case that
    has been incorporated into the amendments is the removal of a
    restriction that prevents designated, licensed growers from receiving
    compensation for supplying marijuana to sick people eligible to receive

    As for the third choice, Health Canada currently only
    allows for one licensed dealer, which at this time is Prairie Plant
    Systems (PPS). Considering Health Canada's plans to phase out personal
    production and designated person licenses, this could be the only
    remaining legal source. PPS currently provides only one strain of
    cannabis, at one THC level. It is not grown organically, it uses
    controversial gamma irradiation, and is of questionable quality.
    Although the potency of this cannabis has increased to about 12%, this
    is still lower than ideal for medical cannabis users who prefer higher
    potency so that they can use less.

    The PPS cannabis costs $5 a
    gram and there is no refund if returned, which may explain the drop in
    return rate from 30% last year to 2%. 128 license holders are accessing
    PPS cannabis.

    The need for a standardized and quality controlled
    source of cannabis is not a justification for a monopoly on production.
    Rather, licensing of laboratories to conduct appropriate tests, and
    establishing licensing and inspection protocols for small-scale
    producers will fulfill the need of medical cannabis users for lower
    cost, higher quality, and increased strain variety.

    these latest amendments continue to ignore the final two Hitzig
    directives to remove: A provision that prevents licensed growers from
    raising marijuana for more than one person.

    A prohibition against licensed growers' producing marijuana in common with more than two other growers.

    directives were meant to address the need of medical cannabis users to
    have more that an "illusion to access" that the current options
    provide, by clearing the way for the licensing of compassion clubs and
    growing cooperatives.

    In court, Health Canada stated that
    compassion clubs "historically provided a safe source of marihuana to
    those with the medical need' and that "the 'unlicensed suppliers'
    should continue to serve as the source of supply for those with a
    medical exemption".

    Unfortunately, there is still no box for
    applicants to choose compassion clubs as their source of supply,
    although it is estimated that these organization supply at least half
    of the license holders.

    Across Canada, the network of mostly
    non-profit compassion clubs serves about 10,000 medical cannabis users,
    providing access to a variety of stains of clean, high quality
    cannabis. The BC Compassion Club and other well-established clubs, such
    as the Vancouver Island Compassion Society and the Toronto Compassion
    Centre, also provide education, monitoring, ongoing advice and support,
    and access to other forms of natural health care. Over the last 8
    years, they have proven themselves to be an effective, affordable and
    sensible way not only to distribute medical cannabis, but also to
    provide suffering Canadians with services no other model can deliver.

    the current regulations, Compassion Club operators and staff will
    continue to risk arrest and criminal prosecution in their effort to
    attend to the needs of Canada's critically and chronically ill.

    Law enforcement and Safety

    significant change to the regulations is that the amendments provide
    explicit authority for Health Canada to communicate limited information
    concerning authorizations to possess and licenses to produce marihuana
    to police in response to a request made in the context of an
    investigation under the Controlled Drugs and Substances Act (CDSA) or
    the MMAR.

    License holders have been informed that previous
    requests not to disclose information are no longer valid. Health Canada
    states on their forms that this provision is meant to reduce the
    possibility of police intervention when license holders engage in
    activities allowed under their authorization or license.

    this measure may go a long way in reducing the harassment license
    holders are now experiencing at the hands of law enforcement, serious
    concerns were expressed by medical cannabis users and advocates at an
    OCMA Stakeholder's Advisory meeting about how the police will use the
    information disclosed to them. It is not explicit how limited the
    information police can access is, i.e. if police can access personal
    information about illness and about medical practitioners though this
    provision or through an access to information request. The amendments
    do not address these concerns, nor take any measures to protect license
    holder from the potential abuse of this provision.

    disclosure of information to police is a violation of privacy rights.
    There is no reason to discriminate against those who might benefit from
    the therapeutic use of cannabis by forcing them to disclose personal
    information at the request of police organizations. For many potential
    and current participants in the MMAR program, this requirement is
    reason enough to avoid federal registration for therapeutic cannabis
    use. As a result, police and courts will continue to be in the position
    of using their discretion in relation to legitimate medicinal users who
    chose not to participate in the MMAR because of forced disclosure.


    a testament to common sense, the new authorization to possess cards
    will no longer display the licensee's medical information. It seems
    that with the provision authorizing Canadian police to obtain relevant
    information from Health Canada, the address of license holder and the
    cannabis production, as well as quantity allowable, could also be
    omitted. Such indiscreet information poses a great security risk should
    the license be lost or stolen.


    a new renewal form has been included that is shorter than the main
    application form. Another improvement is the requirement that new photo
    ID be submitted every 5 years instead of every 2 years.

    To the
    dismay of many, renewals are still required every year. This is
    probably one of the most distressing elements of the programme,
    considering how difficult it is to get physician support in the first
    place. Requiring patients to go through major stress every year seems
    rather unreasonable and inhumane, especially for those with chronic

    Cost Coverage

    Cost coverage, one of
    most vital of all primary stakeholder concerns, was once again not
    addressed in this third version of the regulations.

    This year,
    Revenue Canada has allowed cannabis purchased from PPS to be deducted
    as medical expenses under the Income Tax Act. Given how few people are
    using this source of supply, this is an inadequate, though appreciated,

    Other cost coverage measures are necessary to ensure
    medical cannabis users are not forced into poverty. Tax deductions,
    private insurance, and provincial health care insurance, must address
    all costs of medicine including personal cultivation and cannabis
    purchased from compassion clubs.

    Additionally, home owners or
    renters that are authorized to possess and/or licenced to produce
    cannabis for therapeutic purposes must also be able to access insurance
    coverage for loss of equipment, crops, or harvested cannabis in the
    event of a fire or theft. They must be assured they will not have their
    house insurance withdrawn, nor be evicted from their home.

    Humour is the Best Medicine

    some comic relief, the OCMA has replaced a grammatically awkward
    programme name with a more aptly descriptive one. The Marihuana Medical
    Access Regulations (MMAR) is now called the Marihuana Medical Access
    Division (MMAD). There has been no comment on this as of yet from
    Mothers Against Drunk Driving (MADD).

    In another suspension of
    reality, the regulations require applicants to consent to using
    marihuana only for the treatment of the symptom stated in the medical
    declaration. Those who find cannabis elevates their mood, helps them
    sleep, or reduces their stress, need not apply.

    While on the one
    hand Canada must be applauded for being one of three countries with a
    medical marijuana programme, it is doubtful if the latest amendments
    will open up access to the programme. And it is doubtful whether they
    are indeed intended to, when the blatant disregard of the needs and
    rights of people living in Canada to relieve their suffering without
    risking their liberty continues year after year.

    Health Canada's lack of commitment to research, it seems it is treating
    the programme as a stop-gap measure as they move towards their vision
    of a more "traditional" pharmaceutical model. If this is the case, they
    acting in bad-faith at the expense of tax-payer dollars and Canadians

    Most disturbingly, the programme creates a false
    impression that those with licenses are the only legitimate medical
    cannabis users. This makes it easier to persecute those without
    licenses. And when those without the licenses account for an
    overwhelming majority, we have to decide whether we should continue try
    to improve this programme, or abandon it completely.

    The Parker
    decision gave the government the opportunity to ensure the rights of
    medical cannabis users in order to uphold the cannabis prohibition
    laws. It appears, with these latest amendments, they have failed once
    again. Perhaps the next court that finds the programme unconstitutional
    - and noncompliant with court-ordered remedies - will strike it down.

    of these people are terminally ill. To suspend our remedy if they may
    die in the meantime is, in our view, inconsistent with fundamental
    Charter values."

    </font>1 <a name="f1"> </a>

    2 <a name="f2"> </a>

    3 <a name="f3"> </a> Revised.pdf

    4 <a name="f4"> the revised regulations are not yet on the OCMA webiste, however the forms are available at </a> mandeur/index_e.html

    5 <a name="f5"> </a>

    6 <a name="f6"> </a> cs/english/resource_files/admin_docs/common/com_letter_to_ro ck_2002_11-e.html

    7 <a name="f7"> </a>

    8 <a name="f8"> </a>

    Share This Article


To make a comment simply sign up and become a member!