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
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
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.
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.
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
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
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
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
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.
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, one of
most vital of all primary stakeholder concerns, was once again not
addressed in this third version of the regulations.
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.
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
</font>1 <a name="f1"> </a>www.johnconroy.com/parker2.html
2 <a name="f2"> </a>canadagazette.gc.ca/partI/2004/20041023/html/regle2-e.html
3 <a name="f3"> </a>www.cdnaids.ca/web/backgrnd.nsf/cl/cas-gen-0089
4 <a name="f4"> the revised regulations are not yet on the OCMA webiste, however the forms are available at </a> www.hc-sc.gc.ca/hecs-sesc/marihuana/how-comment/applicant-de mandeur/index_e.html
5 <a name="f5"> </a>www.johnconroy.com/Hitzig03-10-07.pdf
6 <a name="f6"> </a> www.cmpa-acpm.ca/portal/pub_index.cfm?LANG=E&URL=cmpa_do cs/english/resource_files/admin_docs/common/com_letter_to_ro ck_2002_11-e.html
7 <a name="f7"> </a>www.cmaj.ca/cgi/content/full/166/1/83...
8 <a name="f8"> </a>www.hc-sc.gc.ca/hpfb-dgpsa/nhpd-dpsn/nhp_regs_e.html</font>