STILL ILLEGAL AFTER ALL THERE YEARS

Marijuana As Medicine And The Law Circa 2001

Introduction And Some Early History

On July 31st last year, the Ontario Court of Appeal, in a case
involving Terry Parker, ruled that our marijuana laws are
unconstitutional to the extent that they did not provide for access
by medical patients requiring cannabis for their health or at least
if there health is threatened in a serious way. The court also ruled
that the existing exemption process was unconstitutional because it
gave the minister of health an absolute discretion to grant or
withhold such an exemption from the law without any criteria for so
doing.

The court gave the federal government until July 31st of this year to
remedy the situation. Ottawa did not appeal this decision and is
currently developing a new regulatory approach for the use of
marijuana for medical purposes.

Marijuana (cannabis sativa) has been demonstrated to be safe and
effective in the treatment of numerous medical conditions. Muscle
spasms and tremor, pain, migraine headache, nausea and vomiting, and
loss of appetite are all conditions for which marijuana has been
shown to be effective, in maladies ranging from multiple sclerosis to
AIDS wasting syndrome to epilepsy and chemotherapy treatments for
cancer. Marijuana also reduces intra-ocular pressure, and is
effective in slowing the progression of glaucoma.

The possession and use of marijuana became illegal in Canada in 1923
when the federal cabinet added it to the schedule under the Opium and
Drug Act of 1911. This was largely as a result of the climate of
"irrational fear" whipped up by the writings of crusading Edmonton
magistrate Emily Murphy. Her writings were primarily based on
misinformation from U.S. chiefs of police and were written under the
name of Janey Canuck and serialized in MacLeans magazine.

She also wrote a racist and sensationalist book called The Black
Candle. Judge Murphy, to her credit, was also one of the famous five
that brought women the vote in Canada, but to her further discredit,
was also a proponent of eugenics.

Throughout this time the legislation, which became known as the
Narcotic Control Act, unlike the U.S. laws, allowed "physicians" to
"administer, prescribe, give sell, or furnish a narcotic" to a
patient for a condition for which the person was receiving
professional treatment. This provision in Section 53 of the Narcotic
Control Regulations has survived and continues to be the law today
under the new Controlled Drugs and Substances Act. All drugs covered
by the Act are now called "controlled drugs" instead of "narcotics."

However, because there is no legal source of supply, the federal
government, which controls the ability to licence growers and dealers
of controlled drugs, frowns on doctors who do so, as does the British
Columbia College of Physicians and Surgeons. Fortunately there are a
few doctors who are prepared to do what the law authorizes them to
do. In a British Columbia Medical Association newsletter it was
suggested that a "letter of authorization" of sorts be used, instead
of actually prescribing.

Regretfully, most doctors are too timid when it comes to standing up
to their government, unless it involves their pay cheque.

Besides, marijuana is not in that blue book supplied by the
pharmaceutical industry that gives them all those free samples of
real hard drugs with real bad side effects.

What do they need marijuana for when they have all those heavier drugs?

Similarly a provision was also carried forward into the new Act that
allowed the minister of health to exempt certain persons from the law
for a "medical or scientific purpose" or a purpose that is "otherwise
in the public interest." While not originally intended for this
purpose, this provision in Section 56 of the Act has become the
section under which the minister of health has now exempted 140
people over the last 18 months.

Typically an exemptee is authorized to grow several plants for his or
her own use. They are not authorized to obtain it elsewhere.

Many are too ill or lack experience in growing and are therefore
forced to go to the black market and risk obtaining marijuana
contaminated with metals and molds, not to mention pesticides
liberally applied by those only interested in cranking out their next
crop for a profit and not for health care.

Last year, the federal government put out a request for proposals to
grow cannabis for certain planned clinical trials and to possibly
supply "the exemptees." Recently it announced that it had picked
Prairie Plant Systems of Saskatoon to fulfill this five-year contract
by growing it in a heavily-secured bunker in Manitoba. Of course the
heavy security is necessary because there are all those people out
there "dying" to get their hands on this government grade mild
sedative as if they couldn't get enough of the good stuff from the
black market or better yet a "Compassion Club."

What about the Compassion Clubs that have sprung up around the
country to fill the void while awaiting the governments U.S.-induced
snails pace of compassion? No marijuana will be legally available
through the first government-licenced grower/dealer for another year.
These clubs, modeled on their counterparts in the U.S., and
particularly those in California, have a number of illicit growers on
contract to grow medical grade marijuana only for the club, which is
subject to verification and testing for contaminants.

The club obtains the marijuana from the growers, often through
middlemen who perform quality and quantity controls, and supplies it
to club members who must have either a prescription or letter from
their doctors, with rare exceptions. It is usually supplied at less
than market cost even though it is grown primarily organically and is
therefore more expensive to produce.

The B.C. Compassion Club Society in Vancouver is a registered
non-profit society with approximately 1,400 member patients at this
time. The Vancouver Island Compassion Club has approximately 130
members. Many other clubs exist throughout the province and elsewhere.

These clubs operate like hospices providing a wide range of holistic
therapeutic services to members for their conditions besides
providing a source of supply to fill prescriptions and letters for
those that need it now and can't wait for the government's slow and
controlled "compassion." The police and governments at all levels
have turned a deliberate blind eye to the public service these clubs
provide, from a prosecution stand point and in fact have clearly
condoned them. Nevertheless the minister of health has made a point
of studiously ignoring them and their expertise, not to mention their
invaluable research data base, in the process leading up to the
change in the law.

The law - medical marijuana cases in the courts

The most important cases on the medical issue have occurred in
Ontario. Terry Parker has suffered from a severe form of epilepsy
since he was a child.

He has experienced serious life threatening seizures that have not
been controlled by conventional medications and surgery. He found
that smoking marijuana substantially reduced the incidence of
seizures and in fact would stop one that he felt coming on. His
physicians have supported him in this use of cannabis since 1987.
They determined that he could not take any higher doses of
conventional medication because of the serious side effects.

He was subsequently charged with possession of cannabis and acquitted
by the courts on the basis that his use was medically necessary.

A Crown appeal was dismissed.

He started to grow his own to avoid the black market.

In 1996 the police raided his home and seized 71 plants and charged
him with cultivation (maximum seven years in jail) and possession for
the purpose of trafficking (maximum life imprisonment). In 1997 they
raided him again and found three more plants and charged him with
simple possession. He decided to challenge the constitutionality of
the law that forced him to choose between his liberty and his health.

Judge Sheppard of the Ontario Court of Justice, which is like our
provincial court, agreed with him and stayed the charges. He also
gave him and others like him a constitutional exemption for "personal
medically approved use." The Crown appealed to the Ontario Court of
Appeal.

Last July 31st, the Ontario Court of Appeal decided the Parker
appeal. It dismissed the Crown appeal and held that the law was
indeed unconstitutional in so far as it precluded access to marijuana
for medical purposes.

The court declared the law prohibiting the possession of marijuana to
be of no force and effect.

However, as mentioned above, it suspended the declaration of
invalidity for one year to enable Parliament (or more accurately the
executive government) an opportunity to make amendments to try and
bring the law into compliance with the Charter. The federal
government could have asked the Supreme Court of Canada for
permission to appeal this decision. It has chosen not to do so.
Consequently, the government is working on these new medical
marijuana regulations that must be in place by July 31st of this year.

Madam Justice Acton of the Alberta Queens Bench followed the Parker
decision this past December in ruling in Kreiger that the law
prohibiting the cultivation of marijuana was unconstitutional because
it did not recognize circumstances involving medical necessity.

That Court also gave the federal government twelve months to rewrite
the law to provide for such cultivation for legitimate medical use.

The new medical marijuana regulatory framework

Health Minister Alan Rock has said that this new regulatory framework
will address such issues as the definition of medical necessity, the
factors to be considered in granting or denying an authorization to
use marijuana for medical purposes and a transparent exemption
process.

In Parker the court appended to its reasons a copy of the California
Compassionate Use Act of 1996 as well as the most recent legislation
from Hawaii. The Californian law, while declaring that its purpose is
to ensure that "seriously ill" Californians have access to marijuana
where recommended by their doctor for cancer, anorexia, AIDS, chronic
pain, spasticity, glaucoma, arthritis and migraine, goes on to
include "or any other illness for which marijuana provides relief."
This would appear to leave the medical decision in the hands of the
doctor where it belongs.

In addition the Act is intended to not only protect patients and
doctors but also other primary caregivers to the patient.

The Hawaiian law, on the other hand, requires the doctor to first
diagnose the patient as having a "debilitating medical condition."
This is defined as firstly as, "cancer, glaucoma, positive status for
human immunodeficiency virus, acquired immune deficiency syndrome, or
the treatment of these conditions." Secondly as "a chronic or
debilitating disease or medical condition or its treatment that
produces one or more of Cachexia or wasting syndrome, severe pain,
severe nausea, seizures, including those characteristic of epilepsy;
or severe and persistent muscle spasms, including those
characteristic of multiple sclerosis or Crohns disease." Thirdly as
"any other medical condition approved by the department of health
pursuant to administrative rules in response to a request from a
physician or qualifying patient." This model takes control of the
medical decision out of the hands of the doctors and places it with
government bureaucrats where it does not belong.

I'm betting that our minister of health, who will not be spared from
U.S. federal government pressure on this issue, will try for the more
restrictive type of regulations ensuring that control will remain
with the government and not be left to the doctors and their
patients. Whatever the government comes up with it will have to
comply with "the principles of fundamental justice" referred to in
Section 7 of the Canadian Charter of Rights and Freedoms. It will not
meet those principles if it takes away an individual's right to make
decisions of fundamental personal importance which at least includes
the right to make decisions as to what medication to take to
alleviate the effects of an illness with life threatening
consequences. As the court stated in Parker, regulations requiring
doctor approval and setting out safeguards to prevent the marijuana
from getting into the illicit market may well pass Charter muster.

However, the tricky area defining the qualifying illnesses and the
residual power regarding specific illness that are not defined, will
prove the most interesting. At least we know that an unfettered
discretion in the minister or one of his subordinates will not do.

And all of this over a plant, known for centuries to have medicinal
value and described by medical experts as a mild sedative with
dependency aspects equivalent to coffee or tea. A non-toxic substance
they describe as one of the safest therapeutically active substances
known to man in its natural form. The lethal dose ratio (LD-50) for
cannabis is estimated to be about 1:20,000 to 1:40,000 which means
you have to consume 20,000 to 40,000 times as much marijuana as is
contained in one marijuana cigarette to induce death.

This means you would have to consume something like 1,500 pounds in
15 minutes to induce a lethal response.

There are no known fatalities from the substance and it is considered
non-toxic.

By contrast, non-steroidal anti-inflammatories, which include
Aspirin, apparently result in up to 100,000 hospitalizations and
10,000 deaths per year in the United States. The deaths attributed to
Aspirin alone, are 1,000 to 2,000 each year.

In other words, if one applies the same criteria to marijuana as to
manufactured drugs, marijuana would fall into the category of
medications available without prescription over the counter.

In comparison, Echinacea, which is and continues to be widely
available without prescription, is just beginning to go though
clinical trials to determine if it has any therapeutic value at all.
Meanwhile it is known to not be good for those with immune problems
like those suffering from AIDS. So what about all the Chinese herbal
medicines or those used for centuries by various other indigenous
communities?

Maybe its "high" time we conduct some clinical trials on our politicians!

John W. Conroy QC is an Abbotsford lawyer who is involved in a number
of marijuana test cases.