January 2013 NORML Canada Newsletter

Greetings Cannabis Law Reform Community,

As we begin 2013, there is a lot for NORML Canada to be excited about. We hope to carry forward the international momentum gathered in 2012, in our continued mission to reform Canadian cannabis law. Although 2012 had its set-backs in Canada, specifically the implementation of increased penalties for cannabis offences, public support for legal reform is on the rise.

In this newsletter, you will find information on three of the key cannabis law reform issues for
2013:

 

The Marihuana for Medical Purposes Regulations (MMPR)

On December 15, 2012 the Government of Canada published its proposed Marihuana for Medical Purposes Regulations (MMPR) in the Canada Gazette Volume I. This marks the first
public step in the Government’s plan to replace the Marihuana Medical Access Regulations (MMAR). In addition to the proposed regulations, the Government of Canada has published an accompanying Regulatory Impact Statement detailing its justification for the new regulations. Interested persons will have until February 28, 2013 to submit comments or concerns about the proposed regulations to Health Canada for consideration.

Creating a Regulated Market for Medical Cannabis

The most notable change contained in the MMPR is the overhaul of medical cannabis supply. Under the MMPR, patients will no longer be able to produce their own medicine, nor will they be able to designate another to do so. Instead, commercial entities will be licensed to produce and supply medicine to patients.

On its face, this change seems positive: fewer producers is said to reduce the ?diversion? of medicine to the black market. Increased quality, safety and packaging standards will be implemented to improve medical efficacy. There are also new provisions to provide cannabis in
clinical settings, as well as special considerations for homeless patients. These are positive changes in some regards, and are seen by some as a step to improve the legitimacy and efficacy of medical cannabis. Some even suggest this may be a key step in getting cannabis covered by public and/or private health insurers, which would be a great change for patients
and suppliers.

However, for some patients, the new regulations may pose severe negative consequences. The primary complaint of many patients is the cost of medical cannabis under the MMPR. The
MMPR contains no cost-control or consumer protection with regards to pricing, and Government cost estimates reflect black market prices. This will leave patients, many of whom live on fixed-income, to face tough financial choices when it comes time to decide
how much medicine they can afford to use.

The second main complaint comes from efficacy. Many medical cannabis users indicate
specific strains, growing techniques and harvesting procedures play a large role in the efficacy of medical cannabis. There is concern the new producers will not be able to provide the level of service patients have been providing themselves with under the MMAR. The MMPR does allow current licensed producers to give strains to the new commercial producers. In addition to not
recognizing the intellectual property created by current producers in their genetics and growing techniques, there is no guarantee the new producers will be able to produce medicine of the quality some patients are accustomed to, thus leaving patients with ineffective, inadequate medicine.

Third, many claim the regulatory requirements imposed on producers will have the effect of only allowing the affluent to gain production licenses. This may have the effect of denying thousands of Canadians the opportunity to participate in a regulated cannabis industry. This could have unintended consequences, as the cannabis community may lose the expertise and experience of those excluded from economic participation.

Details on how to become part of the formal consultation process can be found in the Taking Action section below.

Interplay with Recent Legal Challenges

In recent years, there have been two notable legal challenges to the MMAR: Mr. Paul Lewin successfully challenged the unconstitutionality of the MMAR due to the lack of physician support in the case of R v Mernagh, and Mr. Kirk Tousaw convinced a judge to strike the word “dried” from the MMAR in R v Smith. To many patients, these decisions indicated a step forward in improving access to medical cannabis, and more flexibility in how patients decide to use cannabis.

However, the MMPR seems to only deal, superficially, with the ruling in Mernagh, and wholly ignores the decision in the Smith case. In Smith, the judge found an increased medical benefit could be derived from processing cannabis into extracts and other non-smoked preparations. The Government of Canada has, once again, limited patients to “dried marihuana” without a clear explanation of why the decision in Smith was not followed.

The MMPR seems to have accepted the finding in Mernagh that patients are facing difficulty in
finding a doctor willing to sign the MMAR declaration. To remedy this, ?health care practitioners? will be authorized to issue the medical documentation required by the
MMPR. However, this will only occur where provinces endow nurse practitioners with the power to sign such documentation. Therefore, while this could potentially increase access to medical
cannabis, it is speculated this represents the Government of Canada’s effort to pass the buck to provincial governments. Furthermore, given the evidence in Mernagh regarding the lack of support for medical cannabis in the medical community, it is possible nurse practitioners authorized to sign medical documents may hold views about medical cannabis similar to their physician colleagues.

Taking Action

While NORML Canada is still considering its official position on the MMPR, we strongly believe everyone with an interest in cannabis law reform ought to submit their views to the Minister of Health as part of the consultation process. This is a rare opportunity for Canadians to interact with our Government regarding cannabis policy. Participation will demonstrate the breadth of support, or opposition, to the MMPR, as well as focus attention on the various issues patients, caregivers and supporters may face as the MMAR transitions to the MMPR.

We encourage those for and against the proposed MMPR to make your voice heard and submit your thoughts to Health Canada as part of the formal consultation process.

Submissions regarding the MMPR can be submitted to the Bureau of Medical Marihuana Regulatory Reform at any time before February 28, 2013. Submissions must be in writing, and must include reference to the December 15, 2012 publication of the proposed regulations in the Canada Gazette Pt I. (More info)

Submissions may be made via mail, fax (613-941-7240) or email (consultations-marihuana@hc-sc.gc.ca).

Mailed submissions are to be addressed to:

Medical Marihuana Regulatory Reform
Controlled Substances and Tobacco Directorate
Healthy Environments and Consumer Safety Branch
Health Canada
Address Locator: AL3503D
Ottawa, Ontario K1A 0K9

In addition to formal submissions to Health Canada regarding the proposed MMPR, there are many patient-initiatives, including public demonstrations and legal action. Fight the MMPR is organizing a national day of action on February 21, 2013 at multiple locations across the country.

The MMPR PPL/DPL Coalition Against Repeal is a patient led organization, committed to using legal actions to prevent patients from losing the option to produce their own medical cannabis. The Coalition intends to utilize the expertise of NORML Canada’s President, John Conroy, to explore all legal options available to patients negatively impacted by the MMPR. Mr. Conroy may also be contacted directly.

 

Barreau Du Quebec’s Constitutional Challenge

The Barreau du Quebec (Quebec Bar Association) has launched a constitutional challenge in response to the Government of Canada’s new mandatory minimum sentences (MMS). New minimum mandatory minimum sentencing provisions are now attached to many cannabis offences. The QBA’s challenge alleges the new sentencing provisions violate sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms. It is also alleged that the laws undermine judicial independence, and thereby, violate the constitutional principle of separation of powers.

Section 7 of the Charter protects Canadians from the deprivations of life, liberty and security of the person caused by the State, unless the deprivation is made in accordance with the principles of fundamental justice. The principles of fundamental justice require deprivations of life, liberty and security of the person be the result of non-arbitrary laws, which are a proportionate response to the mischief Parliament is trying to stop.

A restriction on liberty is arbitrary when the State uses excessive means that are not reasonable, or go beyond what is necessary to achieve the objectives of the law. The applicant points out there is no evidence of minimum sentences being necessary to achieve the stated purpose of the criminal law, and are not reasonable in relation to the threat posed to society by many offenders caught by mandatory minimum sentencing. Therefore, those who are sentenced as a result of mandatory minimum sentence are subject to arbitrary deprivations of liberty, which are not in accordance with the principles of fundamental justice.

The new laws are further alleged to violate the principle of proportionality, which violates the principles of fundamental justice. Proportionality requires a sentence imposed be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. Judges have already established a range of sentences for offences, which the judiciary considers to be proportionate to the offence. If a judge is required to disregard that range, the judge will, in effect, be breaching the important principle of proportionality. In other words, the law takes away liberty, but not in accordance with the principles of fundamental justice.

It is alleged the new laws are a violation of section 15 of the Charter, which outlines equality, because they ignore provisions in the Criminal Code which are established to remedy violations of the right to equality against first nations. The withdrawal of a measure designed to achieve equality or to combat discrimination can itself be a section. 15 violation. The new sentencing rules are further said to violate section 12 of the Charter, which protects against cruel and unusual punishment.

Judicial independence is essential in maintaining the role of courts as the protector of the Constitution, and the fundamental values it embodies. The judiciary’s role as defenders of the constitution requires them to be completely separate from the legislature and the executive in terms of powers and functions. This separation of powers is a key requirement of our Constitution, and provides checks and balances on government action. The legislature should not be enacting laws obstructing a judge’s ability to impose a sentence proportionate to the gravity of the offence. When the legislature enacts laws to inhibit judicial independence and discretion, the checks and balances in our system are eroded.

 

Three

One year ago, the Young Liberals of Canada successfully convinced delegates at the Liberal’s biennial convention to vote in favour of a motion proposing to legalize and regulate cannabis. Their success is the first step in the Liberal’s internal procedure to have cannabis reform become a part of the party’s platform in the 2015 electoral campaign. Unfortunately, the successful motion at the biennial convention does not ensure federal Liberals will pursue cannabis reform in the next election.

Following the success of the Young Liberals, the Liberal Party of British Columbia has produced and presented a draft policy paper outlining their position on cannabis policy reform. The white paper sets out a plan to legalize, regulate and tax cannabis in Canada. Additionally, Liberals propose to use revenue to invest in the further examination of health consequences in relation to cannabis use, particularly research into potential mental health issues for youth. Finally, the Liberals propose to extend amnesty to Canadians convicted of ‘simple or minimal’ marijuana possession.

“After the resolution on marijuana today, there is going to be a group of even happier people in the Liberal Party… If you want to be part of a free-thinking, innovative, thoughtful, pragmatic, hopeful, positive, happy people, come and join the Liberal Party of Canada.”

- Interim Liberal Party of Canada Leader Bob Rae, January 15, 2012

The policy paper, titled ‘Legalization of Marijuana: Answering Questions and Developing a Framework’ (PDF), sets out to answer questions regarding reforming cannabis law.

Questions fall into five categories:

  1. Policy

  2. International Response

  3. Legal

  4. Public Health

  5. Logistics

The responses are based on research by the Liberals of BC, current Canadian law, and the legal reforms in Colorado and Washington State.

The policy paper is a must-read for cannabis law reform advocates.

The paper sets out clear answers to difficult questions, such as why legalization is preferable to decriminalization, and the likely response of our international treaty partners.

Furthermore, the paper deals with some of the practical issues of reform: age of use, how to deal with minors, and limits on consumption and/or possession.

Although it is not a certainty, the Liberal Party of Canada will run on a pro-reform platform in 2015, signs are certainly positive. On their website, the Liberal Party of Canada mentions multiple times that Prime Minister Harper’s agenda to imprison petty cannabis offenders is a poor policy decision. Furthermore, while cannabis reform has certainly not been a focal point of the Liberal’s leadership race, multiple candidates have expressed a need to reform our cannabis policies.

Regardless of your views of this particular proposal or your political leanings, one must applaud the efforts of reformers within the Liberal party for taking a formal approach to politicizing cannabis policy. While it is far from certain this campaign will result in positive reforms, what is certain is that anything that promotes public discussion and education about cannabis is a step in the right direction.

Visit the The Young Liberals of Canada’s “Legalize It!” webpage.