Confusion abounds in medical cannabis production dispute

 

My name is Kirk Tousaw and I am a criminal lawyer in British Columbia.  I have read your coverage of the ongoing saga in Port Hope with interest and more than a little dismay.  Having litigated the constitutionality of Health Canada's Marihuana Medical Access Regulations (MMAR) in a number of cases, I am intimately familiar with the current status of the government's regulatory scheme.  Below my signature I link the main decisions in this area and suggest starting with R v Beren as it is the most recent and comprehensive review of the law in this area.

 

Your coverage has been good but it appears that virtually no one involved knows what the rules around medical cannabis actually are.  For example, in early coverage (perhaps by another author) I saw the suggestions that Health Canada allows 3 plants per person.  In the latest article, I read that Health Canada allows 25 plants per person.  Neither statement is accurate.  In fact, the number of allowable plants varies on a case-by-case basis and is calculated according to a formula that is based on the number of grams per day that the patient's physician "prescribes" (in quotes because the MMAR application process is distinctly more cumbersome and onerous than obtaining a prescription, even for opiate-based narcotics) which can be found at section 30 of the MMAR.

 

So, for example, if a patient consumes 5 grams per day the MMAR allow that person, or a designated producer for that person, to produce 25 indoor cannabis plants.  If the patient consumes 3 grams per day, 15 plants are allowed.  The formula is complex but equates roughly to 5 plants per gram of consumption (again, indoors).  There is no maximum dosage and I am aware of patients with licenses to produce in excess of 250 plants for their personal use.  These patients typically use the raw cannabis to produce salves, edible products or consume it in weak-tea solutions and therefore require significantly more cannabis than someone who primarily smokes or vaporizes the medicine.  [Outdoor production uses a different formula and allows for much fewer plants.]  

 

None of this makes much sense as, depending on production methods (space, lighting, type of strain, nutrient usage, growth medium, timing, temperature and all of the other factors that are common to growing any plant) you can produce the same amount of cannabis with 25 plants as you can with 250.  And conversely you can have a crop of 250 fail just as easily, or perhaps even more easily, than a crop of 25 which then leaves the person without medicine.  The number of plants has little role in the overall safety of the production facility and it is clear that there is significant misinformation and, indeed, hysteria about the purported safety risks associated with growing this plant.

 

Currently a producer can provide medicine to a maximum of two people (though that restriction was supposed to be "interim" as the government figures out how to deal with its program repeatedly being found unconstitutional by the Courts) and there is no limit on the number of licenses that can be aggregated at any one location (though there used to be a maximum of 3 until that restriction was stricken by the Courts).  Advocates have long urged the government to license larger-scale production in order to promote oversight and minimize the total number of production facilities in Canada.  These pleas have thus far been ignored.

 

Logic and reason are not major components of our relationship with cannabis, medicinal or otherwise, but that is a rough sketch of part of the scheme that the government has put into place.  I think it would behoove the Mayor and Council to acquaint themselves with the actual regulations (available free in current format at http://www.canlii.com/en/ca/laws/regu/sor-2001-227/latest/sor-2001-227.html) before coming to any conclusions.  They may also want to peruse other pertinent legislation such as applicable human rights legislation as preventing someone from producing medicine on the basis of ignorance and baseless antipathy to production of this plant could be considered a violation of the human rights and dignity of the patient benefiting from the medicine.  And many people do benefit tremendously from this safe, effective and non-toxic natural health product.  I suppose given the prejudices that exist it behooves me to say that virtually all of the supposed risks mentioned by the opponents of Mr. Tapiero's production are vastly overstated and easily rectified with basic security procedures and proper production methods which I have no doubt would be implemented by Mr. Tapiero.

 

I apologize for the length of this email and, as you might imagine, I could go on.  The problems with the current regulatory scheme are legion, perhaps explaining the exceedingly low uptake (less than 1% of medical cannabis users are protected by the MMAR) and confusion surrounding the rules.

 

Should you wish to discuss this at any time, please do not hesitate to contact me via return email or by phone to 604.836.1420.

 

Kirk Tousaw, Barrister

Executive Director

Beyond Prohibition Foundation

www.whyprohibition.ca

 

Hitzig v Canada (OCA 2003) http://www.canlii.org/en/on/onca/doc/2003/2003canlii30796/2003canlii30796.html

 

Sfetkopolous v Canada (Federal Court 2008) http://www.canlii.org/en/ca/fct/doc/2008/2008fc33/2008fc33.html

 

R v Beren (BCSC 2009) http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc429/2009bcsc429.html