chex1111
Well-Known Member
Yogi Berra: “It’s like déjà vu all over again.”
Jean-Baptiste Alphonse Karr: “Plus ça change, plus c’est la même chose.” (The more things change, the more they stay the same)
Michael Corleone, played by Al Pacino in The Godfather Part III: “Just when I thought I was out… they pull me back in.”
This month’s column, and next, take the form of an open letter to Health Canada in response to their recent publication of a draft guidance document related to personal medical cannabis production.
Dear Health Canada,
About a year ago, I started to get nervous. I was seeing things I’ve seen before, and reading press releases I’ve read before, and looking at pictures I’ve looked at before: pictures of cannabis growing, staged photos with cannabis on folding tables with other drugs and guns and money, and lots of police officers crowded around. Allegations that the regulations governing personal and medical production of cannabis were being abused, that the illicit recreational market was being propped up by patients, that organized crime was getting involved. No statistics, though. No evidentiary support that this is a real problem. That, too, wasn’t new.
All of this took me back to 2005, then again to 2008, then to 2012, then to 2016. Because none of this is new, and little of it is true. I worry that lessons haven’t been learned. That lies haven’t been put to pasture. And I’m terrified that despite cannabis now being legal for recreational purposes, the still-existing stigma, pain and fear imposed upon medical patients is going to get even worse.
And I fear that we are all going to end up in the same place again – a courtroom, in front of a judge, arguing about patients’ rights and the scope of the Charter’s protections for sick and suffering citizens who obtain relief from the medical cannabis they produce for themselves.
And while the idea of getting the band back together again and taking another run at the rules has a certain level of excitement to it, I really, really don’t want that. Nor should you.
Because, as you may recall, you lose these fights. A lot. You lost in 2005 (Hitzig) and in 2008 (Beren) and in 2012 (Smith) and in 2016 (Allard). The irony is that despite almost two decades of a litany of litigation, and the legalization of cannabis production and possession for recreational purposes in 2018, the personal medical cannabis production regulation in place today in 2021 is nearly identical to the one you created in 2002. It still isn’t good enough. It never has been. And making it worse doesn’t serve the public interest in any way.
The press campaign that police, and certain provinces, have put on over the last year or so seems to have led to Health Canada’s decision to issue a “draft guidance on personal production of cannabis for medical purposes” and to seek public comment upon it.
These are my comments.
The Parts of Personal Medical Cannabis Production Health Canada Doesn’t See
As a general matter, public policy is best crafted outside the courtroom. But the general direction of the guidance document reads as an attempt to lay out justifications for increased restrictions on patient conduct. Restrictions that would, in my (non-legal) opinion, almost certainly run afoul of the Charter and the long history of jurisprudence in this area. Generally, the draft guidance document seems to take particular issue with high dosage patients, implying that high dosages are inherently suspect or nefarious. This ignores the reality of patient cannabis use and plant medicine production.
With that in mind, I’d like to offer some specific comments on various portions of the draft guidance document. Health Canada advises that as of September 2020, there were 43,000 self or designated producers representing 10 percent of total registrants in the medical system. Health Canada suggests that since cannabis legalization in 2018 new trends of increased daily dosages for those who want to grow for themselves have occurred, whereas patients who buy from commercial producers have remained steady.
Stop me if you’ve heard this one before. I certainly have. Health Canada has taken the position that high dosages for personal medical cannabis production has been trending up many times in the past (see, for example, the court cases referenced above), which makes me wary of uncritically accepting this assertion.
Perhaps they are. But so what? There are many reasons why those who produce for themselves would have higher dosages than those who buy from commercial growers.
Perhaps most obviously, buying medical cannabis is really expensive. The federal government has not helped this at all and refuses to remove the excise tax from medical cannabis, making it needlessly more expensive for patients. Provinces don’t cover the costs under provincial medical systems. Patients with higher needs, then, will naturally gravitate toward producing for themselves because of the cost of purchasing high dosages.
For example, if you need two grams a day and it costs you $6 per gram, you pay $12 per day for your medicine. If you need 10 grams a day, your medicine costs you $60 per day, every day. It should go without saying that very few people can afford anything approaching that. Even fewer chronically ill people can afford that. If you require a lot of cannabis, growing for yourself is often the only viable option. This selection bias seems pretty obvious.
Jean-Baptiste Alphonse Karr: “Plus ça change, plus c’est la même chose.” (The more things change, the more they stay the same)
Michael Corleone, played by Al Pacino in The Godfather Part III: “Just when I thought I was out… they pull me back in.”
This month’s column, and next, take the form of an open letter to Health Canada in response to their recent publication of a draft guidance document related to personal medical cannabis production.
Dear Health Canada,
About a year ago, I started to get nervous. I was seeing things I’ve seen before, and reading press releases I’ve read before, and looking at pictures I’ve looked at before: pictures of cannabis growing, staged photos with cannabis on folding tables with other drugs and guns and money, and lots of police officers crowded around. Allegations that the regulations governing personal and medical production of cannabis were being abused, that the illicit recreational market was being propped up by patients, that organized crime was getting involved. No statistics, though. No evidentiary support that this is a real problem. That, too, wasn’t new.
All of this took me back to 2005, then again to 2008, then to 2012, then to 2016. Because none of this is new, and little of it is true. I worry that lessons haven’t been learned. That lies haven’t been put to pasture. And I’m terrified that despite cannabis now being legal for recreational purposes, the still-existing stigma, pain and fear imposed upon medical patients is going to get even worse.
And I fear that we are all going to end up in the same place again – a courtroom, in front of a judge, arguing about patients’ rights and the scope of the Charter’s protections for sick and suffering citizens who obtain relief from the medical cannabis they produce for themselves.
And while the idea of getting the band back together again and taking another run at the rules has a certain level of excitement to it, I really, really don’t want that. Nor should you.
Because, as you may recall, you lose these fights. A lot. You lost in 2005 (Hitzig) and in 2008 (Beren) and in 2012 (Smith) and in 2016 (Allard). The irony is that despite almost two decades of a litany of litigation, and the legalization of cannabis production and possession for recreational purposes in 2018, the personal medical cannabis production regulation in place today in 2021 is nearly identical to the one you created in 2002. It still isn’t good enough. It never has been. And making it worse doesn’t serve the public interest in any way.
The press campaign that police, and certain provinces, have put on over the last year or so seems to have led to Health Canada’s decision to issue a “draft guidance on personal production of cannabis for medical purposes” and to seek public comment upon it.
These are my comments.
The Parts of Personal Medical Cannabis Production Health Canada Doesn’t See
As a general matter, public policy is best crafted outside the courtroom. But the general direction of the guidance document reads as an attempt to lay out justifications for increased restrictions on patient conduct. Restrictions that would, in my (non-legal) opinion, almost certainly run afoul of the Charter and the long history of jurisprudence in this area. Generally, the draft guidance document seems to take particular issue with high dosage patients, implying that high dosages are inherently suspect or nefarious. This ignores the reality of patient cannabis use and plant medicine production.
With that in mind, I’d like to offer some specific comments on various portions of the draft guidance document. Health Canada advises that as of September 2020, there were 43,000 self or designated producers representing 10 percent of total registrants in the medical system. Health Canada suggests that since cannabis legalization in 2018 new trends of increased daily dosages for those who want to grow for themselves have occurred, whereas patients who buy from commercial producers have remained steady.
Stop me if you’ve heard this one before. I certainly have. Health Canada has taken the position that high dosages for personal medical cannabis production has been trending up many times in the past (see, for example, the court cases referenced above), which makes me wary of uncritically accepting this assertion.
Perhaps they are. But so what? There are many reasons why those who produce for themselves would have higher dosages than those who buy from commercial growers.
Perhaps most obviously, buying medical cannabis is really expensive. The federal government has not helped this at all and refuses to remove the excise tax from medical cannabis, making it needlessly more expensive for patients. Provinces don’t cover the costs under provincial medical systems. Patients with higher needs, then, will naturally gravitate toward producing for themselves because of the cost of purchasing high dosages.
For example, if you need two grams a day and it costs you $6 per gram, you pay $12 per day for your medicine. If you need 10 grams a day, your medicine costs you $60 per day, every day. It should go without saying that very few people can afford anything approaching that. Even fewer chronically ill people can afford that. If you require a lot of cannabis, growing for yourself is often the only viable option. This selection bias seems pretty obvious.
