Faced with a series of federal court decisions striking down the federal government's Medical Marijuana Access Regulations (MMAR) as unconstitutionally restrictive, Health Canada responded this week by increasing the number of people for whom a medical marijuana provider can grow from one to two. The tepid reform drew loud condemnation from advocates and members of parliament.
The move comes more than a year after a federal judge threw out the one provider-one patient restriction as "arbitrary" and "not rationally related to legitimate state interests," and thus unconstitutional. The government lost again in the Federal Court of Appeal last fall, and the Canadian Supreme Court refused to hear its appeal in a decision released last month.
According to testimony in that case, some 400,000 Canadians use medical marijuana. But little more than 2,800 have registered as patients with the MMAR. Only about 2,000 have registered as medical marijuana growers, and only about 300 of them are growing for someone other than themselves. As for actually receiving medical marijuana from Health Canada, as of July 2008, only 673 registered patients were doing that.
Medical marijuana patients and advocates have cited an unhelpful bureaucracy and lower quality marijuana from Health Canada's monopoly supplier as reasons for not using the government pot. Many patients turn to the "compassion clubs" that provide higher grade medical marijuana outside the scope of the MMAR, or else to the black market.
The new regulations are in force, said a Health Canada spokesman. "As a result of the Federal Court ruling, the government has moved quickly to address this regulatory void and has modified the regulations to allow one designated person to now produce marijuana for up to two authorized persons," spokesman Philippe Laroche said."This modification is currently in force."
The changes are an "outrage" and run contrary to the spirit of the court decisions, said Alison Myrden, an outspoken Canadian medical marijuana advocate. "None of us will settle for this," she told the Canwest News Service. "This is so disingenuous of our government, because we are sick and dying people. We'll have to go back to court again."
"This is ridiculous bordering on outrageous," said Jay Leung of the BC Compassion Club in Vancouver. "When you consider how sick and fragile a lot of these patients are, it's really quite criminal that they are spending all these resources to make medical marijuana inaccessible despite the fact that the courts keep ruling that those who are ill and can benefit from cannabis have the right to access it. They set up this shoddy program in order to avoid violating the Charter of Rights and Freedoms, but this just shows that they are not really interested in helping ill Canadians."
It wasn't just activists. New Democratic Party MP Libby Davies, who represents Vancouver East, told Canwest the government's response was "abysmal" and would likely once again be struck down by the courts. "From the beginning, the federal government has been dragged kicking and screaming into accepting the use of marijuana for medical reasons," said Davies.
"There is no doubt this will not stand up to further legal scrutiny," said Lucas.
Liberal MP Keith Martin, who has introduced a private bill to decriminalize marijuana possession, said the new two-person limit showed the Conservative government was unwilling to disentangle concerns about illegal drug use and medical marijuana. "They lump them all in together," said Martin.
Saying he was "disappointed but not surprised," Lucas added that Health Canada has been intransigent under both Liberal and Conservative governments. "There has been a pattern of resistance and entrenching their failed policies, and it's been about the same under the last three health ministers. None of them have ever spoken about the program," he noted. "There has not been near enough public scrutiny. We need an investigation of the incredible cost to taxpayers when the government has to repeatedly spend money in failed litigation."
Lucas also warned that Health Canada could face suits for damages from aggrieved patients. "Health Canada is making itself increasingly vulnerable to civil suits," he said. "The patients of this country aren't going to put up with any more of this. I wouldn't be surprised to see civil litigation to strike the program or get reparations for Health Canada's intransigence," he predicted.
In the meantime, the Vancouver Island Compassion Society and its fellow organizations across Canada will fill the void -- despite being outside the purview of the law. "We operate with the support of our local communities and we're not seen as a police priority," Lucas said. "Since we are supplying more medical marijuana to patients than Health Canada and at no cost to taxpayers, there is little motivation to attack organizations that actually help critically and chronically ill Canadians instead of increasing their stress and anxiety."