Medical Marijuana’s Liberalization and the Legislative Purgatory of Recreational Use

Posted By Colleen Morawetz

As Canadians await the federal government’s plan to legalize and regulate cannabis, expected next spring, this summer has seen unprecedented growth in the dispensary market. In cities such as Vancouver and Toronto, a booming industry of “compassion clubs” has sprung up over the past few months, with some commentators describing a “pot-shop bubble” to rival soaring housing prices.

Dispensaries have the veneer of operating in a legal grey zone, with purported medical professionals “prescribing” medical marijuana for eager customers, but this medical aura can only be for marketing purposes; Health Canada makes it clear that these storefront businesses are strictly illegal. At the same time, beyond the booming market for recreational cannabis, the legitimate medical marijuana system in Canada has experienced dramatic shifts in the past year.

Circumscribed exceptions to the Controlled Drugs and Substances Act have allowed physicians to prescribe marijuana for medical purposes since 1999. In 2013, the Government of Canada implemented the Marihuana for Medical Purposes Regulations (MMPR), creating conditions for licensed producers to compete for medical marijuana consumers in a commercial market.

The most recent judicial challenge to this scheme occurred in a February 2016 Federal Court of Appeal decision, which found that limiting medical marijuana production to Canada’s licensed producers (currently 35) unjustifiably limited patients’ constitutional rights to life, liberty and security of the person by subjecting them to market-driven pricing structures.

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Many Canadians are thrilled for the Liberal leadership to follow through on a long-awaited legalization plan for recreational marijuana use and distribution. || (Source: Flickr // Cannabis Culture)

Since Allard struck down as invalid the entire MMPR, the federal government responded by implementing the Access to Cannabis for Medical Purposes Regulations (ACMPR), which came into force on August 24. The part of the new regulations most worthy of attention is the provision on self-production: individuals with a medical document from a health practitioner may now choose to produce a limited amount for their own purposes, designate another individual to produce it for them, or stick to the mail-order system offered by licensed producers.Meanwhile, in July, the Globe and Mail published the results of a large-scale investigation as to the safety of dispensary-obtained marijuana, finding that one-third of cannabis samples from nine storefronts in Toronto would not pass a Health Canada test for safe levels of mould, harmful bacteria, pesticides and other contaminants. This investigation was novel due to its illegality; at the time of the investigation, federally licensed laboratories were banned from testing marijuana samples, and the newspaper did not disclose the identity of lab used.This ban on testing caused particular concern for patients with compromised immune systems or parents who desired extra confirmation as to the safety of the cannabis oil extract they were giving to their children to treat the symptoms of conditions such as epilepsy and brain tumors. Health Canada had safety standards in place for federally regulated medical marijuana producers; however, patients and caregivers wanting to administer a prescribed dosage through cannabis oil must produce it themselves from dried leaves – with no way of testing the finished product under the ban.

Two weeks after the publication of the investigation, according to the Globe, Health Canada sent an urgent memo to federally accredited labs, asking whether they would be willing to start testing for the public under new federal regulations. As of September, 17 such labs had offered to provide independent testing of marijuana for medical purposes.

Even in the face of these significant changes in medical marijuana laws, the nagging question remains as to why we should care. Surely, the logic goes, the promised legalization of marijuana for recreational use will render all of these laws and regulations useless within the next year?

5377506106_060a578a86_zThe current state of federal legislation in Canada means that medical marijuana has not undergone sufficient quality testing before reaching the patient, putting immunocompromised users at risk. || (Source: Flickr // Dank Depot)

However, the details of the legalization plan remain murky as of yet. Although 30 000 Canadians weighed in during an online consultation this summer, it remains to be seen how much (if at all) the responses will inform the recommendations of the marijuana task force, which is on track to issue a report to the federal government in November. It is also unclear whether the task force will incorporate the set of recommendations issued by the Canadian Medical Association in September.One of the CMA’s critical suggestions is for home cultivation of marijuana, other than for medical purposes, to remain prohibited. This recommendation essentially calls for a two-tier medical/recreational cannabis system, with access to the drug for recreational purposes remaining somewhat constrained. The ACMPR, therefore, has the potential to affect the production patterns of cannabis in Canada well into the future.

Of greater concern, perhaps, is the lower profile decision of Health Canada to allow for laboratory testing of cannabis only if it was obtained for medical use. The Globe’s investigation discovered contaminants in much of the cannabis sold in Toronto’s illegal dispensary market, and it is fair to assume that the situation in other cities is no different.

Among its objectives, Health Canada “strives to … prevent and reduce risks to individual health and the overall environment,” indicating that harm reduction is a core tenet of the department’s mandate. However, its measures must also be allowable by law, and, one would assume, toe the party line in terms of current moral-legal narratives.

While allowing for testing of cannabis not proven to be obtained for medical purposes is technically compatible with cannabis itself being illegal, it certainly seems to question the moral legitimacy of the criminal prohibition. But how strong is this claim to moral legitimacy, when the Government of Canada has announced imminent legalization?

If Health Canada is to properly “strive” for its objective, perhaps certain interim measures should be taken by the federal government to allow for regulation in this legislative purgatory, where harsh local sanctions such as raids seem more and more incongruous with the legalization policy proposal.

Cannabis-Counter-Harborside-DispensaryEnsuring the quality of the product with the safety of users in mind, marijuana dispensaries will stand alongside pharmacies and liquor stores as licensed distributors of controlled substances. || (Source: Flickr // Dank Depot)

Though the boundary between medical marijuana and cannabis obtained for recreational purposes may prove enduring in the new policy framework, the present moral uncertainty could benefit from allowing for licensed testing of all cannabis. As Vancouver city councilor Kerry Jang notes, speaking from a city that has started its own licensing of dispensaries absent of federal guidance, the federal government should no longer “hid[e] behind a legal shield” and avoid giving proper guidance for regulation and control.

After all, what is the point holding out on harm reduction measures when the political tide has already turned?

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