Jamie Shaw: With medicinal cannabis, green is the new grey in Canada
Though many see the law as black and white, when it comes to medical cannabis, there is a whole lot of grey.
It is a characteristic of all legal systems that the “letter of the law” doesn’t always reflect the “spirit of the law”. There are situations where fulfilling the law’s intention betrays the law as written, and obeying the law as written betrays its intention. This is a legal grey area, and the “you are here” sign applies to almost anyone that has had any contact with medicinal cannabis, including government regulators.
Compassion clubs were first called to civil disobedience in Canada in 1997 when they recognized the necessity for people with a legitimate medical need for cannabis to have safe, affordable access to quality-controlled medicine. In the following years, the courts recognized the value and importance of dispensaries, with the Canadian Senate soon following suit. Compassion clubs and those that work in them have even received congratulatory certificates from Parliament and Queen Elizabeth II Diamond Jubilee medals specifically for this work. Despite overwhelming confirmation that we are in step with the spirit of the law, all of Health Canada’s various attempts at regulation have ensured that community-based distribution models remain in violation of the letter of the law.
Patients too will still be in a grey area. Those that were encouraged to invest in growing their own medicine are now going to be criminalized for doing so. Many more people with legitimate need will not be able to afford their medicine under the new regime. Those that can afford to purchase medicine under the new regulations will be allowed to do so legally—however, not in the form they have found to work for them.
Doctors, concerned about being gatekeepers in this new program, are also mired in grey. While there are many doctors who have worked with medicinal cannabis, and clearly see its potential benefits for some, the majority of doctors in Canada have no experience with cannabis, or any other type of herbal medicine. Most provincial bodies governing doctors did not recommend their members prescribe cannabis under the old Health Canada program, and the Canadian Medical Association has issued many statements indicating there would be little to no support for doctors who do so under this new system either.
Ironically, the biggest player in this grey area is Health Canada itself. Despite the last program being found unconstitutional due to its lack of provisions for extracts and edibles, the new Marihuana for Medical Purposes Regulations also excludes these items. While the decision is under appeal, currently, the Health Canada program is willfully at odds with the Charter of Rights and Freedoms. It is not the first time that provisions in their regulations have been found unconstitutional. The government’s response has been to scrap the programs, only to institute “new” ones that contain the same problematic provisions. There has been no attempt to allow those with experience prescribing herbal remedies the right to do so, no attempt to provide the specific information doctors have been asking for since 2001, and absolutely zero attempt to ensure the 40,000 patients in Canada currently served by dispensaries do not have their medicine supply disrupted. Instead, Health Canada seems more interested in promoting a new gold rush, selling their “access” to medicine as a $1.3-billion industry.
It is way past time to clear up a legal grey area that keeps getting more crowded. We in Canada owe it to ourselves to have a clear debate on this topic that includes the voices of those with almost two decades of experience supplying medicinal cannabis to those in need, those of the patients who use this medicine, and those of the doctors who prescribe it. These are the people who have been striving to stay true to the intent of the law, while Health Canada’s many experiments all seem to miss the spirit.