One of Canada’s best-known cannabis lawyers is gearing up to launch a court challenge against incoming new federal rules for edibles, extracts, and topicals.
In a phone interview with the Georgia Straight, John Conroy said the looming limits of 10 milligrams of tetrahydrocannabinol (THC) per package of edible cannabis, 10 milligrams of THC per unit of cannabis extracts, and one gram per package of cannabis extracts fall far short of what’s required by some medicinal users.
The prospective case involves an unnamed mother of a young child who requires high-end extracts to treat multiple seizures.
“You’ve got kids with significant medical issues whose parents have got them medically approved for high-end concentrate extracts—and they still won’t be able to get them legally,” Conroy said. “So the government is once again failing to prevent the violation of the constitutional rights of medically approved patients.”
The regulation pursuant to the Cannabis Act takes effect on October 17. Conroy maintained that it will “arbitrarily deprive” medicinal cannabis patients of their right to security of the person, which is guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms.
To illustrate his point, he cited the example of Shawn Davey, whom Conroy represented in the Allard case in the Federal Court of Canada. Many years ago, Davey suffered a permanent brain injury after a motorcycle accident and he has used cannabis since 2002 to relieve pain.
According to the 2016 court ruling, Davey was being prescribed 25 grams per day when he and the other plaintiffs won the right to grow their own weed. He required such a heavy dose because he made cannabis butter for his edibles.
“So if he was doing [legal] edibles, he would have to buy 2,500 packages a day, which is ludicrous,” Conroy said. “He’ll die from the sugar content in the edibles.”
Conroy added that since he successfully argued the landmark Owen Smith case in the Supreme Court of Canada in 2015, Canadians have been allowed to possess cannabis in any of its forms for their medical situation. But until edibles and extracts are legal in October, they have nowhere to acquire them other than in the underground market unless they grow their own weed.
“Many of them, obviously, can’t make it themselves,” Conroy said. “They’re seriously ill with serious issues.”
Moreover, he suggested that the regulation on edibles and extracts won’t be sufficient to meet the legal standard established in the Owen Smith ruling.
“So there may—in fact, probably will be—an independent case before October 18 that might be filed in Federal Court on that issue,” Conroy said.
Government advised of shortcomings
The federal government is already aware of Conroy’s concerns because he laid them out in an 18-page submission following the unveiling of the regulation for cannabis edibles, extracts, and topicals.
“While the risks may be unique, they surely are not greater than alcohol, tobacco, natural health-care products and prescribed drugs, yet those products do not appear to require anywhere near the same restrictions despite their well-known public health and safety risks,” Conroy wrote. “Further, if the objective is to eliminate the underground market, this objective will not succeed if you propose to unreasonably limit the existing market products through continued prohibition.”
In the submission, Conroy demanded to know the origin of the 10-milligram THC limit.
“While such packages with such low limits should be available for novice and intermittent users to enable them to ‘go slow’,” he stated, “these provisions fail to take into account the requirements of an experienced user, and in particular an experienced chronic user, such as a regular medically approved patient.”
Conroy is also planning a second legal challenge in Federal Court to seek a judicial order that medical dispensaries—including compassion clubs—should be permitted.
"It will be like Allard—seeking a declaration that medical dispensaries...are part of reasonable access," he said.
By pursuing this approach, this would no longer simply be an issue of municipal community safety teams enforcing the will of the provincial distributor or applying municipal zoning rules.
Rather, it would become a matter of federal licensing.
If this succeeds, Conroy anticipates that growers who have been blocked from obtaining federal producers’ licences might then be permitted to sell cannabis for medical purposes to compassion clubs.
One of his chief concerns is that federal licensing rules are shutting out people with extensive history in cannabis production. In his opinion, that's only fuelling the underground market rather than diminishing it.
"They're still stuck in this attitude that 'oh, if you have the slightest connection to the cannabis industry in the past, you're not going to get a security clearance and you're not going to be able to participate,' " Conroy said.
He insisted that a better approach would be to open pathways for these people to enter the industry, just as was done with the Kennedys, Seagrams, and Bronfmans following the end of alcohol prohibition.
That could be accomplished by officials providing licences but warning these applicants that they're going to have to follow the rules if they want to remain in the business.
"Take the existing industry and roll it in so it's not competing with you," Conroy advised. "They keep saying they're trying to get rid of the black market but they keep doing things to maintain it—the edibles being the classic example.
"They delay edibles a year," he continued. "Then they come up with this ridiculous 10 milligrams [rule]. Where is your head, man? People are just going to keep going to the black market."