Canada was among the very first countries to acknowledge a constitutional right for qualified patients to use medical cannabis.  It’s almost as if the federal government decided that as penance for this inadvertent progressivism, we should develop the worst medical cannabis access regime to be found anywhere.   

Incremental improvements through the courts by means of a long litany of constitutional challenges to Health Canada’s program have been important, but the federal government has worked to limit or annul improvements time and time again.

See for a noted example, the legal challenge to the provision of the regulations that limited designated growers to only growing medical cannabis for one patient.  The constitutional standard to meet is one of “reasonable access”.  Designated growers only being able to grow for one patient did not meet this standard.  Three guesses what the federal government came back with when it was forced to redraft the regulation:  “Okay, how ‘bout two patients”.    

A recent stunner of a case came out of Victoria which asked the question of whether it is constitutional for Health Canada’s program to restrict patients’ access to dried cannabis only.  What this restriction means is that unless you happen to have a cannabis vaporizer on hand (perhaps alongside the juicer and the waffle-maker in the back of your cupboard) then you will be forced to smoke your medication.

This is old news to medical cannabis patients, but other Canadians tend to find themselves gobsmacked to learn that Health Canada requires sick people to smoke.  And happily, in the Smith case, the judge found that this is another unconstitutional aspect of the program.  Unhappily, the federal government is apparently taking no heed of this finding.

The right to reasonable access…

Given this track record, you will forgive us if we did not have overly high expectations of the recent re-haul of the entire medical cannabis program.  The irony is that there are many aspects of the new program that do in fact make significant improvements, at the same time that the modifications guarantee that the sickest and the most vulnerable of the patients in question are going to be completely barred from accessing their medications.  So, on the one hand, patients are not going to have to wait months and months for a license from Health Canada to legally possess medical cannabis because they will soon be able to purchase it directly on the basis of a physician’s authorization.  But no one who is receiving a disability income will be able to afford the medication.

The heart of the new regulations…

The heart of the new regulations is the creation of a new private sector medical cannabis supply industry and the phasing out of the personal and designated production licenses that allowed patients to cost effectively produce their own medical cannabis.  The development of a supply industry is an inevitable and not unworkable response to the government’s clearly demonstrated failure to provide a satisfactory supply of medical cannabis for licenced users.   However, the new plan does not include any mechanism for cost containment or cost coverage and leaves patients subject exclusively to market forces.

The government’s Regulatory Impact Analysis Statement for the new program estimates that the average price of medical marihuana in 2014 will be $8.80/g.  Estimates as to what constitutes an average daily amount of medical marihuana appear to range widely, from 2 g/day to 10 g/day.  This would mean that medical marihuana patients would be paying from $17/day (2 g) to $88/day (10 g).  For those patients requiring daily medication, this amounts to approximately $510/month (2 g/day) to $2640/month (10 g/day).

For almost any Canadian, such costs would be a formidable barrier to access, but for people on fixed disability incomes, the cost is a complete bar to access.  The current rate for a single person on provincial disability benefits in British Columbia at this time $906.42/month (BC Ministry of Social Development).  There is no possibility that disabled persons receiving disability benefits could afford daily medication at even the low end of the average use estimates under the new system.

The ‘cost’ of doing business…

This isn’t a horrible oversight on the part of the federal government. Their own documents acknowledge that a large percentage of current patients will simply be unable to access their medication under the new system.  Apparently this is just the ‘cost’ of the new way of doing business.

Well, whatever that ‘business’ is, it isn’t providing constitutionally-required access to medical cannabis.  Or, so we expect the courts will find when the inevitable constitutional challenge lands to further blight the already atrocious record of the government.

What is doubly galling is that it really doesn’t have to be this way.  Even if it could be argued that the government did not anticipate the size of some of the medical production that has been occurring in residential areas, there are several ways that the purported security and safety concerns of these could be addressed, including limiting the number of plants that could be grown in this way.

There is still a glimmer of hope that the new regulations will see some sensible amendments before they are brought in.  But it is only a glimmer of hope.  And it is beyond hope that amendments would address all the old problems with the program that the new regulations aren’t going to solve, problems like the paucity of physicians who are willing to work with the program and that the new program seemingly has no place for community-based dispensaries/compassion clubs – the only folks with a proven track record of providing access to patients.

But with all the concerns, the one right at the centre is the effective bar to access for the most sick and the most vulnerable.  The government claims that we can’t have people growing cannabis for therapeutic purposes in their residences because of the “risk of diversion”.  Essentially Canadians are being told that we need to treat these plants like caseloads of plutonium, and that justifies throwing the sick and the vulnerable under the bus.

It does not.

See our latest submission to Health Canada here.