A constitutional challenge of Health Canada’s new MMPR program is set to decide the future of medical marijuana for all Canadians.
The case is being brought by four patients of the old MMAR program, represented by B.C.-based lawyer and marijuana rights advocate John Conroy. The plaintiffs argue that the MMPR violates a patient’s rights to “life, liberty and security” set out by Section 7 of the Canadian Charter of Rights and Freedoms.
The case will be heard this summer, but since Health Canada’s new rules come into effect next month, a judge will decide on March 18 whether to extend the old program by granting an injunction.
The biggest push is for the rights of MMAR patients to continue growing for themselves. Ultimately, the plaintiffs hope to have MMAR patients grandfathered into the new system, or have the Crown compensate patients for the expenses involved with transitioning.
But the case also challenges a number of other rules set out by the new MMPR. Court documents posted on the Conroy & Company website detail the following claims regarding the alleged violation of s. 7 Charter rights, along with the Crown’s defense.
Growing your own medicine
Claim: The patients assert that the new MMPR rules “fail to provide continued personal production of their medicine by the patient or a designated caregiver” and restrict the Charter rights of a patient to have “reasonable access to their medicine by way of a safe and continuous supply.”
Defense: The Crown argues that the Charter rights “do not encompass a right to produce one’s own medication in order to avoid the cost of purchasing commercially available equivalents… this is an economic interest which is not protected by s. 7 of the Charter.”
The Crown also argues that the Charter rights “do not encompass the right to a particular drug of choice where reasonable alternatives are available,” referring to marijuana offered by Licensed Producers as the alternative.
Access to cannabis products/derivatives
Claim: The patients assert that only allowing “dried marihuana” under the MMPR and no other forms of cannabis, such as edibles or extracts, is “arbitrary and constitute an unreasonable restriction on the s. 7 Charter rights.”
Defense: The Crown argues that the R. v. Parker ruling (2000), which forced the government to establish a medical marijuana program, was based on a demonstration of the claimant Terrance Parker’s “medical need for access to dried marihuana (as opposed to cannabis derivatives or preparations).”
The Crown also argues that there is no clinical evidence of the medical benefits of derivatives; that derivatives have not been approved according to Health Canada guidelines; that the manufacturing process is “dangerous” and “of particular concern in clandestine residential laboratories”; and that allowing derivatives would make it difficult for law enforcement to “determine that a marihuana product has been produced from a legally-obtained source of dried marihuana.”
Growing outdoors or in a dwelling
Claim: The patients assert that rules prohibiting production of cannabis outdoors or in “a dwelling house” are unconstitutional, because “they might be found to be applicable to a patient generally, a patient personal producer or his or her designated caregiver.”
This, they state, would amount to arbitrary and unreasonable restrictions on a patient’s Charter right “to possess, produce and store for their medical purposes.”
Defense: The Crown argues that restrictions on production sites are “designed to mitigate the numerous public health and safety concerns” that have arisen under the MMAR. The Crown highlights a list of concerns that includes mould, fire and electrical hazards, the presence of toxic chemicals (such as pesticides and fertilizers), “noxious” odors, and the risk of violent home invasions.
The Crown also argues that a ban on outdoor production is needed “to decrease the risk of diversion as well as cross contamination with other nearby crops, particularly industrial hemp.”
Claim: The patients assert that restricting possession and storage to only a 30-day quantity of medical marijuana is unconstitutional for the same reasons as the previous claim.
Defense: The Crown argues that the limit is intended to decrease both the “risk of diversion to the illicit market” and the amount of danger that patients may face as “targets for theft and violence.”