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“Cannabis Chaos in the Courts”
Paul Burstein, Barrister, Burstein-Unger

Although it was not until its decision in Parker that the Court of Appeal for Ontario first recognized that marijuana has been used for thousands of years as a medicine, and that it had been widely used in western culture until the 1930's, the contemporary Canadian legal debate over medicinal use of marijuana appears to have commenced in 1997. Twenty-five years earlier, however, the LeDain Commission had noted that "research now in progress should clear up much of the controversy in the near future". In 1997, in the trial of R. v. Clay, [decision reported at (1997), 9 C.R. (5th) 349] Mr. Burstein and I, who appeared as counsel for Mr. Clay, led evidence to demonstrate that following the LeDain Commission’s Recommendations in 1972, Health Canada had not commissioned or sponsored any studies relating to the medicinal use of marijuana. In Clay, it was argued that the marijuana possession offence was constitutionally overbroad for failing to accommodate and exempt medical use. The argument was rejected on the basis that Mr. Clay did not have standing to raise the issue of medicinal use. Nevertheless, the trial judge in Clay noted:

As an aside, Parliament may wish to take a serious look at easing the restrictions that apply to the use of marijuana for the medical uses as outlined above as well as for alleviating some of the symptoms associated with multiple sclerosis, such as pain and muscle spasm. There appears to be no merit to the widespread claim that marijuana has no therapeutic value whatsoever. In any event, as I understand it, Marinol is not available in Canada.

Later that year (1997), a trial judge granted Terence Parker a constitutional exemption to use marijuana for combating the seizures he suffered as result of his disease (epilepsy). Very soon after the trial judge’s decision in Parker, I launched a civil application in the superior court of Ontario on behalf of AIDS patient James Wakeford seeking a constitutional declaration. With respect to his right to use marijuana for medical purposes, learned motions judge (Laforme J.) had concluded that Mr. Wakeford had not exhausted his administrative remedies in relation to obtaining a medical exemption. At that initial hearing, the Crown had taken the position that, in theory at least, there was an administrative mechanism under which Mr. Wakeford could have obtained a lawful medical exemption to the criminal prohibition on marijuana. On behalf of Mr. Wakeford, I took the position that in actual fact no such administrative mechanism existed or that any such mechanism was entirely illusory and therefore there were no alternative remedies for him to exhaust. Although Mr. Wakeford’s first application was dismissed in early 1998, Mr. Justice LaForme noted, as had the trial judge in the Clay case, that the Government must take steps to address the issue of medicinal use of marijuana:

It should be obvious by now that our society must begin to seriously give consideration to the medicinal benefits of marijuana. Medical evidence and opinion, albeit not complete, clearly indicate that the time has come to examine this sincerely. In the case at bar, anectodal evidence was submitted that attempts to demonstrate the many ways in which marijuana has brought medical assistance and relief to persons suffering debilitating and deadly ailments. These include prominent professionals and others who suffer from cancer, AIDS and epilepsy, to mention only some. All speak of the relief and benefits obtained from marijuana smoking during their illnesses and treatment, all of which is described as painful and debilitating until then. In this regard they express the same concerns as Mr. Wakeford as to the availability of "clean" and affordable marijuana. All of these concerns are, in my view, valid and ought to be dealt with by Parliament if it has not done so or is not doing so. If such is not the case, the courts of this land will, without question, continue to be called upon and expected to provide a remedy for this very pressing and fundamentally important issue. Unlike government, the courts do not have the luxury of avoiding this difficult and sensitive matter until a more suitable time. Our duty is to decide such issues as they are presented to us on a case by case basis. Such an approach, in my opinion, cannot be either satisfactory or the most beneficial to the interests of our society.

Following the dismissal of his initial application, Mr. Wakeford and I spent the next 6-7 months attempting to get the Minister of Health and/or Health Canada to consider Mr. Wakeford’s "application" for a medical exemption from the criminal prohibition on marijuana. No meaningful response was ever received. In the wake of our failed efforts, I then took steps to secure a re-hearing before Laforme J. on the basis that the Crown had misrepresented the true status of the process for obtaining medical marijuana exemptions. The rehearing was conducted in March of 1999. At this rehearing the Crown tendered the "Interim Guidance Document" (which had not been provided to us until the day before the scheduled rehearing) and conceded that this document represented Health Canada’s first step in trying to create a process for granting medical exemptions. Contrary to the assertions the Government had made in support of its position at Mr. Wakeford’s initial hearing, nothing remotely similar to this program had existed at the time of Mr. Wakeford’s initial hearing. Accordingly, Mr. Justice LaForme now concluded that Mr. Wakeford was entitled to a constitutional exemption as it was apparent that there was no true medical exemption program, despite the assertions that had been made by the Crown indicating that the needs of sick people could be attended to under existing government programs.

In June 1999, Mr. Wakeford, in accordance with the terms and conditions of the Interim Guidance Document, became the first recipient of a medical exemption under s. 56 of the Controlled Drugs and Substances Act ("CDSA"). On August 6, 1999, I wrote to Dan Michols (who was then in charge of the Government’s medical marijuana program) requesting that Mr. Wakeford be provided with a "safe, secure and affordable supply" of medicinal marijuana which the Government had now authorized him to possess. Over the next six months, lengthy negotiations ensued with respect to this issue. Mr. Wakeford and I met with (then) Health Minister Alan Rock’s assistant, Paul Genest, to discuss the possibility of accessing two lawful sources - the National Institute of Drug Abuse supply in Mississippi and the G.W. Pharmaceutical supply in England. By letter, date-stamped November 23, 1999, Minister Rock wrote to Mr. Wakeford noting that "I’ll work to have our own supply as soon as possible". Some of the correspondence related to this, which was included in the Record before the courts below, is attached as Exhibit A hereto.

By letter dated December 13, 1999 (a copy of which is attached as Exhibit B hereto), I provided Health Canada with a deadline to accede to Mr. Wakeford’s request. I suggested that "Health Canada make the necessary arrangements to secure a supply of medicinal marijuana from the U.S. or the U.K. no later than Jan. 5, 2000". Health Canada took no steps to address Mr. Wakeford’s request. Consequently, early in 2000, I commenced another civil action on Mr. Wakeford’s behalf in an effort to compel Health Canada to secure a lawful supply of medicinal marijuana for Mr. Wakeford.

In February 2000, Health Canada held a "stakeholders" consultation meeting and distribution/access were identified as one of five priorities for Health Canada to attend to. This is reflected in the policy impact statement which was published together with the MMAR (i.e., the Regulations which were the subject of the challenge in the Court below) and which is attached as Exhibit C hereto. The Government was informed that "patients, advocacy groups, and some of the medical community strongly recommend that a safe, high-quality, controlled supply of marihuana be made available to patients to avoid the problems associated with growing by the patient, designated person, or unregulated distribution networks which are currently operating outside the law."

In May 2000, Mr. Wakeford’s second constitutional claim – this time for access to a safe and reliable supply of medical marijuana – was dismissed by Justice B. Wright. The learned motions court judge concluded that Mr. Wakeford was not hindered in his ability to secure a constant supply of safe marijuana and therefore the inaction of the Government did not affect or impair his right to security. In addition, the motions court judge noted that "in [his] view the Government of Canada is acting reasonably in planning to have Mr. Wakeford and others participate in clinical trials with marijuana rather than supply marijuana directly to exemptees". However, by the time the application in this case was launched in the Ontario Superior Court of Justice (i.e., June 2002) only two clinical trials, involving approximately 60 patients, had been approved and neither trial had yet to commence.

On July 31, 2000, the Ontario Court of Appeal in R. v. Parker (2000), 146 C.C.C.(3d) 193, found that the marijuana possession offence was constitutionally overbroad due to its failure to accommodate and exempt medical use. Despite the Crown’s contention to the contrary, the Court of Appeal also concluded that the Interim Guidance Document was constitutionally insufficient. In rejecting the Government’s contention that, by the time of the hearing of the Parker appeal in October, 1999, other medical users had been able to take advantage of the process, the Court of Appeal observed that the process did not seem to be working as effectively as the Government was prepared to claim:

Mr. Oscapella testified that, despite the statement by the Minister in the House of Commons that he intended there be a "15-day turnaround period", only two exemptions had been granted as of June 9, 1999. As of August 26, 1999, a further 15 applications were complete but had still not been dealt with by the Minister as of the date of the cross-examination on September 14th. These kinds of delays, which may be due to the administrative procedure, would further endanger the health of a person like Parker. The Court’s declaration of the marijuana prohibition’s global invalidity was suspended for one year in order to allow Parliament to address the deficiencies with respect to the medical marijuana issue.

In December 2000, the Minister of Health announced that a contract had been awarded to Prairie Plant Systems ("PPS") for the production of research-grade medicinal marijuana. Further details of that contract were outlined in a press release which accompanied the enactment of the new Medical Marijuana Access Regulations ("MMAR") in July, 2001. A copy of that press release, taken from the Record in the Court below, is attached as Exhibit D hereto.

In December 2001, the Minister of Health announced that medicinal marijuana produced by PPS will be used for "structured research programs" and for "authorized Canadians using it for medical purposes who agree to provide information to my department for monitoring and research purposes". This announcement was consistent with an internal memorandum from Assistant Deputy Minister Dann Michols and the draft letter from the Minister of Health that was to be sent out to medical marijuana exemptees. Those documents, taken from the Record in the Court below, are attached as Exhibit E hereto.

Throughout 2001, officials from the Minister’s office and PPS had discussions regarding the mechanism by which medicinal marijuana would be produced and then distributed to authorized Canadians. Those discussions are reflected in the evidence (i.e., an affidavit and an excerpt of cross-examination) of Cindy Cripps-Prawak, the former Director of the Office of Cannabis Medical Access, and in the evidence of Brent Zettl, the President of PPS, both of which are taken from the Record in the Court below and which are attached respectively as Exhibits F and G.

In May of 2002, the proceedings were commenced in the case at bar primarily as a result of the failure of the Government to distribute any of the medicinal marijuana that had been produced by PPS since the commencement of the contract in 2001. In support of their claim that the Government had available to it a suitable supply of safe marijuana to distribute to exemptees, the Applicants relied upon the sworn evidence of Brent Zettl, the President of PPS. Mr. Zettl deposed that a significant quantity of medicinal marijuana would be available for distribution, both for medical and for research purposes, by Christmas of 2002. Mr. Zettl’s company had managed to produce two strains of marijuana which would be suitable for distribution. According to Mr. Zettl, hundreds of kilograms of those two particular strains would be available by the end of 2002. On March 10, 2003, I spoke with Mr. Zettl and was advised that nothing had changed in the state of the evidence save for the fact that even more of that marijuana was available and that two further strains had been identified as potentially suitable for distribution.

After two years of study, consultation and research the Report of the Senate Special Committee on Illegal Drugs was released on September 4, 2002. The Special Senate Committee concluded: "The MMAR are not providing a compassionate framework for access to marijuana for therapeutic purposes and are unduly restricting the availability of marijuana for patients who may receive health benefits from its use." A copy of the chapters of the Senate Committee Report which deal with the medical marijuana issue are attached as Exhibit H hereto. The conclusions of the Senate echo the concerns expressed by Madame Justice Acton in R. v. Krieger, December 11, 2000: "I am troubled by the fact that the Canadian government has not made arrangements for a legal source of cannabis marijuana to be made available to persons who require it for therapeutic use". In that case the learned trial judge declared the production offence of the CDSA to be unconstitutional as it pertains to cannabis marijuana; however, she also noted that "I trust that if I put a stay of one year on the effect of my decision, similar to that done by the Ontario Court of Appeal , this problem will be solved within the year". Amongst other things, the Special Senate Committee recommended that the Government begin to licence "compassion clubs" to assist in supplying authorized users with medical marijuana.

The appeal from the Ontario Court of Appeal’s decision in Clay was originally scheduled to be heard by this Honourable Court on December 13, 2002. On December 9, 2002, the Canadian Minister of Justice announced the Government’s intention, within the first four months of 2003, to introduce legislation which would decriminalize the simple possession of marijuana. As a result of the Minister’s announcement, this Court wrote to counsel for the parties (which included Mr. Burstein and I on behalf of the Appellant Clay) asking whether the Court should still hear the appeal given the Minister’s announcement. A copy of that letter is attached as Exhibit I hereto. On December 12, 2002, the House of Commons Committee released its Report on Cannabis. In recommending the decriminalization of the simple possession of marijuana, the Committee concluded "that the consequences of a criminal conviction for simple possession of a cannabis product are disproportionate to the potential harms associated with personal use. This is especially true when one considers the harm caused every day by the use of licit substances like tobacco, alcohol, and some common non-prescription medications." When the parties appeared before the Supreme Court on December 13, 2002, the Court questioned counsel for the Crown as to the significance of both the Attorney General of Canada’s public statement and the findings of the Commons Committee. A copy of the transcript of that hearing is attached as Exhibit J hereto. On or about March 12, 2003, this Honourable Court contacted counsel for the parties in those appeals in an effort to reschedule the hearing of the appeals for the month of May, 2003. Within weeks of the efforts to reschedule the hearing of the appeals, the Government introduced Bill C-38, legislation which purported to "decriminalize" the simple possession of small amounts of marijuana. The appeals in those cases were heard by this Court on May 6, 2003. The Court reserved its decision. As of December, 2003, Bill C-38 had not been approved or enacted.

On January 9, 2003, Lederman J. allowed the Applicants’ application challenging the constitutional sufficiency of the medical marijuana exemption scheme created by the MMAR. Lederman J. declared the MMAR to be unconstitutional and of no force or effect. Lederman J. suspended his declaration for 6 months to allow the Government "time to fix the MMAR or otherwise provide for a legal source and supply of the drug the MMAR authorize seriously ill individuals to possess and produce, consistent with their s. 7 rights". Instead of ordering the Government to remedy the constitutional defects in any specific way, Lederman J. decided that it was best to afford the Government the "flexibility necessary to fashion a response which is suited to the circumstances". Nevertheless, in his Reasons for Judgment, Lederman J. suggested the following options:

The [Government] may, for instance, wish to continue to utilize PPS or some other entity to grow medical marijuana and provide a legal source of seeds. As far as the distribution of marijuana to qualified users is concerned, the government might consider creating properly regulated distribution centres or licensing compassion clubs, as proposed in the recent Report of the Senate Special Committee on Illegal Drugs: Cannabis. As the applicants suggest, the Special Access Program may also offer a mechanism for distributing a safe and reliable supply of medical marijuana.

The Government filed an appeal against the decision and Order of Lederman J. A copy of the Crown’s Notice of Appeal is attached as Exhibit K hereto. Rather than take any steps toward complying with the Order and/or the motions court Judge’s recommendations, the Crown did nothing other than seek a stay of the order pending the determination of the appeal. The Crown’s application for a stay of Lederman J.’s Order was dismissed on June 25, 2003, by Carthy J.A., sitting in Chambers. A copy of Carthy J.A.’s endorsement is attached as Exhibit L hereto. In dismissing the Crown’s application for a further suspension of Lederman J.’s order, Carthy J.A. stated: ... A stay would effectively extend the six month suspension to the hearing date with no evidence or rationale supporting doing so except that the appeal hearing is approaching.

Lederman J. granted the postponement to enable something to be done, not to enable an appeal to be completed. Why shouldn’t his judgment take effect? Is there prejudice? Is more time needed? No evidence is put forward to answer these questions or to address why the six month period was inappropriate.

On July 8, 2003, the day before the Order of Lederman J. was set to take effect, the Government announced that it had implemented a new "interim policy" that would permit PPS to lawfully distribute marijuana to medical users who were authorized to possess. Attached hereto as Exhibit M is a copy of the Motion to Adduce Fresh Evidence, returnable on July 29, 2003, at the hearing of the appeal in the Court below, which the Crown tendered in support of its position. As the materials (i.e., the amended regulation) state, this regulatory amendment was "being implemented on an interim basis only, until the Government of Canada’s role and responsibilities with respect to the source and supply of marihuana for medical purposes are clarified by the Courts". Under Health Canada’s new interim policy and regulatory amendments, a patient could only access the PPS-grown marijuana through a doctor.

On the same day that Health Canada announced that it was implementing its new interim policy and regulatory amendments pending the hearing and disposition of the appeal in the Court below, the Canadian Medical Association issued a press release recommending that doctors "not participate in dispensing marijuana under existing regulations, and [warned] that those who do, do so at their professional and legal peril". A copy of the press release is attached as Exhibit N hereto.

Almost immediately following Health Canada’s announcement of its new "interim policy and regulatory amendments", several medical marijuana users, including a number of the Applicants in this case, approached me about applying for access to the Government’s supply of dried marijuana. I have since spoken to many of the medical marijuana users who, after substantial delays, have managed to gain access to a supply of the Government’s PPS-marijuana. Almost all of them have complained about the quality of the marijuana that has been provided to them. Most have found that the marijuana provided by the Government has little or no beneficial effect. I have also discussed this matter with Brent Zettl, the President of PPS. Mr. Zettl advises me, and I do verily believe, that Health Canada has required PPS to blend lower-THC strains with the higher-THC strains of marijuana which PPS has produced. He also has advised me that Health Canada has insisted that PPS grind the entire dried plant – i.e., stalk, leaf and "bud" – into a single mixture which is then shipped to the medical marijuana users. Marijuana smokers would not normally consume the stalk and the leaf as there is very little THC in those portions of the dried plant. It is the dried flower tops, commonly referred to as "buds", which contain the active ingredients. As a result of the poor production quality of the PPS-marijuana, several authorized medical marijuana have chosen to cancel their subscription for the Government supply in favour of the vagaries of the black market.

The hearing before the Court of Appeal for Ontario in this case took place on July 29, 30 and 31, 2003. The Court reserved its decision until October 7, 2003. At the conclusion of the hearing of the appeal, the Crown sought an interim stay of the order of Lederman J. The Court of Appeal rejected the request, stating:

We do not propose to make any order. In declining to make any order, we rely on the Crown’s stated intention to operate under its interim policy (July 9, 2003) pending the decision of this court. Should circumstances change, any party may, on proper notice, make application to the court for interim relief pending release of the reasons.

A copy of the Court’s endorsement is attached as Exhibit O hereto.

On October 7, 2003, the Court of Appeal dismissed the Crown’s appeal and allowed, in part, the cross-appeal. However, the Court saw fit to set aside the Order of Lederman J. and to replace it with a much different constitutional declaration. The Court concluded that the MMAR violated the Charter both in terms of the undue restrictions placed on those who apply for authorization to posses marijuana for medical purposes and in terms of those who, once authorized, seek to gain access to a safe and reliable supply of medical marijuana. Unlike Lederman J., the Court of Appeal sought to remedy the constitutional defects by way of severing some of the provisions in the MMAR. In crafting the remedy, the Court of Appeal expressed its concern that the severed provisions created "barriers [which] effectively prevent the emergence of lawfully sanctioned ‘compassion clubs’ or any other efficient form of supply to ATP holders". In refusing to suspend its declaration, the Court noted:

... a central component of the Government’s case [before the Court] is that there is an established part of the black market, which was historically provided a safe source of marihuana to those with medical need for it, and that there is therefore no supply issue. The Government says that these "unlicensed suppliers" should continue to serve as the source of supply for those with a medical exemption. Since our remedy in effect simply clears the way for a licensing of these suppliers, the Government cannot be heard to argue that our remedy is unworkable.

In the weeks following the release of the Court of Appeal’s decision, I have spoken with 5 to 10 people each and every week who have sought advice on obtaining a licence which would allow them to grow for more than one authorized medical marijuana user. I have consulted with a number of compassion clubs located in Ontario and in British Columbia. I have advised the directors of those clubs to write to Health Canada to seek clarification as to what the Government would require in order for a compassion club to obtain the type of licence contemplated by the Court of Appeal. Other than referring people to the text of the Court of Appeal’s judgment in this case, Health Canada has provided no guidance with respect to the criteria which must be satisfied before such a licence would be issued to a compassion club. Attached hereto as Exhibit P is an exchange of correspondence between one such compassion club and the Government’s Office of Cannabis Medical Access. In short, notwithstanding the Court of Appeal’s decision in this case, I am not aware of anyone in Canada having been granted a licence to grow for more than one authorized user of medical marijuana.

On December 8, 2003, Health Canada announced its "response to the October 2003 Ontario Court of Appeal decision in Hitzig et al. v. Her Majesty the Queen", a copy of which is attached as Exhibit Q hereto. While "entrenching into the Regulations the Government of Canada’s commitment to continue to supply dried marihuana to authorized individuals", the Government chose to maintain the "[existing] limitations on production of marihuana by designated growers": "Designated-person Production Licence holders can grow for only one holder of an Authorization to Possess; and, not more than three holders of licences to produce can cultivate together". The Government’s press release acknowledged that:

While the Court imposed a remedy to address the constitutional shortcomings it had identified in its decision, the Court clearly stated the Government of Canada could adopt an alternate remedy to address the issue of reasonable access to a legal source of marihuana for medical purposes. The Government of Canada believes its actions are consistent with the principles set out in the Court’s decision, ensuring the constitutionality of the MMAR....

On December 17, 2003, the Government released the Regulations Amending the Marihuana Medical Access Regulations, a copy of which is attached hereto as Exhibit R. None of the Applicants (nor, to my knowledge, any other medical marijuana user) were consulted in the process.

It has proven to be very expensive and time-consuming to repeatedly litigate the several constitutional challenges to the Government’s failure to provide seriously ill Canadians with safe and reliable access to medical marijuana. The litigants involves in these cases have generally been indigent and, thus, have had to make efforts to raise enough money to pay for the expensive disbursements associated with this litigation (e.g., the costs of photocopying and binding a large evidentiary record, the costs of retaining expert witnesses, etc.). It is increasingly more difficult to find lawyers who are willing to contribute on a pro bono basis the hundreds of hours required to conduct such litigation on behalf of these litigants. Indeed, the litigation in the courts below consumed hundreds of hours of preparation and thousands of dollars in disbursements. Based on my experience in raising funds to support the litigation of these types of constitutional challenges, it will be very difficult to secure the necessary financial support to launch a fresh court action in front of a new judge who will need to be educated on the recent legal history of medical marijuana in Canada.