Kirk Tousaw: An Open Letter To Health Canada on Personal Medical Cannabis Production, Part 1
Yogi Berra: “It’s like déjà vu all over again.”
Jean-Baptiste Alphonse Karr: “Plus ça change, plus c’est la même chose.” (The more things change, the more they stay the same)
Michael Corleone, played by Al Pacino in The Godfather Part III: “Just when I thought I was out… they pull me back in.”
This month’s column, and next, take the form of an open letter to Health Canada in response to their recent publication of a draft guidance document related to personal medical cannabis production.
Dear Health Canada,
About a year ago, I started to get nervous. I was seeing things I’ve seen before, and reading press releases I’ve read before, and looking at pictures I’ve looked at before: pictures of cannabis growing, staged photos with cannabis on folding tables with other drugs and guns and money, and lots of police officers crowded around. Allegations that the regulations governing personal and medical production of cannabis were being abused, that the illicit recreational market was being propped up by patients, that organized crime was getting involved. No statistics, though. No evidentiary support that this is a real problem. That, too, wasn’t new.
All of this took me back to 2005, then again to 2008, then to 2012, then to 2016. Because none of this is new, and little of it is true. I worry that lessons haven’t been learned. That lies haven’t been put to pasture. And I’m terrified that despite cannabis now being legal for recreational purposes, the still-existing stigma, pain and fear imposed upon medical patients is going to get even worse.
And I fear that we are all going to end up in the same place again – a courtroom, in front of a judge, arguing about patients’ rights and the scope of the Charter’s protections for sick and suffering citizens who obtain relief from the medical cannabis they produce for themselves.
And while the idea of getting the band back together again and taking another run at the rules has a certain level of excitement to it, I really, really don’t want that. Nor should you.
Because, as you may recall, you lose these fights. A lot. You lost in 2005 (Hitzig) and in 2008 (Beren) and in 2012 (Smith) and in 2016 (Allard). The irony is that despite almost two decades of a litany of litigation, and the legalization of cannabis production and possession for recreational purposes in 2018, the personal medical cannabis production regulation in place today in 2021 is nearly identical to the one you created in 2002. It still isn’t good enough. It never has been. And making it worse doesn’t serve the public interest in any way.
The press campaign that police, and certain provinces, have put on over the last year or so seems to have led to Health Canada’s decision to issue a “draft guidance on personal production of cannabis for medical purposes” and to seek public comment upon it.
These are my comments.
The Parts of Personal Medical Cannabis Production Health Canada Doesn’t See
As a general matter, public policy is best crafted outside the courtroom. But the general direction of the guidance document reads as an attempt to lay out justifications for increased restrictions on patient conduct. Restrictions that would, in my (non-legal) opinion, almost certainly run afoul of the Charter and the long history of jurisprudence in this area. Generally, the draft guidance document seems to take particular issue with high dosage patients, implying that high dosages are inherently suspect or nefarious. This ignores the reality of patient cannabis use and plant medicine production.
With that in mind, I’d like to offer some specific comments on various portions of the draft guidance document. Health Canada advises that as of September 2020, there were 43,000 self or designated producers representing 10 percent of total registrants in the medical system. Health Canada suggests that since cannabis legalization in 2018 new trends of increased daily dosages for those who want to grow for themselves have occurred, whereas patients who buy from commercial producers have remained steady.
Stop me if you’ve heard this one before. I certainly have. Health Canada has taken the position that high dosages for personal medical cannabis production has been trending up many times in the past (see, for example, the court cases referenced above), which makes me wary of uncritically accepting this assertion.
Perhaps they are. But so what? There are many reasons why those who produce for themselves would have higher dosages than those who buy from commercial growers.
Perhaps most obviously, buying medical cannabis is really expensive. The federal government has not helped this at all and refuses to remove the excise tax from medical cannabis, making it needlessly more expensive for patients. Provinces don’t cover the costs under provincial medical systems. Patients with higher needs, then, will naturally gravitate toward producing for themselves because of the cost of purchasing high dosages.
For example, if you need two grams a day and it costs you $6 per gram, you pay $12 per day for your medicine. If you need 10 grams a day, your medicine costs you $60 per day, every day. It should go without saying that very few people can afford anything approaching that. Even fewer chronically ill people can afford that. If you require a lot of cannabis, growing for yourself is often the only viable option. This selection bias seems pretty obvious.
Moreover, the regulations tie plant counts directly to daily dosages. There are many practical, and completely innocuous reasons why a high plant count would be necessary and/or useful to a patient seeking to maintain a consistent supply of medicine. For instance, the patient may not have the ability or desire to grow year-round. Farming is hard work and someone may prefer to grow a year’s supply in one three month cycle rather than produce all year, every year. Enter higher plant counts.
Patients may want to produce more in each cycle as a hedge against bad crops or other crop failures. When you use cannabis for medical purposes, running out can mean pain, decreased quality of life, economic calamity and even death. You’d rather have more than you need than less than you require. More plants also help a grower maintain consistent cycles by keeping mother plants and clones at the ready, to do some research with different strains, to breed new genetics and still maintain a consistent supply of what that patient knows works for them.
Patients, especially high dosage patients, also often prefer or require derivative products. There was a fair bit of testimony in the Smith case about this. These derivatives can require much more input material in order to end up with sufficient quantities of the end product.
For example, 1,000 grams of freshly frozen cannabis flower processed into rosin (a concentrated form of hash produced without organic solvents) yields anywhere from 10 to 20 grams of the finished product. High dosage consumers can fairly easily go through multiple grams of rosin per day, either by inhalation or by using it for edible products. And so what looks like a lot actually ends up being very little when the medically active compounds are isolated from the plant material.
Patients might also want to grow enough to last after their medical production license expires because physicians willing to sign production registrations, particularly high dosage ones, remain hard to find and renewals continue to take unacceptably long to process.
Underlying all these practical considerations is a more basic and, ahem, Charter relevant consideration: plant counts themselves are inherently arbitrary. A grower can often produce the exact same amount of cannabis with three plants that they can with 300 if the other conditions are the same.
For example, a three light indoor room has an upper production limit that has nothing at all to do with the plants count, but everything to do with physical space and lighting constraints. But growing a bunch of small plants may be preferred because if a couple die, you don’t lose all your medicine. For people with physical limitations, tending large plants may be impossible. I could go on. We did so in Allard, among other cases. The entire idea of plant counts is based in fundamentally illogical, prohibition-based and stigmatizing ways of thinking about cannabis. Ways that I’d hoped we’d set aside now that cannabis has been legalized.
In addition to the attempt to stigmatize high dosage patients, the guidance document contains extremely problematic language that seems to impose restrictions on patients that simply don’t exist for other adult Canadians.
For example, Health Canada says that patients can’t share their legally produced medical cannabis with anyone else. Wait a second. An adult that legally grows cannabis recreationally can share it with another adult…but if a patient shares their legally produced cannabis they could have their rights taken away?
Here, readers, we will have to pause in our review of the draft guidance document. Have no fear, however. I have many thoughts to share with you, and with Health Canada, on the topic of what patients can and can’t do with their medicine and their plants. Those will be the subject of next month’s column.
For those interested in making a submission on this draft guidance document, the consultation period is open until May 7, 2021. I encourage you to take some time to let Health Canada know your views on these topics and I promise to conclude my letter in enough time to let you consider it before that deadline.