Kirk Tousaw: An Open Letter To Health Canada on Personal Medical Cannabis Production, Part 2
This column is part two of an open letter to Health Canada, regarding its recently published draft guidance document related to personal medical cannabis registrations. You can read part 1 here.
This column will focus primarily on the draft guidance related to what medical patients can and can’t do. Health Canada included a disclaimer that it was not providing legal advice and I adopt and restate that disclaimer. Nothing in this column is legal advice. I do have a different take from Health Canada on what the law and regulations permit.
To sum up my view: medical patients have at least the same rights as any other Canadians, and the fact that they are legally producing and possessing cannabis for medical purposes should not impose restrictions on their conduct that wouldn’t exist for recreational consumers.
Breaking Down The Act: Medical Cannabis Production
In order to understand where I’m coming from, you first have to know that in the interpretation of criminal law, any ambiguity is construed against the government and in favour of the person being accused of the criminal activity. It has sometimes been stated as a principle that whatever is not specifically prohibited is permissible. And so any particular activity, whether it is sharing cannabis or having others help you with growing it, is lawful unless some statute or regulation specifically prohibits that activity.
The starting point is the Cannabis Act, because it governs all conduct by individuals related to cannabis. In addition to the Act, there are various regulations promulgated under the Act.
The one we care about is Part 14: Access to Cannabis for Medical Purposes. Part 14 is a regulatory exception scheme that legalizes certain conduct by medical patients that would be illegal for other Canadians. Put another way, it grants medical patients registered with Health Canada certain extra rights, such as the ability to grow more than four plants and possess more than 30 grams in public.
I have to pause for a moment here to say that we need to evolve beyond a regulatory scheme for cannabis that is rooted in the criminal law power. Revisiting this prohibition-first concept should be a main focus of the next review of the Cannabis Act scheduled for 2023. That said, the system is what it is now.
Can Patients Share Their Cannabis?
Let’s consider the case of a medical patient who has registered to produce their own medical cannabis, and been granted an authorization to do so based on a 10 gram per day dosage. This person is an adult and is lawfully permitted to produce 49 plants and to possess 150 grams of cannabis in public. Our questions are whether they can share that cannabis with other adults, and whether they can enlist the aid of other adults in growing and harvesting/trimming it.
What is prohibited by the Act? Well, merely possessing cannabis is prohibited in certain circumstances:
8 (1) Unless authorized under this Act, it is prohibited
(a) for an individual who is 18 years of age or older to possess, in a public place, cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;
(b) for an individual who is 18 years of age or older to possess any cannabis that they know is illicit cannabis;
(c) for a young person to possess cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 5 g of dried cannabis;
(d) for an individual to possess, in a public place, one or more cannabis plants that are budding or flowering;
(e) for an individual to possess more than four cannabis plants that are not budding or flowering; or
(f) for an organization to possess cannabis.
Here it is important to note that the definition of “illicit cannabis” comes into play. Illicit cannabis “means cannabis that is or was sold, produced or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act.”
Our hypothetical medical patient has cannabis that was lawfully produced and is lawfully being possessed in private by an adult. It isn’t illicit, and there aren’t any organizations or minors involved.
Can they share it with other adults?
If they intend to sell it, then no. Section 10 deals with “selling” and the short answer is it would be illegal to sell this cannabis.
But what about sharing it for no compensation? Section 9 deals with “distribution,” which sharing would be, and makes only certain types of distribution unlawful:
9 (1) Unless authorized under this Act, it is prohibited
(a) for an individual who is 18 years of age or older
(i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 30 g of dried cannabis,
(ii) to distribute cannabis to an individual who is under 18 years of age,
(iii) to distribute cannabis to an organization, or
(iv) to distribute cannabis that they know is illicit cannabis;
(b) for a young person
(i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 5 g of dried cannabis,
(ii) to distribute cannabis to an organization;
(c) for an individual
(i) to distribute one or more cannabis plants that are budding or flowering, or
(ii) to distribute more than four cannabis plants that are not budding or flowering; or
(d) for an organization to distribute cannabis.
It is clearly distribution when you give away your lawfully grown medical cannabis to another person. Assuming, however, that you are not distributing more than 30 grams at a time, and you are sharing it with an adult, I can see nothing in this section that prevents you from doing so completely lawfully.
Section 321 deals with medical cannabis production by a registered person (a licensed personal or designated medical grower). This section gives you the right to cultivate a certain quantity of cannabis plants based on your license amount and the registration certificate issued by the minister.
Also in that section, you are granted the right to possess that cannabis. There are no specific restrictions in Part 14 placed on what you can do with the cannabis that you have lawfully produced and possessed. It seems to me, then, that you can do with your medical cannabis what you wish so long as you don’t otherwise violate the Act.
To be sure, Part 14 does specify that it relates to people who produce “for their own medical purposes“. If you were to register in a bad faith way with the intention of producing for others, for example, it seems to me that it would be fair for the Minister to take that into account in determining whether to revoke or suspend your license. But that is an altogether different thing entirely from whether or not you are able to share cannabis that you have, in fact, produced for your own medical use.
Why Sharing Is Important
Here it is important to underscore just how critical sharing medicine and genetics is to the health of patients. Sharing cannabis has a long history in the medical community. Patients share medicine with each other to get through tough times, crop failures, shortages and spikes in dosages needs. Patients share genetics with each other so that we can all benefit from strains that work well for particular conditions and so we can work together to increase genetic diversity and continue to build our knowledge about the plant and its efficacy.
This sharing has profound positive impacts on mental, physical and emotional well-being, and on the community it helps build and maintain. It is not hyperbole to say that the sharing of medicine and genetics with other patients has kept people alive, and improved the quality of life of countless others. Sharing should be encouraged, not deterred.
Can Patients Have Help Growing?
Another portion of the guidance document deals with whether people can help medical patients grow. Health Canada takes the position that a patient may not enlist assistance in growing, harvesting and/or trimming their cannabis. This is troubling because many patients simply can’t do the work themselves and often have friends, family members or other patients assist them. And, unfortunately, Health Canada is probably correct here. That’s because one of the Cannabis Act subsections dealing with cultivation has specific prohibitions that apply broadly:
12 (6) Unless authorized under this Act, it is prohibited for an individual who is 18 years of age or older
(a) to cultivate, propagate or harvest any cannabis plant at a place that is not their dwelling-house or to offer to do so; or
(b) to cultivate, propagate or harvest any living thing, other than a cannabis plant, from which cannabis may be extracted or otherwise obtained, or to offer to do so.
As you can see from the above, it is unlawful to cultivate, propagate or harvest cannabis anywhere you don’t live. And before you think “well you can help someone if you happen to live with them”, section 12(4) makes it unlawful to cultivate more than four plants where you do live. The bottom line is that Health Canada appears to be correct in suggesting that medical patients are unable to have others help them cultivate or harvest cannabis.
Why This Should Change
This should change: as long as a patient is not producing the cannabis for sale, they should be able to have help growing it.
Many people simply wouldn’t be able to provide for themselves without some level of assistance. Farming can be hard work and the effort required is compounded if you are dealing with physical, mental, emotional or financial challenges.
Moreover, some of the work is time-sensitive. If you harvest a large crop, you need to get it down, dried, trimmed, and stored in a timely manner or risk losing it, or seeing the quality significantly degrade. And sometimes, you just need a hand. That shouldn’t be illegal. It, too, should be encouraged.
I want to conclude this letter with two points. The first is that while I disagree with some of what Health Canada proposes, I do acknowledge that some portion of those growing under the medical access program are doing so purely to divert product to the illicit markets for sale, and that some of those folks are, to put it mildly, unsavoury characters.
I happen to think, and the available evidence supports, that this is a small percentage of the total number of people in the program. I also believe that investigating unlawful cannabis production is very easy for police and that there is no need to restrict the rights of all medical patients just because of the activities of a very few. But I acknowledge that the government is under ongoing pressure from those hostile to cannabis generally, and from some members of the general public, to not have a medical cannabis system at all. For Health Canada, ignoring the reality of diversion, however small, isn’t an option.
This leads to my second point: how best to preserve the medical rights of patients while addressing the reality of the government’s goal to reduce or eliminate the illicit cannabis market.
Conceptually, I believe that attacking the supply side of the market is the wrong approach. We should have learned from general prohibition that supply-side interventions like busting growers and dealers is completely ineffective and causes more harm than good. The same applies here. Restricting patient rights will do significant harm but will not speed the decline of the illicit market (and it is declining) in any way.
How? By Reducing Illicit Demand
My personal view is that depriving even one patient of sufficient access to medical cannabis for even one day is an unacceptable price to pay to achieve even massive reductions in illicit activity. Instead, Health Canada would do well to focus on reducing the demand for cannabis outside the legal sphere. How? There are a number of strategies.
- First, make it easier for legacy producers to “go legal”.
- Reduce the financial and paperwork burdens to enter into the legal production/processing systems.
- Encourage provinces to open up the retail regulatory systems so that there are more lawful places to obtain cannabis.
- Encourage direct to consumer sales through farmgate programs.
- Amend the marketing and advertising rules to allow cannabis to be treated more like beer and wine than tobacco and pharmaceuticals.
- Let brands build real relationships with consumers by letting them talk about what the product is likely to do.
- Get rid of the inane equivalency rules (the subject of my next column) and the arbitrary possession limits so that people can go to the store and buy what they want to, instead of maxing out at 30 grams of flower or a few grams of hash or five cans of cannabis drinks.
- Get rid of the arbitrary four plants per dwelling house restriction on personal recreational production so that people can grow their own without worrying that having five plants makes them criminals.
- Eliminate the excise tax applied to medical cannabis sales by licensed commercial medical producers/sellers.
- Encourage provinces to cover the cost of medical cannabis in provincial health care plans.
In short, take a holistic approach to the issue based on treating cannabis in accordance with its actual safety profile, and how we treat other similar substances. And get out of the mindset that restrictions, punishments, and crackdowns are the way to solve anything.