The Smith verdict came in on Thursday, and which caught everyone off guard. Especially Health Canada. Health Canada had filed an appeal on a verdict in the lower courts, and this recent ruling means a loss for Health Canada. But is it a gain for the industry?
The devil is always in the details. I was at the IPA event in Toronto when the verdict came out, and many of us were talking about the implications. There were some notable lawyers with us, and who offered legal insight. Basically, the verdict was a 7-0 unanimous decision of the Supreme Court that a person can be in the possession of derivative forms of cannabis for the purpose of medical consumption. These are Sections 4 and 5 of the Controlled Drugs and Substances Act (CDSA). (By “derivative”, I mean the various extracts, oils, tinctures, etc made from cannabis that are pharmacologically active, including “edibles” such as cannabis cookies.)
However, the court did not comment on Section 7 of the CDSA, namely the production of derivatives. What this means is that, while it is legal for someone to be in possession of a derivative, no one is legally allowed to manufacture it. Not even licensed producers. And keep in mind that dispensaries are still illegal according to the letter of the law. So at the end of the day, the court decision seemed like a non-starter. What happens now?
On the day of the verdict, all of the news agencies had the story wrong. Every news site was stating that derivatives were now allowed in Canada, and that licensed producers would be getting ready to make them. I even had an extraction company in Colorado cold call me the day after, congratulating our country for the change in law. The next day, though, a few of the news sites picked up on the real story – that, while it was legal to possess, no one could legally manufacture them.
Around the same time, the City of Vancouver held a city hall meeting on the regulation of dispensaries, and stated that they would not permit edibles to be sold through dispensaries. The only derivative that they might allow was said to be cannabis oils.
And of course, we’ve all heard of the Health Minister’s “outrage” over the Smith verdict, which is frankly embarassing to everyone.
I don’t believe this is a non-verdict. Health Canada has a very slippery grip on the regulation of medical marijuana, and is losing the majority of significant court cases. While derivatives may not be on the table for 2015, surely it is only a matter of time before another court case compels the Harper Government to loosen the noose another inch. But then again, it’s hard to believe that the Harper Government will continue with a majority government past the Fall election.
It’s also difficult to understand the law on the derivatives issue. How can it be legal for a person to possess medical marijuana but illegal for anyone to produce it? My non-legal instinct here is that a person should have the right to a produced end-product if they have the right to possess it – but if licensed producers are not permitted to manufacture it (and they won’t take that step yet), and consumers aren’t allowed to produce them, how are they obtained?
The future of the medical marijuana industry is established. While the sales of medical marijuana from licensed producers are slowly growing, they are nowhere near their anticipated potential. Much of this has to do with the politics of allowing-while-discouraging medical marijuana consumption by the Harper Government. Health Canada only has the mandate to provide “reasonable access” to medical marijuana in the industry, and the MMPR scheme was intended to let the industry decide who the best players would be. While still not endorsing marijuana. It’s such a difficult product to regulate – and I give Health Canada full marks for bravery during this time. It should be duly noted that Health Canada, as a branch of the government, only carries out the political will of the day. When the political climate shifts, so does Health Canada. The Office of Medical Cannabis has limited staff, a difficult mandate, and a mess of political motives pulling them in different directions.
The Smith verdict was a 7-0 ruling, which is a tell-tale sign that the Harper Government is clearly out of touch with its people. If marijuana is to be allowed as a medicine – and which is what the courts have compelled Health Canada to allow – then it should be licensed and manufactured as a medicine, not as a controlled substance. As long as it is treated as a narcotic and deeply frowned upon by our Government, Canadians will be held back. People deserve the right to be made aware of this medicine, to purchase this medicine from retail outlets, and to be made aware of the benefits and potential harms. If we treat it as a medicine, we must relax the regulatory framework for the time being to permit research development into its safety and efficacy.