Back to the Future: Canada’s Court-Ordered Medical Marijuana History

Canada’s medical marijuana history is a relatively short saga. Since first regulating the industry in 2001, medical marijuana in Canada has seen a steady growth. It was the 37th Canadian Parliament under the leadership Jean Chrétien and the Liberal Party that first regulated medical marijuana in Canada. Although, it should be noted that the government at the time was forced to provide this service by virtue of a court ruling. The Ontario court ruling found that not regulating medical marijuana was denying the rights of sick patients who relied on cannabis to alleviate their symptoms.

Moving forward 13 years and there is some symmetry between this foundational Ontario court ruling and the recent court injunction by Federal Court Judge Michael Manson on March 21st, 2014. As it stands now, patients who are licensed to grow their own pot (as of Sept. 30th, 2013) will be permitted to continue producing their plants despite regulations banning homegrown medical marijuana starting April 1st. Manson had asked for temporary injunction to preserve the status quo until a constitutional challenge of the new system can be heard.

As reported in the Toronto Star, “the number of people authorized to possess — and often grow — marijuana has increased to 37,000 this year from fewer than 100 in 2001. The federal government says the current licences translate to about 3.5 million plants.” Health Canada is estimating the medical marijuana industry could be worth upwards of $10 billion within the next decade.

So what changed? In 2013, the Canadian government, under the leadership of Stephen Harper, announced a “significant overhaul” of the medical marijuana system to tighten control and reduce the criminal involvement in the licensed production of the product. Despite the Government’s intentions, the patients’ lawyer said “the government had offered little concrete evidence that the medical marijuana system actually poses as many risks as it claims.”

However, during the recent Federal court hearing, a government lawyer said “there is no constitutional right to cheap medicine.” Further to this argument, a government lawyer suggested “there was no scientific evidence to show specific strains of marijuana are better suited to particular illnesses or patients.” Yet it is well understood in the medical marijuana industry that different strains do have unique properties.

The changes were slated to come into full effect in April of this year. In preparation for the transition to private marijuana producers, the government has been accepting applications from commercial growers. These new growers were to be the dominant suppliers of medical grade marijuana for Canadian patients with a doctor’s prescription. Effectively, the system overhaul amounted to a wholesale privatization of the marijuana industry in Canada.

Prior to the court injunction, the government lawyers argued that allowing patients to continue growing enough to fill their own prescriptions would “prevent the fledgling medical marijuana industry from fully developing.” Even though the injunction did not target the new commercial licensing program. It begs the question of who is really intended to benefit from the system overhaul — the producers or the patients?

Regardless, the injunction is only temporary and the new producers can still fill prescriptions for those patients who would prefer to purchase quality botanicals without the hassle of growing the product themselves. Either way, the choice should ultimately reside with the patient.

Manson, the Federal Court judge that ordered the injunction, expects that the question of constitutional rights regarding patients growing their own medical marijuana may come to trial as early as January, 2015.

Seth MacCallum
Seth MacCallum