Marijuana's journey to legal health treatment: the Canadian experience

For more than 70 years, possession of marijuana has been a crime in Canada. For most of that time, there were no exceptions for anyone using it for medical reasons, but in recent years the restrictions have changed.

At first, enforcement of the prohibition on marijuana was sporadic. In the 1930s and 40s, the Canadian legal system averaged just one or two prosecutions a year. But as the underground distribution and use of the drug rose, so did the number of prosecutions.

By the late 1960s recreational marijuana use had grown to the point that hundreds, and eventually thousands, of young Canadians a year were being introduced to the criminal justice system thanks to their use of pot.

The most recent stats show that more than 40,000 Canadians are charged with marijuana possession every year. Cannabis sativa has become by far the most popular illegal drug in the country, with some surveys suggesting that 10 million Canadians aged 15 or older have used marijuana at least once in their lives. 

But not all marijuana use is recreational. The growing prevalence of pot use included many people who began experimenting with marijuana's medicinal properties — using the drug not primarily to get high, but to address a specific health complaint.

Prescription to proscription

That marked a return to marijuana's early history in North America, when it enjoyed such widespread use in the 19th century that it was routinely prescribed for such conditions as rheumatism and was even sold in drug stores. 

'Smoking [medical marijuana] is not recommended. Some individuals use marijuana in foods, teas or with a vaporizer' —Health Canada patient information leaflet

But the adoption of strict drug laws in the 1930s put an abrupt end to the legal use of marijuana for any reason — including as a health product.  Medicinal marijuana use was driven underground for decades to come.

By the 1990s, the pressure to revisit marijuana's health uses was building. Surveys found that 80 per cent of Canadians favoured legalizing marijuana use for medical reasons. Non-profit groups — often called compassion clubs — sprang up across Canada to facilitate the distribution of marijuana to members who said the drug provided them relief from a variety of health complaints that no other medication could match.

Challenges grow

Other users made no secret of their use of marijuana for their ills, and they openly challenged authorities to lay possession charges, which the authorities did. The case of one such user — Terrence Parker — was the one that changed everything.

The Toronto man had been charged with pot possession many times, as he made no secret of using it to control his epileptic seizures. But his lawyers used a different defence for his 1996 charges. This time, they said the charges violated Parker's charter rights.

The defence worked. On Dec. 10, 1997, a judge ruled that people must be able to access necessary medical treatment without fear of arrest. Parker became the first Canadian to be exempted from further prosecution for either possession or cultivation of marijuana. A subsequent appeal upheld the lower court ruling. Justice Mark Rosenberg of the Ontario Court of Appeal wrote that "forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person."

Still, the legal evolution of medical marijuana had more distance to go. There were no guidelines on how the few Canadians who'd been given an exemption from Canada's marijuana possession laws were supposed to get their drug — which, after all, was still illegal to distribute.

A medical marijuana template is born

In 2001, Ottawa came up with a solution to the problem, making Canada the first country to adopt a formal system to regulate the medicinal use of marijuana — the Marijuana Medical Access Regulations.

The policy allowed people suffering from terminal illnesses or severe conditions such as epilepsy, AIDS, multiple sclerosis and cancer to use the drug if it eased their symptoms.

Some people would be able to grow marijuana themselves under strict guidelines. Others would be allowed to buy it from companies licensed by the government. Ottawa awarded the first (and so far, the only) federal licence to supply marijuana to a Saskatoon-based company, Prairie Plant Systems. The pot is grown in an underground mine in Flin Flon, Man.

In early 2003, the Supreme Court of Ontario ruled that the medical access regulations were unconstitutional because they were failing to provide a legal supply of the drug. Ottawa responded later that year with a plan to provide dried marijuana or seeds to Canadians authorized to take marijuana for medical reasons. That plan — occasionally tweaked — remains largely intact to this day.   

The specifics

So far, the exemption from criminal prosecution for marijuana possession applies to about 4,000 Canadians — patients who have satisfied the rigorous medical and legal conditions Ottawa has set to win the official all-clear.

By some estimates, hundreds of thousands of other Canadians may also be using marijuana for medical reasons, but have not formally applied for authorization to make their use legal.

Why so few? Well, there's a lot of paperwork, for one thing. People who want to use marijuana legitimately must submit a detailed application for authorization and include two photos. Their doctor must also fill out a medical form that spells out why the applicant's medical condition satisfies the conditions for an authorization. Depending on the nature and severity of the illness, the doctor will be asked to spell out that conventional therapies failed or were medically inappropriate.

If the person wants to grow their own, they must complete another application for a licence to produce marijuana. If they want to buy seeds … another application. If they can't grow their own, their "designated person" must apply for a licence. This representative must also pass a criminal records check.  

And then there's the issue of the supply. Fewer than 20 per cent of the people approved for medical marijuana get it from Prairie Plant Systems (PPS) — the only government-approved supplier.

Some users complain about the quality of the federal cannabis or say they need a different strain of pot than the single standardized one produced by PPS. As a result, many choose to grow their own or head to the black market.

Activists have long wanted Ottawa to loosen the rules that prevent providers (other than PPS) from supplying more than one patient. New rules were implemented in 2009 to allow designated producers to grow marijuana for one additional approved user — to a maximum of two. But that fell far short of what many in the community had wanted. 

In December 2009, Health Canada gave a B.C. man permission to grow up to 292 marijuana plants. But Sam Mellace is not planning to smoke his harvest. Mellace has a chronic pain condition and needs that many plants to produce enough cannabinoid compound for a cream he uses.

He would like to sell his cream to other medical marijuana users. But under current rules, that isn't allowed.   

There are also patients arguing that the government should help them shoulder the financial burden of growing their own medicinal supply of marijuana. In June 2011, for example, the Nova Scotia Supreme Court ordered the Nova Scotia government to sponsor the medical marijuana growing operation of a woman who says she's too poor to pay for the equipment herself. The Department of Community Services must pay a one-time setup cost of $2,500 and an additional $100 every three months for supplies, an appeal board ruled.

The Income Assistance Appeals Board concluded that the woman's need for marijuana was real, and since she has no other means, the department should assist her rather than pay for her pot. The board stated that her request seems reasonable in comparison to what the department pays for other medications.

Even so, eight years into the adoption of the Marijuana Medical Access Regulations, many activists remain frustrated with the bureaucracy and the limitations. Ottawa has shown little enthusiasm for further loosening the legal restrictions on a drug that it says still deserves a tight leash.