Social & Medical Cannabis Issues: Past, Present & the Future
John W. Conroy QC Kirk Tousaw
Canadian Bar Association British Columbia Branch Conference 2016 April 8-9 | Whistler, BC
INDEX
Page
A. Cannabis - Overview ...... 1 Cannabis as Medicine ...... 2 B. Then Reefer Madness ...... 4 Canada ...... 4 Canada’s Reefer Madness ...... 5 Marihuana or Marijuana? ...... 5 The UN Role ...... 5 Prohibition of Canada ...... 6 C. Medical Regulations in Canada ...... 19 Access ...... 20 The Market ...... 20 Menu ...... 20 British Columbia ...... 21 Case Law on Medical Use and Access in Canada ...... 21 MMAR ...... 23 MMAR to MMPR ...... 24 Allard v. Canada ...... 24 The ambit of the Injunction ...... 24 The cracks in its ambit ...... 24 Injunction Appeal ...... 24 R. v. Smith ...... 25 Allard v. Canada – Final Trial Decision – February 24 2016 ...... 26 D. Legalization ...... 32 E. Impaired Driving ...... 42 Bibliography ...... 52 Appendices ...... 56
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A. Cannabis - Overview
In 2014, the American Herbal Pharmacopeia added Cannabis to the pharmacopeia and have published an abstract entitled "Cannabis Inflorescence – Cannabis spp. - Standards of Identity, Analysis and Quality Control” and that is available at: http://www.stcm.ch/files/us-herbal-pharmacopoeia_cannabis-monography.pdf and is recommended as an up-to-date publication on nomenclature, identification, commercial sources and handling, constituents, analytical aspects, international status and references for Cannabis generally.
For a complete current virtual encyclopedia on cannabis see Cannabis Evolution and Ethnobotany by Robert C. Clarke and Mark Merlin, University of California Press 2013 www.ucpress.edu. To see how it is rapidly it is becoming mainstream see the special Newsweek edition “Weed Nation – Is America ready for a Legalized Future?” March 24, 2015. Also another example is the June 2015 edition of National Geographic, “Weed – The New Science of Marijuana”.
In popular culture it has historically been portrayed as being smoked in its dry form in a cigarette or joint or reefer much like a cigarette of tobacco and being deeply inhaled and thereby providing rapid onset into the bloodstream through the pallet to provide a mild euphoric or sedative state, depending to some extent on the composition of the particular sample of what’s going on in the body of the subject during the smoking. Alternative methods of ingestion have been developed, such as vaporizers and other devices, particularly as concentrates and extracts are being developed. Another major method of ingestion is through edibles or baked goods that take several hours to take effect because it has to pass through your digestive system where it apparently becomes several times stronger spreads throughout the body.
Perhaps the most up-to-date information on this topic is contained in the recently published Handbook of Cannabis edited by Roger G. Pertwee and published in 2014 by the Oxford University Press. The Preface to that Handbook opens as follows:
“The pharmacological effects of cannabis have been exploited for over 4800 years for recreational, medicinal, or religious purposes. However, it is less than 100 years since the chemicals in cannabis responsible for the production of some of its effects and the pharmacological actions of some of these chemicals were identified. Particularly noteworthy advances have been the discovery that cannabis is the source of a family of at least 104 compounds, now known as phytocannabinoids that one of these compounds is delta–9– tetrahydrocannabinol (THC), and that this is the main psychoactive constituent of cannabis. No less important was the elucidation of the chemical structure of THC, its chemical synthesis, its pharmacological characterization, and the discovery in the late 1980s that it produces many of its effects by activating a G protein – coupled receptor now known as the CB1 receptor. Importantly, these major findings were followed by the discovery in the early 1990s first, that our tissues produce chemicals called endocannabinoids that activate this receptor, second, that another cannabinoid receptor, the CB 2 receptor, is also activated by both THC and 2 endocannabinoids, and third, that this “endocannabinoid system” of cannabinoid receptors and endogenous agonists modulates the unwanted symptoms or even the progression of a number of disorders, often in an “auto protective” manner”.”
What I have come to understand this to mean from listening to and cross-examining experts in now a variety of cases on this topic is that all humans have an endocannabinod system whereby certain things cause us to secrete or release dopamine in relatively small amounts that bind upon our receptor sites throughout our bodies. The consumption of cannabis mimics that process that causes us to produce significantly more dopamine that binds on the different receptor sites. The impact on the individual will differ depending upon precisely what cannabinoids and other ingredients such as flavinoids and terpenes are in the sample being consumed and what might be going on in a particular body that is taking it in. Essentially, it attempts to modulate or regulate such things as inflammation or other discomforts to establish or reestablish “homeostasis” or restore balance or equilibrium. The current research recommends something called the “entourage” effect from a combination of cannabinoids, flavinoids and terpenes without undue emphasis on THC which can result in taking away from what is brought by the others.
Cannabis as Medicine
Marijuana (Cannabis Sativa or Indica) and its derivatives like Hashish, and like the opiates and their derivatives, has enjoyed widespread use for medical purposes for thousands of years. According to the 1998 report of the House of Lords Select Committee on Science and Technology, “Cannabis, the Scientific and Medical Evidence”, marihuana, like many other herbs, has been used in Asian and Middle Eastern countries for at least 2600 years for medicinal purposes.
Cannabis first appeared in Western medicine in 60 AD in the Herbal of Dioscorides and was listed in subsequent herbals or pharmacopoeia since that time. It has been widely used for a variety of ailments, including muscle spasms, in the nineteenth century. In the 1930’s, the advent of synthetic drugs led to the abandonment of many 3 ancient herbal remedies including marihuana, although an extract of cannabis and a tincture of cannabis remained in the British Pharmaceutical Codex of 1949.
USA
Doctors in the United States officially recognized its therapeutic value as early as the 1840s, including it in the United States Pharmacopoeia from 1850 through 1942. The United States government accepted and even encouraged the medicinal uses of marijuana. USDA Farmer’s Bulletin No. 663 (in print from 1915–1935) provided instructions on growing cannabis sativa for medical/pharmaceutical purposes. The Journal of the American Medical Association, reported that between 1840 and 1900, European and American medical journals published more than 100 articles on the therapeutic uses of cannabis. In the second half of the 1800’s, fluid extracts of cannabis were marketed by Parke Davis, Squibb, Lilly, and Burroughs Wellcome. Grimault and Sons manufactured cannabis cigarettes as an asthma relief. While smoking for asthma seems counterintuitive, it apparently expands the small airways unlike nicotine, which plugs them up.
Early Extracts
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B. Then Reefer Madness!
Cannabis became prohibited in various states across the USA, commencing in Utah, and appears to have its genesis in racism against the Mexican population. Mormons who had previously fled to Mexico acquired the habit leading to the first prohibition and deporting Mexicans was just like the Chinese before them in the suppression of opium. Prohibition spread westward across the States as the new evil post alcohol before Cannabis was prohibited federally in the USA in 1937.
Canada
In Canada, the possession, production, possession for the purpose of trafficking, trafficking and importing or exporting of Cannabis is prohibited as a result of the Federal Controlled Drugs and Substances Act (CDSA -enacted under the federal “criminal law” power) that came into force in 1996 repealing its forerunner the Narcotic Control Act 1961 that in turn replaced the Opium and Narcotic Act 1911 that came into force as a way to control the Chinese population and its use of opium and as a way to economically control that population due to the racial unrest directed towards them after they helped build the railroad’s, it being alleged that the labor surplus of the day 5 was due to the Chinese labor force and that white women were being seduced by “yellow peril” in the opium dens in Vancouver, Victoria and New Westminster, BC that led to riots that destroyed ,among other things, some supplies of opium. The Act was introduced by Mackenzie King, then Minister of Labor as a result of numerous claims for loss of opium product by Chinese persons after the race riots. A subsequent review of the Dominion Annual Statistics discloses repeated entries “Chinaman deported – possession of opium product”.
Canada’s Reefer madness
Cannabis was added to the schedule pursuant to the Opium and Narcotic Act and later the Narcotic Control Act in 1923. There was no particular Cannabis problem in existence in Canada at the time, but events south of the border in the USA received lots of media attention, and a book called “The Black Candle” by “Janey Canuck”(a.k.a. Emily Murphy” that was serialized in Maclean’s magazine across the country apparently had some significant effect.
Currently it is listed in schedule II to the Controlled Drugs and Substances Act (CDSA).
Marihuana or Marijuana?
It is believed that the spelling “marihuana” in Canadian legislation, instead of “marijuana” was simply as a result of the pronouncing of the “j” as an “h” in the Spanish language without understanding or realizing and has been carried forward ever since in Canada. What is prohibited is “Cannabis, its preparations, derivatives and similar synthetic preparations, including a list of 8 specific such items, including Cannabis Resin, Cannabis (Marihuana), Cannabidiol, Cannabinol, Nabilone, Pyrahexyl, THC, and DMHP, but not including nonviable cannabis seed with the exception of its derivatives and mature Canada stalks that do not include leaves, flowers, seeds, or branches; and the fibers derived from such stalks.
The UN role
As a result of the UN Single Convention on Narcotic Drugs 1961 and the Convention on Psychotropic Drugs 1971 many governments were encouraged and enacted prohibitionist legislation or ramped up enforcement of existing legislation leading to the “war on drugs” internationally that continues today as ineffectively as when it was introduced. It is perhaps worth noting that international treaties entered into by the Government of Canada are not self-implementing and do not form part of the law of the land and require domestic legislation to implement them such as our current Controlled Drugs and Substances Act and also that all laws, since 1982 when we became a constitutional democracy are subject to the Constitution and the Charter of rights and freedoms in particular.
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Prohibition in Canada
The prohibition against Cannabis generally is under Canada’s criminal law originally in the form of the Opium and Narcotic Act followed by the Narcotic Control Act and then currently the Controlled Drugs and Substances Act. This prohibition generally was challenged in the cases of R. v. Malmo-Levine; R. v. Caine [2003] 3 SCR 571 from British Columbia (http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2109/index.do) and a companion case from Ontario R v. Clay [2003] 3 SCR 735: http://www.canlii.org/en/ca/scc/doc/2003/2003scc75/2003scc75.html?autocompleteStr= %5B2003%5D%203%20SCR%20735&autocompletePos=1 that were all heard together by the Supreme Court of Canada.
The Court, in a 6 – 3 Judgment, upheld the constitutionality of the federal criminal law prohibition because it was accepted that marihuana is a psychoactive drug which “causes alteration of mental function”, the findings of fact in the court’s below with respect to “harm” was neither insignificant nor trivial and because of the existence of certain groups that were particularly vulnerable to its effects, although relatively small in number but significant in absolute terms as a percentage of all marihuana users. On the evidence pregnant women and schizophrenics were said to be at particular risk. Advancing the protection of these and other vulnerable individuals through criminalization of the possession of marihuana was held to be a policy choice falling within the legislated scope conferred on Parliament. The court noted, however, that it was equally open to Parliament to decriminalize or otherwise modify any aspect of the marihuana laws that it no longer considered to be good public policy.
The court held that the control of a psychoactive drug that causes alteration in mental function raises issues of public health and safety for the user and broader society affected by his or her conduct and was therefore the proper subject matter of the exercise of the criminal law power. That power is plenary in nature and has been broadly construed. The purpose of the Narcotic Control Act fit within the criminal law power which includes the protection of vulnerable groups. It was therefore unnecessary to determine if it also fell within the peace, order and good government power.
While the availability of imprisonment for the offence of simple possession was sufficient to trigger scrutiny under s.7 of the Charter the building of a lifestyle around recreational use did not attract Charter protection.
The “harm principle” was not a principle of fundamental justice for the purposes of s.7 of the Charter and importantly in context of constitutional litigation the Court pointed out that the balancing of individual and societal interests within s.7 is only relevant when elucidating a particular principle of fundamental justice but otherwise “societal interests” such as health care costs are not within the ambit of s.7 but will be looked at, if at all, under s.1.
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Nevertheless the State has an interest in avoidance of harm to those subject to its laws which may justify legislative action. The harm need not be shown to be “serious and substantial” and as long as it is not “de minimis” or not “insignificant or trivial” the precise weighing and calculation of the nature and extent of the harm is up to Parliament.
The court held that this criminal law had not been shown to be arbitrary or irrational so as to infringe s.7 of the Charter due to the State interest to avoid harm to its citizens because it is a psychoactive drug whose “use causes alteration of mental function” that creates a potential harm to others when the user engages in driving, flying and other activities involving complex machinery. Chronic users may suffer “serious” health problems. Vulnerable groups are at particular risk, including adolescents with a history of poor school performance, pregnant women and persons with pre-existing conditions such as cardio vascular diseases, respiratory diseases, schizophrenia or other drug dependency. These facts provide a sufficient State interest to support Parliament’s intervention subject to a Constitutional standard of gross disproportionality. Just because Parliament has not taken the same approach with respect to alcohol or tobacco does not mean on that account alone that the law is arbitrary or irrational.
On the question of punishment the court held that it should be approached in light of s.12 of the Charter, namely the protection against “cruel and unusual treatment or punishment” and a test of “gross disproportionality” being applied as the Constitutional standard. It noted the lack of mandatory minimum sentences and well established sentencing principles as countering a violation of the principle against gross disproportionality. It is to be noted that subsequently mandatory minimums have been put in place for production, trafficking and possession for the purposes of trafficking and while some have been challenged successfully in the courts, some continue to exist. See for example the recent decision of Fenlon J.(as she then was) in R. v. Elliott, 2016 BCSC 393.
R. v. Elliott - KE 78741-2 - 16-Feb-16 - 2016BCSC393.pdf
The court in Malmo-Levine (supra) noted that imprisonment was one of the available options in the absence of a mandatory minimum and noted the significant discretion in sentencing judges and that conditional discharges are the most common sentence for simple possession. The court also found that the enforcement of the prohibition was not so grossly disproportionate as to render the prohibition on marihuana possession contrary to s.7 of the Charter in terms of the effects on the accused of enforcement. Ultimately the court held that the accused had not established the infringement of the s.7 Charter right so there was no need to call on the government for s.1 justification.
With respect to the court’s role on the wisdom of the criminalization of simple possession of marihuana versus the role of Parliament, the court said:
“5. The appellants have assembled much evidence and argument attacking the wisdom of the criminalization of simple possession of marihuana. They say 8
that the line between criminal and non-criminal conduct has been drawn inappropriately and that the evil effects of the law against marihuana outweigh the benefits, if any, associated with its prohibition. These are matters of legitimate controversy, but the outcome of that debate is not for the courts to determine. The Constitution provides no more than a framework. Challenges to the wisdom of a legislative measure within that framework should be addressed to Parliament. Our concern is solely with the issue of constitutionality. We conclude that it is within Parliament’s legislative jurisdiction to criminalize the possession of marihuana should it choose to do so. Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marihuana laws that it no longer considers to be good public policy.”
The Court did however then go on to note the following:
“21 The controversy over the criminalization of the use of marihuana has raged in Canada for at least 30 years. In 1972, the Commission of Inquiry into the Non-Medical Use of Drugs (the “Le Dain Commission”), in its preliminary report entitled Cannabis, recommended that the prohibition against its use be removed from the criminal law. In 1974, the federal government introduced Bill S-19, which would have removed penal sanctions for possession of marihuana for a first offence and substituted a monetary fine in its place. The Bill, however, died on the Order Paper. At the beginning of the 32nd Parliament in 1980, the Throne Speech proclaimed:
It is time . . . to move cannabis offences to the Food and Drugs Act and remove the possibility of imprisonment for simple possession.
(House of Commons Debates, vol. I, 1st Sess., 32nd Parl., April 14, 1980, at p. 5)
22 The trial judge in Caine estimated that over 600,000 Canadians now have criminal records for cannabis-related offences, and that widespread use despite the criminal prohibition encourages disrespect for the law. At the time of the hearing of the appeal in this Court, the government announced its intention of introducing a bill to eliminate the availability of imprisonment for simple possession. Bill C-38, as introduced, states that possession of amounts less than 15 grams of marihuana will render an individual “guilty of an offence punishable on summary conviction and liable to a fine” (s. 4(5.1)). Furthermore, the offence would be designated as a contravention, pursuant to the Contraventions Act, S.C. 1992, c. 47, with the effect that an individual convicted for such possession would not receive a criminal record.
23 These reports and legislative initiatives were directed to crafting what was thought to be the best legislative response to the marihuana controversy. Whether the Bill should proceed, and if so in what form, is a matter of legislative policy for Parliament to decide. The question before us is purely a 9
matter of law. Is the prohibition, including the availability of imprisonment for simple possession, beyond the powers of Parliament, either because it does not properly fall within Parliament’s legislative competence, or because the prohibition, and in particular the availability of imprisonment, violate the Charter ’s guarantees of rights and freedoms?”
With respect to the history of the addition of cannabis to the Opium and Drug Act in 1923 the Court noted the following:
“31 The NCA is structured as an omnibus measure covering all controlled drugs including heroin, crack cocaine and opium. The first such Act was passed by Parliament in 1908 in the form of An Act to prohibit the importation, manufacture and sale of Opium for other than medicinal purposes, S.C. 1908, c. 50, which aimed to control the use of narcotics for non-medicinal purposes. In 1911, this statute was replaced by The Opium and Drug Act, S.C. 1911, c. 17, which added prohibitions with regards to cocaine, morphine and eucaine. In 1923, Parliament enacted a consolidated Opium and Narcotic Drug Act, 1923, S.C. 1923, c. 22, which added cannabis to the list of prohibited drugs. There was no discussion or debate in the house as to why this drug was added. In 1932, a number of important amendments were made in the Act to amend The Opium and Narcotic Drug Act, 1929, S.C. 1932, c. 20, referring to both synthetic and natural drugs. By 1938, the Act prohibited over 15 scheduled drugs (S.C. 1938, c. 9) (see Senate Committee Report, vol. II, at pp. 256-58).
32 In 1954, the Opium and Narcotic Drug Act was amended, and the offence of possession was supplemented by a new offence: “possession . . . for the purpose of trafficking” (S.C. 1954, c. 38, s. 3). A reverse onus applied to this offence, meaning that those possessing large quantities of narcotics had to prove that they were not in possession for the purpose of trafficking (Senate Committee Report, vol. II, at p. 264). The Act contained much harsher penalties for trafficking than for possession, leading Braidwood J.A. to conclude that “Parliament’s primary purpose was to stamp out the drug traffic and punish the traffickers” (para. 81).
33 Less than a decade later, Parliament replaced the Opium and Narcotic Drug Act with the Narcotic Control Act, S.C. 1960-61, c. 35, which gave effect to Canada’s international commitments under the Single Convention on Narcotic Drugs, 1961, Can. T.S. 1964 No. 30. When debating the Bill, the Minister of National Health characterized marihuana as a gateway drug, stating that “[i]t . . . may well provide a stepping stone to addiction to heroin” (House of Commons Debates, vol. VI, 4th Sess., 24th Parl., June 7, 1961, at p. 5981). This strategy was to try to treat and cure the “evil” of marihuana by reducing the supply of drugs through stiff penalties, and reducing the demand for drugs by providing treatment for existing addicts.
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34 In 1997, the NCA and Parts III and IV of the Food and Drugs Act were repealed and replaced by the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA ”). The new Act was designed to discharge Canada’s more recent international obligations with regard to narcotics. It introduced a legislative framework for the import, export, distribution and use of substances scheduled under previous legislation (Senate Committee Report, vol. II, at p. 286). More than 150 substances now appear in the schedules to the CDSA .
Bearing in mind that the decisions related to events in the 90’s and culminated in 2003,and that we now have even more knowledge about Cannabis than we did then, nevertheless the findings of fact in the 3 cases , including Clay, were submitted as “legislative facts” by all parties and the court made the following findings with respect to “evidence of harm”:
“42 The appellants Malmo-Levine, Caine and Clay filed with the Court a Joint Statement of Legislative Facts in which they make the following limited admissions:
(i) Dependency
The appellants state that “[t]here appears to be little or no risk of physical addiction arising from cannabis use; however, a small percentage of users do seemingly develop problems with psychological dependence. . . . Psychological dependence is reportedly experienced by only 2% of all cannabis users”.
(ii) Driving, flying, or operating complex machinery
The appellants acknowledge that “[c]annabis may be contributing to accidents”. Note, as well, that the following is printed on the Harm Reduction Club’s Membership Card (run by Mr. Malmo-Levine): “I, [name], promise not to operate any heavy machinery while impaired on any marijuana”.
(iii) Damage to lungs
The appellants acknowledge that “Dr. Tashkin has recently demonstrated that chronic cannabis smoking will lead to chronic bronchial inflammation”.
(iv) Schizophrenia and psychosis
The appellants state that “[c]annabis has not been shown to cause psychoses or schizophrenia, although there is some question as to whether or not cannabis can modify the course of a pre-existing psychosis.”
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(v) Amotivational syndrome
The appellants state that “diminished motivation may be a symptom of chronic intoxication but one which dissipates upon cessation of use”.
(vi) Effect on fetus/newborns
The appellants state that “[w]hile some tests have shown some impairment of memory, verbal ability and verbal expression of ideas in school age children, the changes were measurably small. More importantly, however, these minimal testing differences have not been linked to poor school performance in later years.”
(vii) Reproductive system
The appellants state that “[t]here may . . . be a brief or acute decrease of sex hormone level in the brain, but this level soon returns to normal even without the complete cessation of cannabis smoking”.
43 There is no doubt that Canadian society has become much more skeptical about the alleged harm caused by the use of marihuana since the days when Emily Murphy, an Edmonton magistrate, warned that persons under the influence of marihuana “los[e] all sense of moral responsibility. . . . are immune to pain . . . becom[ing] raving maniacs . . . liable to kill . . . using the most savage methods of cruelty” (The Black Candle(1922), at pp. 332-33). However, to exonerate marihuana from such extreme forms of denunciation is not to say it is harmless.
2. The Le Dain Commission Report
44 The Le Dain Commission, established in 1969 and reporting in 1972, recommended decriminalization of marihuana but nevertheless identified various concerns regarding its use, including the following four identified by the majority of commissioners as the major areas of social concern (at p. 268):
1. “the effect of cannabis on adolescent maturation;”
2. “the implications of cannabis use for the safe operation of motor vehicles and other machinery;”
3. “the possibility that the long-term heavy use of cannabis will result in a significant amount of mental deterioration and disorder;” and
4. “the role played by cannabis in the development and spread of multi- drug use.”
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45 Research and further studies in the intervening 30 years have caused reconsideration of some of these findings.
3. The Trial Judge’s Findings in Caine
46 Howard Prov. Ct. J., in response to some of the more strident warnings of the harm allegedly caused by marihuana use, reviewed the extensive evidence before her court to put in perspective the potential harms associated with the use of marihuana, as presently understood, as follows (at para. 40):
1. the occasional to moderate use of marihuana by a healthy adult is not ordinarily harmful to health, even if used over a long period of time;
2. there is no conclusive evidence demonstrating any irreversible organic or mental damage to the user, except in relation to the lungs and then only to those of a chronic, heavy user such as a person who smokes at least 1 and probably 3-5 marihuana joints per day;
3. there is no evidence demonstrating irreversible, organic or mental damage from the use of marihuana by an ordinary healthy adult who uses occasionally or moderately;
4. marihuana use does cause alteration of mental function and as such should not be used in conjunction with driving, flying or operating complex machinery;
5. there is no evidence that marihuana use induces psychosis in ordinary healthy adults who use [marihuana] occasionally or moderately and, in relation to the heavy user, the evidence of marihuana psychosis appears to arise only in those having a predisposition towards such a mental illness;
6. marihuana is not addictive;
7. there is a concern over potential dependence in heavy users, but marihuana is not a highly reinforcing type of drug, like heroin or cocaine and consequently physical dependence is not a major problem; psychological dependence may be a problem for the chronic user;
8. there is no causal relationship between marihuana use and criminality;
9. there is no evidence that marihuana is a gateway drug and the vast majority of marihuana users do not go on to try hard drugs . . . .
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10. marihuana does not make people aggressive or violent, but on the contrary it tends to make them passive and quiet;
11. there have been no deaths from the use of marihuana;
12. there is no evidence of an amotivational syndrome, although chronic use of marihuana could decrease motivation, especially if such a user smokes so often as to be in a state of chronic intoxication;
13. assuming current rates of consumption remain stable, the health related costs of marihuana use are very, very small in comparison with those costs associated with tobacco and alcohol consumption.
47 Having concluded that the use of marihuana is not as harmful as is sometimes claimed, the trial judge went on to state in Caine that marihuana is not “a completely harmless drug for all individual users” (para. 42). She stated at paras. 121-22:
The evidence before me demonstrates that there is a reasonable basis for believing that the following health risks exist with [marihuana use].
There is a general risk of harm to the users of marihuana from the acute effects of the drug, but these adverse effects are rare and transient. Persons experiencing the acute effects of the drug will be less adept at driving, flying and other activities involving complex machinery. In this regard they represent a risk of harm to others in society. At current rates of use, accidents caused by users under the influence of marihuana cannot be said to be significant.
48 Key to Howard Prov. Ct. J.’s findings was the identification of perhaps 50,000 chronic users, who cannot be identified in advance, but who pose both a risk to themselves and a potential cost to society at paras. 123-26:
There is also a risk that any individual who chooses to become a casual user, may end up being a chronic user of marihuana, or a member of one of the vulnerable persons identified in the materials. It is not possible to identify these persons in advance.
As to the chronic users of marihuana, there are health risks for such persons. The health problems are serious ones but they arise primarily from the act of smoking rather than from the active ingredients in marihuana. Approximately 5% of all marihuana users are chronic users. At current rates of use, this comes to approximately 50,000 persons. There is a risk that, upon legalization, rates of use will increase, and with that the absolute number of chronic users will increase.
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In addition, there are health risks for those vulnerable persons identified in the materials. There is no information before me to suggest how many people might fall into this group. Given that it includes young adolescents who may be more prone to becoming chronic users, I would not estimate this group to be min[u]scule.
All of the risks noted above carry with them a cost to society, both to the health care and welfare systems. At current rates of use, these costs are negligible compared to the costs associated with alcohol and drugs [sic]. There is a risk that, with legalization, user rates will increase and so will these costs. [Emphasis added.]
49 Over 20 years after the Le Dain Commission’s Report, the Hall Report was released in Australia. The trial judge noted in Caine that “[t]here was general agreement among the witnesses who appeared before me (save perhaps for Dr. Morgan) that the conclusions contained in the Hall Report were sound . . . based on the scientific information available at this time” (par. 48). The 1994 Hall Report found the following to be “chronic effects”:
[T]he major probable adverse effects [from chronic use] appear to be:
– respiratory diseases associated with smoking as the method of administration, such as chronic bronchitis, and the occurrence of histopathological changes that may be precursors to the development of malignancy;
– development of a cannabis dependence syndrome, characterized by an inability to abstain from or to control cannabis use;
– subtle forms of cognitive impairment, most particularly of attention and memory, which persist while the user remains chronically intoxicated, and may or may not be reversible after prolonged abstinence from cannabis.
[T]he major possible adverse effects [from chronic use that is, effects] which remain to be confirmed by further research [are]:
– an increased risk of developing cancers of the aerodigestive tract, i.e. oral cavity, pharynx, and oesophagus;
– an increased risk of leukemia among offspring exposed while in utero;
– a decline in occupational performance marked by underachievement in adults in occupations requiring high level cognitive skills, and impaired educational attainment in adolescents;
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– birth defects occurring among children of women who used cannabis during their pregnancies.
(W. Hall, N. Solowij and J. Lemon, National Drug Strategy: The health and psychological consequences of cannabis use (1994) (the “Hall Report”), at p. ix (emphasis in original))
50 In 2001, a revised version of the Hall Report was released. Its conclusions are similar to the 1994 Report except that the cognitive impairment probability was demoted to a possibility, the cancer risk (from smoking marihuana) was promoted from a possibility to a probability and the risks of leukemia and birth defects were no longer listed.
51 The trial judge noted that the 1994 Hall Report identified three traditional “high risk groups” (at para. 46):
(1) Adolescents with a history of poor school performance . . .
(2) Women of childbearing age . . .; and
(3) Persons with pre-existing diseases such as cardiovascular diseases, respiratory diseases, schizophrenia or other drug dependencies . . . .
The inclusion of “women of childbearing age” may have to be reconsidered in light of more recent studies casting doubt on marihuana as a potential source of birth defects. However, given the immense importance of potential birth defects for all concerned, and the widely recognized need for further research, we have to accept that on this point as on many others “the jury is still out”.
52 The trial judge noted, at para. 46, that the findings of the 1994 Hall Report were similar (except for the leukemia and birth defects concerns) to a report entitled Cannabis: a health perspective and research agenda (1997), published a few years later by the World Health Organization, Division of Mental Health and Prevention of Substance Abuse, which contained the following statement about the “acute health effects”, i.e., the effects experienced by users during and for a period following the use of marihuana (at p. 30):
Acute health effects of cannabis use The acute effects of cannabis use have been recognized for many years, and recent studies have confirmed and extended earlier findings. These may be summarized as follows:
– cannabis impairs cognitive development (capabilities of learning), including associative processes; free recall of previously learned items is often impaired when cannabis is used both during learning and recall periods; 16
– cannabis impairs psychomotor performance in a wide variety of tasks, such as motor coordination, divided attention, and operative tasks of many types; human performance on complex machinery can be impaired for as long as 24 hours after smoking as little as 20mg of THC in cannabis; there is an increased risk of motor vehicle accidents among persons who drive when intoxicated by cannabis.
53 The chronic and therapeutic effects of marihuana use were also listed by the World Health Organization and are set out in the Appendix.
4. Parliamentary Reports
54 Our attention was drawn by the parties to a number of parliamentary reports issued since the decision of the courts below, of which we may and do take judicial notice.
55 In September 2002, the Senate Special Committee on Illegal Drugs concluded that “the state of knowledge supports the belief that, for the vast majority of recreational users, cannabis use presents no harmful consequences for physical, psychological or social well-being in either the short or the long term” (vol. I, at p. 165).
56 At the same time, the Senate Committee acknowledged potential harm to a minority of users, including the vulnerable groups identified by the Hall Report and reported by the trial judge (vol. I, at pp. 166-67):
The Committee feels that, because of its potential effects on the endogenous cannabinoid system and cognitive and psychosocial functions, any use in those under age 16 is at-risk use;
Our estimation would suggest that approximately 50,000 youths fall in this category. . . . Heavy use of smoked cannabis can have certain negative consequences for physical health, in particular for the respiratory system (chronic bronchitis, cancer of the upper respiratory tract).
Heavy use of cannabis can result in negative psychological consequences for users, in particular impaired concentration and learning and, in rare cases and with people already predisposed, psychotic and schizophrenic episodes.
Heavy use of cannabis can result in consequences for a user’s social well-being, in particular their occupational and social situation and their ability to perform tasks.
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Heavy use of cannabis can result in dependence requiring treatment; however, dependence caused by cannabis is less severe and less frequent tha[n] dependence on other psychotropic substances, including alcohol and tobacco.
57 Echoing many other studies and reports, the Senate Committee underlined the need for further research, e.g., with respect to the potential impact of marihuana use on some psychiatric disorders (vol. I, at p. 151):
As it is, most scientific reports come to the same conclusion: more research is needed, with more rigorous protocols, allowing in particular for comparison with other populations and other substances.
58 In December 2002, the House of Commons Special Committee on Non- Medical Use of Drugs reported on the therapeutic benefits and potential adverse effects to some users of marihuana, and recommended that possession of marihuana be dealt with by a scheme of “ticketing, except where the offence is committed in the presence of specified aggravating circumstances”, such as impaired driving (Policy for the New Millennium: Working Together to Redefine Canada’s Drug Strategy (2002), at p. 130).
59 On May 27, 2003, the Minister of Justice introduced Bill C-38 which would eliminate the potential of imprisonment following a conviction for possession of no more than 15 grams of marihuana.
60 The Senate and House of Commons Committee Reports are consistent with the conclusions reached by the courts in British Columbia that, while marihuana is not a “harmless” drug, nevertheless the degree and extent of harm associated with its use is subject to continuing controversy, as is the wisdom of the present legislative scheme.
61 We have been shown no reason to interfere with these findings of fact. It seems clear that the use of marihuana has less serious and permanent effects than was once claimed, but its psychoactive and health effects can be harmful, and in the case of members of vulnerable groups the harm may be serious and substantial.
APPENDIX
Extracts from a document entitled Cannabis: a health perspective and research agenda, Division of Mental Health and Prevention of Substance Abuse, World Health Organization (1997), at pp. 30-31:
Chronic health effects of cannabis use
The chronic use of cannabis produces additional health hazards including:
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– selective impairments of cognitive functioning which include the organization and integration of complex information involving various mechanisms of attention and memory processes;
– prolonged use may lead to greater impairment, which may not recover with cessation of use, and which could affect daily life functions;
– development of a cannabis dependence syndrome characterized by a loss of control over cannabis use is likely in chronic users;
– cannabis use can exacerbate schizophrenia in affected individuals;
– epithelial injury of the trachea and major bronchi is caused by long- term cannabis smoking;
– airway injury, lung inflammation, and impaired pulmonary defence against infection from persistent cannabis consumption over prolonged periods;
– heavy cannabis consumption is associated with a higher prevalence of symptoms of chronic bronchitis and a higher incidence of acute bronchitis than in the non-smoking cohort;
– cannabis use during pregnancy is associated with impairment in fetal development leading to a reduction in birth weight;
– cannabis use during pregnancy may lead to postnatal risk of rare forms of cancer although more research is needed in this area.
The health consequences of cannabis use in developing countries are largely unknown because of limited and non-systematic research, but there is no reason a priori to expect that biological effects on individuals in these populations would be substantially different to what has been observed in developed countries. However, other consequences might be different given the cultural and social differences between countries.
Therapeutic uses of cannabinoids
Several studies have demonstrated the therapeutic effects of cannabinoids for nausea and vomiting in the advanced stages of illnesses such as cancer and AIDS. Dronabinol (tetrahydrocannabinol) has been available by prescription for more than a decade in the USA. Other therapeutic uses of cannabinoids are being demonstrated by controlled studies, including treatment of asthma and glaucoma, as an antidepressant, appetite stimulant, anticonvulsant and anti- spasmodic, research in this area should continue. For example, more basic research on the central and peripheral mechanisms of the effects of 19
cannabinoids on gastrointestinal function may improve the ability to alleviate nausea and emesis. More research is needed on the basic neuropharmacology of THC and other cannabinoids so that better therapeutic agents can be found.”
For a detailed update of the most current evidence, the reader is invited to go to the details of the proceedings in Allard v. Canada, 2016 FC237 and review the list of all witnesses at Schedule A called by both Plaintiffs and the Defendant. The affidavits and cross examinations and all materials can be referenced at www.johnconroy.com by clicking on the “MMAR constitutional challenge” link on the left that takes you to a page containing all of the pleadings and proceedings in that case heard in 2014. Of particular interest might be the evidence of Dr. Yehuda Baruch the expert on Cannabis use in Israel, including his cross-examination which she agreed with and adopted the video about cannabis in Israel entitled “Prescribed Grass” which is available on YouTube.
C. Medical Regulations in Canada
With respect to medical use, for many years under the Narcotic Control Act regulation (s.53), "practitioners" defined to include a doctor, dentist or veterinarian licensed to practice in the province, were entitled to ‘prescribe, give, sell or furnish’ any narcotic to a person or animal if the person or animal is a patient under his or her professional treatment and the narcotic is required for the condition for which the person or animal is receiving treatment. This broad provision applied to all controlled drugs except ‘methadone’ which required a special additional permit and ‘heroin’ which required the patient to be an inpatient or outpatient of a hospital.
This section was amended by the current regulations under the CDSA entitled the MMPR (the Marijuana for Medical Purposes Regulations) that in turn were held to be unconstitutional recently in Allard v. Canada (see below) due to their elimination of personal or designated grower production by medically approved patients as permitted under the former MMAR (Medical Marijuana Access Regulations) that the MMPR repealed.
S.53 currently provides as follows:
53 (1) No practitioner shall administer a narcotic to a person or animal, or prescribe, sell or provide a narcotic for a person or animal, except as authorized under this section or the Marihuana for Medical Purposes Regulations.(emphasis added) (2) Subject to subsections (3) and (4), a practitioner may administer a narcotic other than dried marihuana to a person or animal, or prescribe, sell or provide it for a person or animal, if (a) the person or animal is a patient under their professional treatment; and
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(b) the narcotic is required for the condition for which the person or animal is receiving treatment. (3) No practitioner shall administer methadone to a person or animal, or prescribe, sell or provide methadone for a person or animal, unless the practitioner is exempted under section 56 of the Act with respect to methadone. (4) [Repealed, SOR/2013-172, s. 7]
(5) A health care practitioner may administer dried marihuana to a person or prescribe or transfer it for a person if (a) the person is a patient under their professional treatment; and (b) the dried marihuana is required for the condition for which the person is receiving treatment.
Access
The problem in the past was how to obtain a legal source of supply. While heroin was originally manufactured by the Bayer Corporation its use appears to have fallen off due to the availability of other equally or more powerful drugs such as OxyContin. Until 2001 there was no legal supply of cannabis and the current sources of supply are through the federally licensed commercial producers (LP’s) under the Marihuana for Medical Purposes Regulations (MMPR) and those patients still allowed to produce for themselves or for another as a caregiver under the Marihuana Medical Access regulations (MMAR) due to the ongoing Allard injunction (see below).
The Market
In the 90’s (and now more recently) a number of non-profit Compassion Clubs/dispensaries sprung up where members, with the support of their doctors for their medical condition verified in writing(under section 53 of the Narcotic Control regulations), could attend at the club and purchase a variety of different strains of cannabis according to a menu. The strains were grown by the clubs illicit growers who would grow the strains demanded by medical patients as opposed to the recreational market. Menu
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The BC Compassion Club Society has existed since the mid-90s and has over 10,000 members in the city of Vancouver, B.C. While a number of the clubs and growers and patients were charged with cultivation or distribution over the years, it soon became apparent that the courts are prepared to take an entirely different approach to medical marijuana growers, dealers and users, compared to the recreational market.
British Columbia
Recent developments in Vancouver and Victoria have indicated that there are now in excess of 150 aspiring dispensaries in Vancouver alone and 18 or so in Victoria and as a result of this recent expansion both have taken steps to regulate them from a zoning and licensing perspective. These developments led to strong words from the previous Federal government calling for enforcement as these clubs dispensaries arguably remain unlawful under the CDSA but as we will be seeing later they also, arguably, form part of “reasonable access” as mandated by Parker and commented upon recently by Mr. Justice Phelan in Allard.
Case Law on Medical use and access in Canada
On July 31, 2000, the Ontario Court of Appeal, in a case involving Terry Parker [2000] O.J. No. 2787 on appeal from the decision of Sheppard J.(1997), 48 C.R.R. th (2d) 352, 12 C.R. (5 ) 251 (Ont. Gen. Div.) http://www.drugpolicy.org/docUploads/Reginav_Parker.pdf ruled that our laws prohibiting the possession of Cannabis (marijuana) were unconstitutional to the extent that they did not provide for access by medical patients requiring cannabis for their health or at least if their health was threatened in a serious way.
The court gave the government until July 31, 2001 to remedy the situation. Parker suffered from a severe form of epilepsy. Conventional medicine had only been moderately successful in controlling his seizures, and he turned to growing and using marihuana to treat his symptoms with the knowledge and support of his doctor.
Upon being charged with cultivation of marihuana under the now defunct Narcotic Control Act, and possession of marihuana under its replacement, the CDSA, Parker resisted the charges by challenging the constitutionality of the offences. He argued that 22 he needed to grow and use marihuana as medicine to control his epilepsy, and the statutory prohibitions against doing so forced him to choose between his health and his liberty, thus violating his rights under s. 7 of the Charter.
In its analysis of the principles of fundamental justice, the Court acknowledged that the State had an interest in protecting people against the harmful effects of marihuana and satisfying Canadian international treaty obligations by controlling the domestic and international trade in illicit drugs.
In spite of these valid objectives, the Court held that the blanket prohibition on possession and cultivation, without an exception for medical use, did little or nothing to enhance the state interests. In arriving at its conclusion, the Court, in 2001, made the following important findings:
“Consumption of marihuana is relatively harmless compared to the so-called hard drugs and including tobacco and alcohol and there is no “hard evidence” that even long-term use of marihuana can lead to irreversible physical or psychological damage.”
“Marihuana use is not criminogenic (i.e. there is no causal relationship between marihuana use and criminality) and it does not make people more aggressive or violent. There have been no recorded deaths from consumption of marihuana.”
“Marihuana does have an intoxicating effect and it would not be prudent to drive while intoxicated. As with tobacco smoking, marihuana smoking can cause bronchial pulmonary damage, especially in heavy users. There may be other side effects from the use of marihuana and its effects are probably not as benign as was thought some years ago. However, these other effects are not acute except in very narrow circumstances, for example, people with schizophrenia (at para. 39). ”
“On the other hand, marihuana, although it has a variety of effects in humans, has no overdose liability. There has never been a proven overdose death caused by marihuana in humans. Unlike the conventional medications, marihuana has an extremely wide 23 safety margin. There is no reliable evidence that even chronic use of marihuana has an adverse impact on cognition or memory. Marihuana is not known to harm the foetus. “
“Since marihuana and tobacco smoke are similar in character, it can harm the lungs. However, a regular marihuana smoker, even a therapeutic marihuana smoker, smokes much less than a tobacco smoker (three to five marihuana cigarettes a day compared to 30 to 50 tobacco cigarettes) and therefore inhales much less smoke. There is, therefore, reason to believe that the marihuana user will not suffer as much pulmonary harm as tobacco smokers. There are no reports of marihuana-only smokers developing emphysema or lung cancer (at para. 48).”
“Using a criminal prohibition to bar access to a drug for a person, such as Parker, who requires it to treat a condition that threatens his life and health, is antithetical to our notions of justice. It is inconsistent with the principle of sanctity of life which, according to Sopinka J. in Rodriguez at p. 605, as a general principle “is subject to limited and narrow exceptions in situations in which notions of personal autonomy and dignity must prevail”. (Para. 137)”
“The blanket prohibition on possession and cultivation, without an exception for medical use, does little or nothing to enhance the state interest. To the extent that the state’s interest in prohibiting marihuana is to prevent the harms associated with marihuana use including protecting the health of users, it is irrational to deprive a person of the drug when he or she requires it to maintain their health (at para. 144).”
“…the danger from the use of the drug by a person such as Parker for medical purposes is minimal compared to the benefit to Parker and the danger to Parker’s life and health without it (at para. 161).”
“…one of the purposes of the law is to prevent harm to the health of Canadians and the resulting costs to society. However, the broad nature of the marihuana prohibition has the effect of impairing the health of Parker and others who require it for medical purposes. In this sense, the legislation works in opposition to one of the primary objectives and thus could be described as “arbitrary” or “unfair” (at para. 192).” “There have been no recorded deaths from consumption of marihuana (at para. 39).”
MMAR
As a result of Parker, that the government did not appeal, the Canadian federal government was required by the courts to provide “medically approved patients” with a “viable constitutional exemption” to the CDSA in order to ensure reasonable access thereto for medical purposes. While such access was initially granted on a case-by-case basis by the Minister of Health pursuant to s. 56 of the CDSA that granted broad discretion to exempt persons or drugs from the Act, in 2001, the government enacted the Marihuana Medical Access Regulations (MMAR) providing an exemption process and those regulations continued until March 31, 2014, when they were repealed and replaced by the Marihuana for Medical Purposes Regulations (MMPR). 24
MMAR to MMPR
The enactment of the MMPR on March 31st, 2014 was preceded by transitional provisions commencing in June 2013 setting September 30th, 2013 as the principal transition date between the two sets of Regulations. The basic effect of the Regulations was to take away the ability of medically approved patients to personally produce for themselves or have a designated grower do so for them. The complete repeal was scheduled for March 31st, 2014. Apparently there were approximately 38,000 medically approved patients under the MMAR at that time.
Allard v. Canada
However, in December 2013 a constitutional challenge was brought with respect to aspects and omissions in the MMPR in the Federal Court Trial Division in Vancouver, BC, by some “medically approved patients” entitled Allard et al. v. Canada, 2014 FC 280. http://www.canlii.org/en/ca/fct/doc/2014/2014fc280/2014fc280.html?resultIndex=1 On March 21, 2014 Manson J. of that court granted an interlocutory injunction in favor of the Plaintiffs, pending further order of the court.
The ambit of the Injunction
Essentially those holding in Authorization to Possess (ATP) under the MMAR on the date of the order, namely March 21, 2014 continue to be able to lawfully possess cannabis as medicine, notwithstanding the expiry date on their permit and those who had valid personal production or designated grower licenses (PPL or DGL) on September 30, 2013, the legislative transition date from the MMAR to be MMPR, with similarly continue to be valid notwithstanding the expiry dates on the permits, pending further order of the court.
The cracks in its ambit
Unfortunately 2 of the Plaintiffs were in a situation where the patient’s ATP had expired before March 21, 2014 and due to their economic circumstances (her husband being her DG and the other plaintiff) had to move their site, but were unable to do so before the deadline and obtain Health Canada approval. Many others similarly situated, patients also fell through the cracks of the injunction terms because they stopped thinking the program was ending, because they needed to move due to a variety of reasons such as divorce ,or getting married or because the landlord gave them notice to vacate.
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Injunction Appeal
The Defendant Government of Canada, appealed the Manson J. Order of March 21, 2014 and the Plaintiffs cross appealed with respect to those plaintiffs that were not covered. The Federal Court of Appeal dismissed the Defendants appeal and allowed the Plaintiffs cross-appeal, but only to the extent of sending it back to Manson J. to clarify what he intended to do, given that he found the criteria for injunctive relief to apply to all but did not grant such relief to all. Manson J. clarified that that was his intention so as to minimally intrude into the legislative scheme, but the Court of Appeal then declined to rule further, taking the position that the matter was “res Judicata” compelling the Plaintiffs to file a further new appeal. http://www.johnconroy.com/pdf/A-174-14-20141215-Judgment.pdf http://www.johnconroy.com/pdf/Order-Amended-Order-and-Reasons-Manson-J-December-30-2014.pdf
However, that new appeal was abandoned when the trial concluded as similar remedies were being sought from the trial judge who had all of the evidence before him, that the Court of Appeal did not and so a motion to vary the Manson J. injunction was also brought and it was hoped the issue would be heard and disposed of in June, 2015 so that patients could change their production sites and Health Canada would be required to record those changes, among other things, pending final decision in the case. Unfortunately the court declined to make any such Orders on an interim basis and refused to vary the injunction ambit pending final decision. Allard v. Her Majesty the Queen, 2015 FC 866 http://www.canlii.org/en/ca/fct/doc/2015/2015fc866/2015fc866.html?resultIndex=1
The Trial, which proceeded as a “simplified action” in the Federal Court trial division concluded on March 13, 2015,after the exchange of written Memorandum of Argument and Reply, setting out both the Plaintiffs and Defendants positions and arguments, including the history of the litigation under the MMAR and developments to date. Oral arguments were made on April 30 and May 1, 2015 and judgment was reserved. However further submissions were then made after the SCC decision in R. v. Smith [2015] 2 SCR 602(see below) and submissions concluded towards the end of June, 2015.
A “simplified action” consists of the Plaintiffs filing affidavits with respect to facts and expertise followed by the Defendants doing the same and with provision for rebuttal experts’ affidavits and then the trial proceeds with brief introductions followed by cross examination of selected witnesses. Those wishing to access the detail of the specific pleadings and proceedings and the specific fact and expert witnesses’ affidavits and the transcripts of cross examination must go to www.johnconroy.com and click on the “MMAR Constitutional Challenge” link that will take you to a page containing all of the detailed information.
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R. v. Smith [2015] 2 SCR 602 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15403/index.do
Further, because of a dissent in the BC Court of Appeal in the case of R. v Smith, a criminal case involving charges under the CDSA arising out of the making of edibles by baker Owen Smith for the Cannabis Buyer Club members in Victoria BC, the Supreme Court of Canada heard, for the first time, a medical marihuana case on March 20, 2015, and judgment was reserved. Kirk Tousaw was lead counsel in that case throughout.
On June 11, 2015 a unanimous Supreme Court (2015 SCC 34) upheld the Trial judge and the B.C. Court of Appeal finding that the prohibition on non-dried forms of medical marihuana unjustifiably infringed s. 7 of the Charter, dismissed the Crown appeal, deleted the suspension of the declaration of unconstitutionality so their decision took immediate effect and affirmed the acquittal of Mr. Smith of all charges.
The Court held that the prohibition on possession of non-dried forms of medical marihuana limited the s. 7 Charter right to "liberty of the person" in two ways. Firstly, it deprives someone like Mr. Smith, as well as medical marihuana users of their "liberty" by imposing a threat of criminal sanctions if they produce or possess cannabis products other than dried marihuana under the CDSA and secondly, it limits the "liberty" of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution. Also, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law infringed "security of the person".
The Court found that these limits were contrary to "the Principles of Fundamental Justice”, because they are "arbitrary” in that the effects of the prohibition contradict the objective of protecting health and safety. The evidence amply supported the conclusion that inhaling marihuana can present health risks and that it is less effective for some conditions than administration of cannabis derivatives. Consequently, there was no connection between the prohibition and the health and safety of patients who qualify for legal access.
The Court also found that the objective of the prohibition was the same under s. 7 and s. 1 of the Charter. Consequently, the same disconnect under s. 7 frustrated the requirements under s. 1 that the limit on the right be rationally connected to a pressing objective. Therefore, the infringement of s. 7 was not justified under s. 1. S. 4 (possession) and s. 5 (trafficking and possession for the purposes) of the CDSA were declared to be of no force and effect, but only to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes. Otherwise, they remain in full force and effect
Importantly, the Court ruled that the ‘declaration of unconstitutionality’ should not be suspended to give the government an opportunity to try and rectify the situation 27 because to do so would leave patients without lawful medical treatment and the law and law enforcement in limbo.
Allard v. Canada – Final Trial Decision – February 24 2016
Allard v. Her Majesty the Queen, 2016 FC 236 http://www.canlii.org/en/ca/fct/doc/2016/2016fc236/2016fc236.html?resultIndex=1
On February 24th,2016 Mr. Justice Phelan of the Federal Court Trial Division, rendered his decision in Allard v Canada, that raised the issues of whether or not the MMPR regulations are unconstitutional to the extent that they (1) do not allow a medically approved patient to produce for him or herself or to have a caregiver do so for them (2) whether the limitation to "dried marihuana" in the MMPR and NCR are unconstitutional as found to be under the MMAR in Smith (supra) and (3) whether the 150 g limitation to patient possession when out and about under the MMPR should be deleted given the various practical problems it presents for patients working away from their storage site and travelling, etc.
The Court accepted the Plaintiff’s position on points (1) and (2), but not on (3). Consequently, it went on to Order that the MMPR are declared of no force and effect and then suspended that declaration for 6 months, namely until August 25, 2016. The Court further ordered that the Order of Justice Manson dated March 21, 2014 remain in effect until the Court orders otherwise. In other words, the injunction grandfathering those who had personal production or designated grower licenses on September 30, 2013 and authorization’s to possess on March 21, 2014 can continue to operate in accordance with their permits at their specified locations, subject to the 150 g limit, but based on Smith (supra), they can now produce and possess cannabis in any of its forms, because the limitation to “dried marihuana” in both the MMAR and MMPR has been stricken (see RFJ paragraph [11]). The Court did not expressly address the remedy sought in that regard with respect to that limitation in s.53 of the Narcotic Control Regulations, though it follows that it too is unconstitutional.
Canada has until March 25, 2016 to decide whether to appeal and if they do they will likely seek a stay of the 6 month period.
The Court concluded that the plaintiff’s liberty and security interests were engaged by the access restrictions imposed by the MMPR and those restrictions had not been proven to be in accordance with the principles of fundamental justice and consequently this attempt at restricting access “founders on the shoals of the Canadian Charter of Rights and Freedoms… particularly section 7 and was not saved by section 1 (see RFJ paragraph [4] – [5]. The court found that the Plaintiffs' lives as medically approved patients had been adversely impacted by the imposition of the new regime to control the use of marihuana for medical purposes [6].
The Court found that the evidence established that a single source system of a licensed producer [LP] under the MMPR there was no guarantee that the necessary quality, 28 strain and quantity would be available when needed at some acceptable level of pricing such as flexible pricing or discount pricing, due to the structure of the regulations and the characteristics of the market [15].
On the question of affordability the Court held that it was not necessary to make a finding that it was a ground for a section 7 violation and that while it could be a barrier to access in certain circumstances, it had not been made out but noted that the Plaintiffs did not seek to establish a positive right from the government to “grow one’s own” or to “cheap drugs” [14]. The Court found that the MMPR dispossessed licensees of the ability to control the medical marihuana they consumed [38].
Considering the liberty and security interests engaged the Court found that the evidence of each of the Plaintiffs individual circumstances was sufficient to demonstrate that the regulatory restrictions in the MMPR on these individuals, including but not limited to the prohibition against certain methods of consumption and plant growth, did not bear a rational connection to the objective of the legislation and was therefore “arbitrary”. The restrictions did not prove to reduce risk to health and safety or to improve access to marihuana – the purported objective of the regulations. The Court found, in the alternative, that even if some connection is found the restriction was still “overbroad” and did not minimally impair section 7 rights [16].
Significantly the Court found that while there were concerns with respect to the independence of experts on both sides, the evidence from Cpl. Holmquist of the RCMP was a particularly egregious example and found him to be unreliable and biased as was the evidence of Surrey Fire Chief Len Garis. The lack of credibility of this evidence with respect to fire, mold and public safety and the complete lack of any statistical evidence or even anecdotal evidence from Health Canada with respect to these types of problems in medical production sites undermined the basis for the government’s position. Hopefully, this hyperbole will be acknowledged by those considering amendments to the Regulations as well as those considering future legalization. That evidence constituted another example of hyperbolic biased claims that feed the public’s fears, creating false alleged harms.
The Court reviewed the specific evidence of the individual medically approved patients and accepted their evidence as true. The court concluded:
“[146] The Court accepts each of the Plaintiffs’ evidence as true. They established their need for medical marihuana and the benefits from its use in different forms of consumption. They confirm, if only anecdotally, the benefits of different strains. They also establish the importance of easy access to their own medical marihuana, assurance of its supply, control over their health care and therapeutic benefit from cultivation.
[147] They also establish that many of these benefits under the MMAR are lost to them under the MMPR, and the adverse effects they feel from the MMPR. 29
These adverse effects such as access, include as well matters of affordability and availability.”
On the question of “affordability” the Court referred to the Plaintiff’s evidence from expert Dr. Zachary Walsh, Phd R. Psych, an assistant professor of the Department of Psychology at the University of British Columbia, Okanagan Campus and his reference to a study entitled “Cannabis Access for Medical Purposes: Patient Characteristics, Patterns of Use and Barriers to Access [CAMPS Survey] and noted the following conclusions in the CAMPS Survey in particular as follows:
“[152] Amongst other conclusions, the CAMPS survey indicated that the lowest income groups have the most difficulty affording medicine. A large number of those people choose between obtaining their medicine and other necessities. The people with the poorest health have the greatest difficulty affording their medicine and are the most likely to choose between their medicine and other necessities.
[153] This would make those with the poorest health the most vulnerable to the unregulated pricing regime under the MMPR.
[154] With regards to access and the source of cannabis, almost 1/3 of the respondents in the CAMPS survey reported to be self-producing, of whom 50% were licensed to produce for personal use. Among self-producers, the most important reason for self-producing was quality (39%), followed by price (36%), avoiding the black market (29%), selection of specific strain of cannabis (24%) and safety (12%). It was noted that most medical cannabis users continue to obtain their cannabis from an illicit source.”
Perhaps significantly in terms of the MMPR model and for the drafters of the new Regulations the Court noted at paragraph 157 that:
“Absent some form of price controls, the limited number of licensed suppliers can set the price of medical marihuana with few competitive restraints – an aspect of access.”
The Court also heard evidence with respect to the dispensary issue and again for the benefit of those contemplating new regulations in the context of reasonable medical access and perhaps legalization the Court noted the following:
“[162] Although dispensaries were not a focus of the parties’ submissions, I find Ms. Shaw’s evidence to be extremely important as dispensaries are at the heart of cannabis access. Particularly, she states that with the pronouncement of the proposed regulation, consultation was denied and a number of dispensaries closed in 2012 and 2013 due to the potential that the new system would not serve their membership. However, in March 2014, the number of dispensaries 30
was estimated at 36. Over the last year, this number has increased exponentially and is now estimated at around 103 across Canada.
[163] Although not legal under any past or previous medical marihuana regulations, current trends in dispensary growth suggest a connection between the restrictions to access under the MMPR and the need for patients to obtain their medical marihuana from illicit sources.”
Overall on the question of “affordability” and “access” the Court concluded as follows:
“[171] Overall, with respect to affordability, I find that it is a barrier to access. The scope of this barrier is not easily qualified as the definition of affordability reflects the individualized nature of such determination. On access, the evidence adduced was similar to affordability, where a detailed factual finding cannot be made. It can be concluded, however, that there is no guarantee that quality and strain availability at price flexibility (discount pricing) will be accessible when needed.”
With respect to “economic interest” the Court noted the following:
[205] This is not a case about economic interests. Specifically, the Plaintiffs are not requesting to place a positive obligation on the government to subsidize the cost of accessing cannabis for medical purposes. As stated earlier, this is not a case about the entitlement to inexpensive medication.
[206] However, the interests have an economic dimension due to restriction of access caused by affordability. Although affordability (as defined by both Dr. Walsh and Dr. Grootendorst) encompasses a choice, this choice is only necessary due to state action, which must be Charter compliant. It is not a lifestyle choice or a preference choice as argued by the Defendant.”
Again on the current situation and the supply and strain issue, the Court concluded as follows:
“[211] It is unnecessary to debate whether the Plaintiffs’ preference of one strain versus another is medically established. There is enough anecdotal evidence that the type of strain affects the patients’ choice in treating their illnesses. Additionally, there is enough evidence that currently, the LP regime may not have an adequate supply of a patient’s dose amount in their preference of strain.
[212] The Plaintiffs have established that the MMPR has undermined the health and safety of medical marihuana users by diminishing the quality of their health care through severe restrictions on access to medical marihuana. It is the restriction that engages s 7 interests.”
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The Court found that the restrictions in the MMPR bore no connection to the objective of the law (paragraph [233]) and the impacts on the Plaintiffs and the effects of the restrictions were contrary to the objective of improving access (234). The Court also found that there was no real connection between restricting access to cannabis for medical purposes to purchasing from LPs and the objectives of reducing risks to health and safety and improving access. The evidence established that access was further restricted and not enhanced (235).
Again for the possible assistance of those determining the shape of new regulations, it might be helpful to note the Court’s comments as follows:
“[250] I do not find the treatment of cannabis consistent with other plant-based medicines. Although the Natural Health Products Regulations, SOR/2003- 196 [NHPR], state that natural health products cannot contain a controlled substance, it is beneficial to recognize that the NHPR regulate the sale of these products to the public, not the personal cultivation and subsequent consumption of them.
[251] Additionally, despite the stated objective of treating medical marihuana as a medicine, the MMPR does not treat marihuana for medical purposes in the same way as other psychoactive drugs. It is not regulated through the FDA drug approval process and is not subject to the controls on safety and efficacy. The Defendant conceded that there are no “lethal doses” associated with the drug unlike other drugs.”
Finally in conclusion the Court made the following findings which again may be helpful not only to those crafting new Regulations for medical production by medically approved patients, but to enable them to recognize the lack of significant problems or how they can be ameliorated in a legal market:
“[282] I agree that the Plaintiffs have, on a balance of probabilities, demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with the promotion of public health. I again emphasize that the object of the restriction is not to eliminate the risk to health and safety but to reduce it, and on that conception, there are very simple measures that can be taken to minimally impact the section 7 interests.
[283] Accepting that fire, mould, diversion, theft and violence are risks that inherently exist to a certain degree - although I note that these risks were not detailed - this significant restriction punishes those who are able to safely produce by abiding with local laws and taking simple precautions to reduce such risk. A complete restriction is not minimal impairment. As mentioned above, the mould and fire risks are addressed by complying with the Safety Standards Act and installing proper ventilation systems. Further, as demonstrated by the Plaintiffs, a security system reduces risk of theft and violence. Finally, risk of 32
diversion is also present in the LP regime; thus, it is not demonstrated how this restriction has the effect of reducing this risk.”
It is therefore submitted that there is much in this judgment to not only enable the Government to re-establish the personal production aspect as well as production by a true caregiver for medical patients, as well as evidence supporting the need to bring dispensaries into the equation and expand the number of licensed producers removing many unnecessary restrictions, particularly in light of the direction towards legalization. Furthermore there is much in the reasons for judgment to assist the legislative draftsman on the legalization issue and importantly to recognize that most of the fears and concerns raised are unfounded emotional and uniformed reactions or deliberate hyperbole.
D. Legalization
To achieve "legalization" or even the lesser "decriminalization" necessarily involves the federal government "vacating the field" as we say in constitutional law jargon so that it is no longer exercising its "criminal law" power under the Constitution.
This does not mean that the federal government does not continue to have some jurisdiction in the matter under its residuary power (peace, order and good government) or other specific heads of power, such as "health" and or “international and interprovincial trade”. That government will clearly still have a role in relation to “banking” and taxation”.
However, it also likely means that the provinces have some jurisdiction under their "health" powers or "matters of a local and private nature in the province" or "property and civil rights." It is likely that there will be a divided field between the federal and provincial governments and local governments will have a role to play within their jurisdiction under provincial, local government’s legislation. Somewhat analogous examples of such divided fields commonly referred to are jurisdiction over alcohol, tobacco and prescribed drugs.
While these analogies may be appropriate to a certain extent it is submitted that "doing it right" means avoiding the pitfalls and mistakes in our approach to alcohol in particular.
There is a tendency to think that Cannabis has always been illegal and for some to fear what might happen if it suddenly becomes legal and is available on a widespread basis. These fears arise, in particular, in relation to young people or youths or children. In this regard, it should be remembered that Cannabis was legal and readily available as medicine and otherwise from about 1860 to 1923, when it was added to the schedules of the then Opium and Narcotic Act the forerunner to our current CDSA, commencing prohibition. There are no significant recorded problems to health or society that appear to have occurred during that early period and there were in fact no significant problems occurring in Canada in 1923 itself. The "reefer madness" was imported from the USA and, as indicated above, repeated to Canadian audiences through the works of Emily 33
Murphy, one of Canada's first female magistrates, who was one of the famous 5 that obtained the vote for women in Canada. Regretfully she accepted the emotional reactions about cannabis based on racism against Mexicans occurring in the USA and wrote a book called "The Black Candle" under the pseudonym "Janey Canuck" that repeated the US reefer madness propaganda and was serialized in Maclean's magazine, thereby emotionally impacting our forefathers of that generation and their attitudes towards Cannabis significantly and with significant consequence for a few until the “60’s” when its popularity amongst white middle class youths caused those in power to start the slow process of ameliorating penalties for cannabis offences that has continued to date.
As stated by the Supreme Court of Canada in Malmo-Levine: Caine (supra) the court also noted that with respect to sanctions under the Narcotic Control Act the steady decrease since 1908 as follows:
35 Since the enactment of the Opium Act in 1908, the sanctions for drug possession have been steadily decreasing. In 1929, the penalty for the offence of possession was a minimum of six months to a maximum of seven years or a fine of between $200 and $1,000, or both. It was also within the discretion of the court to sentence offenders to hard labour or a whipping: The Opium and Narcotic Drug Act, 1929, S.C. 1929, c. 49, s. 4. See, e.g., R. v. Forbes (1937), 69 C.C.C. 140 (B.C. Co. Ct.) (accused sentenced to 18 months of hard labour plus a $200 fine for possession of marihuana).
36 With the amendment of the Opium and Narcotic Drug Act in 1954, penalties for offences involving trafficking increased. For simple possession however, the availability of hard labour was removed. The mandatory six-month prison sentence was repealed in 1961 when the Narcotic Control Act was enacted. However, the 1961 Act provided, under s. 17(1), that if the accused was a drug addict, the court could impose custody for treatment for an indeterminate period in lieu of another sentence.
37 In 1969, possession was redesignated as a hybrid offence, and the penalty on summary conviction for possession carried a maximum fine of $1,000 or imprisonment for a term not exceeding six months or both for a first offence and, for a subsequent offence, a fine not exceeding $2,000 or imprisonment for a term not exceeding one year or both: S.C. 1968-69, c. 41, s. 12. The penalties are heavier, of course, if the Crown proceeds by indictment. These provisions were still in effect when the NCA was repealed in 1996.
3. Statutory Framework of the NCA
38 Parliament did not attach the penalty of imprisonment directly to marihuana offences. Rather, the NCA states at s. 3(1) that “[e]xcept as authorized by this Act or the regulations, no person shall have a narcotic in his possession”. Narcotics are defined in the schedules to the NCA. Marihuana is a scheduled drug. The trial 34
judge found that while marihuana is a psychoactive drug, it is not (medically speaking) a narcotic. It is deemed to be a “narcotic” only for the parliamentary purposes of the NCA schedule.
39 Various attacks were made on this statutory vehicle in the companion Ontario appeal, R. v. Clay, [2003] 3 S.C.R. 735, 2003 SCC 75, including allegations of overbreadth, and are considered further in our reasons for rejecting that appeal, released concurrently.
D.1 There are a number of key issues or factors to be addressed in the context of “legalization”. These factors are as follows:
1. Eliminating the illicit market. At the forefront is the desire to eliminate crime and the illegal activities arising out of an illicit or “black market” due to the harms that are caused by such a market. A range of private and social harms attributable to black markets have been identified by a number of proponents of legalization (Friedman 1972, Hamowy 1987, Nadelmann 1989, Ostrowski 1990, Dennis 1990, Miron and Zweibel 1995) and these factors include:
a. Black market profits that finance organized crime; b. The removal of access to peaceful remedies for the resolution of disputes in the illegal but commercial market such as “turf wars” fought by rival gangs over territory; c. The risk of victimization faced by buyers and sellers transacting in an illicit market; d. Drug user crime caused by inflated black market prices; e. Increased health risks with respect to the quality of drugs produced in a black market. It is submitted that the harms from black markets pose a greater risk than the harms form cannabis use itself and it follows that a criminal justice or police model of enforcement must be avoided, including in relation to those who are restricted from access due to age or otherwise. It is submitted that any harms arising from the abuse of cannabis can be dealt with through education following the successes in that regard in relation to tobacco.
2. Age Limits. In 2002 the Canadian Senate recommended amendments to the CDSA aiming to permit persons over the age of 16 to procure cannabis and its derivatives at duly licenced distribution centers. (p.624 Cannabis, Our Position for a Canadian Public Policy, Report of the Senate Special Committee on Illegal Drugs). http://stressedanddepressed.ca\wp-content/uploads/2015/07/canadiansenatereport_2002.pdf
In considering what the appropriate age limit should be it should be remembered that by virtue of s.13 of the Criminal Code of Canada no person under the age of 12 years is criminally responsible and under the Youth Criminal Justice Act a “young person” is 35 defined as a person who appears to be 12 years old or older but less than 18 years old. That Act also defines a “child” as a person who is or appears to be less than 12 years old. Consequently restricting access to children should mean restricting access to those under the age of 12. The age limit for the possession and use of tobacco is 18 and in B.C. and most Provinces in terms of alcohol, the age limit is 19. While it would be easy to simply pick the ages of 18 or 19 as the age limit because of those age limits for tobacco and alcohol, the real issue that must be addressed is in relation to those between the ages of 12 and 17 with the Senate recommendation, being 16. It is of critical importance to remember that young persons comprise approximately 24% of those accused of cannabis offences. http://www.statcan.gc.ca\pub\85-002-x\2009002\article\10847-eng.htm#a4
According to the National Survey on Drug Use and Health in 2010 – before marihuana was legalized by any State – 21.5% of American adults between the ages of 18-25 ignored legal prohibitions and used marihuana at least once in the past month. For adults 26 and older the percentage was only 4.8%. Consequently this statistic shows that young people are far more likely than the general public to use marihuana and it is important that they are not left behind in the marihuana legalization efforts. http://www.usnews.com/news/articles/2013/01/15/young-adults-left-behind-by-marijuana-legalization-in- colorado-washington?page=2
Consequently it is important to protect these young people from the harms that might come to them from the criminal justice system or black market approach. What is recommended is a “parental permission policy” that allows for the legal possession of cannabis for those 15 years or younger that protect such youth, keeping in place the parental control over younger teens while sending the message that cannabis is not as dangerous as alcohol or tobacco and remembering that to apply a criminal justice approach to them results in greater harms to them than allowing them to use cannabis.
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It must be remembered that young people engage in all kinds of activities at an early age that affect their developing brains, including miscellaneous contact sports and to subject them to the criminal justice system or black market approach not only can cause harm to their developing brains but has the potential to prejudice them for life.
While there is a consistent amount of hysterical information put out from time to time in the media about youth consumption rates and schizophrenia or damaging developing brains or minds, there is also a considerable amount of information to the contrary and the evidence supports that cannabis use has increased substantially amongst young people over the past 30 years without any evidence of any particular problems and in particular there is no comparable increase in schizophrenia for example and IQ scores appear to be steadily increasing overall.
3. Personal cultivation. It is submitted that the decision in Allard v. Canada of Phelan, J. on February 24, 2016, establishes that the concerns with respect to personal production in various sizes and shapes and places and locations can be carried out without or by significantly reducing any risks of fire, mold or public safety and any of these problems can be ameliorated by appropriate action, including ensuring compliance with local government bylaws with respect to zoning and construction, remembering that local governments do not have a “criminal law” power to prohibit but a power to regulate. Various “engineered solutions” like the “Bloombox” exists to enable safe and secure production in various locations.
4. Manufacturers or Producers for the Public. It is anticipated that as in the case of tobacco, control over manufacturing will be maintained by the federal government with an exemption for personal production. Currently under the MMPR approximately 26 licenced producers exist and are approved from a very large group of applicants who have had to spend a considerable amount of money to comply with all of the excessive rules and regulations imposed given the continuing context of a criminal law prohibition generally. It is submitted that just like the craft brewery developments that manufacturing should be open to a wide range of producers big and small allowing the market to determine whether they sink or swim depending upon the nature of their product and its demand by consumers. All of these manufacturers should be required to meet certain production standards including possibly organic standards and subject their product to testing that will enable retailers to determine the cannabinoid and terpinoid profiles and other details so that the ultimate consumers will be aware of how the product was made and what it contains.
5. Retail Outlets. It is submitted that while some people want to produce for themselves or have a caregiver produce for them, the great majority of people, like with alcohol and tobacco and other goods, simply wish to go to a retail store in order to acquire the product they desire. In the medical context the dispensaries and compassion clubs are an example of such retail outlets. As stated by Justice Phelan in the Allard v. Canada February 24, 2016 decision dispensaries are at the heart of the reasonable access issue in a medical context and with appropriate provincial and local government regulation ensuring quality control safe points of sale can be accomplished. Consequently it is important not to associate the sale of cannabis with the sale of 37 alcohol and tobacco especially to send a message to young people that cannabis is not the same as alcohol and tobacco. Again it is important not to drive young people into various secret locations in order to obtain their cannabis illegally and they should be able to obtain it from a retail store subject to age verification and with provisions for information and education taking place for the benefit of all. It is important that those people working in the dispensary or retail stores are knowledgeable about cannabis and can provide some education accordingly at points of sale. Obviously product being provided for sale to the public must go through appropriate testing for quality control and provide appropriate information on the packages and labels to inform the consumer accordingly.
6. Taxes. Cannabis for medical purposes should be subject to 0 tax including such taxes as HST and PST and the cost of producing or purchasing medicine should be deductible the same as other medicines. The sale of social or recreational cannabis should be subject to taxes, but those taxes should start low and perhaps increase over time depending upon the market situation. It is a mistake to immediately set a high tax rate as that will simply cause or create another black market. In the early days in Colorado it was common for somebody to meet you on the street corner and says “I’ll sell it to you without the taxes”. It is anticipated that tax revenues can be significant depending upon what happens in the market and that these taxes should be used initially to address any harms that are remedial and to fund educational and other programs to ensure the complete elimination of involvement of crime and criminals.
7. Educational Programs. Despite widespread public misinformation indicating that cannabis is inherently harmful the evidence points to it only being harmful when abused. There is a program for example developed by the Center for Addiction Research of British Columbia for children in grades 4-10 entitled “iMinds” that teaches cannabis harm reduction to grade school children. The program teaches them about dose, familiarity, setting, mindset, quality, purity, strain selection, mode of administration, clean ignition and smoke cooling. It is submitted that providing as much education as possible about the subject is the appropriate approach and that the education must not only be addressed to young people but also their parents as the preferable approach instead of the use of the criminal justice system and its consequences to both the young person and the parents. The most important principle is that whatever approach is taken under a legalization model the harms of that approach should not lead to not more serious harms than the use of cannabis itself. There is no significant evidence that cannabis use has caused any major problem in the health care system or otherwise and it is submitted that evidence of cannabis abuse can be dealt with through education thereby avoiding the serious harms that come with black markets and government’s prohibition.
8. International Treaty Obligations. It must be remembered that international treaties do not form part of the law of the land in Canada and require domestic legislation to implement them. Our domestic legislation is the Controlled Drugs and Substances Act and all of our legislation is subject to our Constitution and in particular the Canadian Charter of Rights and Freedoms. In accordance with the CDSA there is provision for Ministerial exemption (s.56), the passing of Regulations (s.55) and the 38 additional removal of particular drugs from the schedules (s.60) and these provisions enable Canada and the Provinces to proceed to legalize without being concerned about international treaty obligations and if necessary can always take steps to withdraw or modify the treaties.
9. Criminal Records. As legalization progresses it will become important to expunge the records of all Canadians found guilty of any cannabis offences and particularly any minor cannabis offences. This will involve not only expunging references in the Canadian Police Information Computer (CPIC) but also in various databases used by law enforcement across the country. It is submitted that a “criminal record” should consist solely of a conviction and all references to dismissals, stays of proceedings or withdrawals while available to law enforcement for intelligence purposes should not be disseminated to the general public or perspective employers in particular so as to cause individuals any prejudice in the future.
10. Industrial Hemp. With the advent of legalization, the restrictions on the growing or production and distribution of industrial hemp will be removed and there is a large body of evidence suggesting that its use or re-use will have significant implications for many of the environmental issues that the world is facing. Paper, fiber, fuel, food and medicine applications of industrial hemp are currently unrealized due to cannabis prohibition.
11. Reduction in Health Care costs. “A new study published in the journal Drug and Alcohol Review found that people are increasingly substituting prescription medication, alcohol, and illicit drugs with cannabis, signaling a shift in the public’s understanding of marijuana’s medicinal benefits. Of the 473 adult cannabis users surveyed by the Centre for Addictions Research of British Columbia, more than 86 percent of respondents reported giving up one or more of the substances for pot, with the majority (80.6 percent) forgoing pharmaceuticals for the non-toxic alternative. Those under 40 were also more likely to substitute all three for cannabis, demonstrating its dynamic appeal for both recreational and medical purposes. http://www.attn.com/stories/3609/prescription-drugs-that-can-be-replaced-marijuana
It is important to note that emerging evidence demonstrates that many patients are turning to cannabis to safely and effectively reduce and/or replace synthetic antianxiety, hypnotic, soporific, and sedative medications after having grown tired of the negative side effects associated with their use. For example, many cannabis buyers club members say they use cannabis as a substitute for prescription narcotics (Gieringer, 1996), and in examinations of 2,480 California patients, Dr. Mikuriya found that 27% reported using cannabis for “mood disorders” and another 5% used cannabis as a substitute for more toxic drugs (Gieringer, 2002). Moreover, a recent survey of doctors in California found “that many of their patients were able to decrease their use of…antidepressant, anti-anxiety, and sleeping medications, or else they use cannabis to treat their side effects of jitteriness or gastrointestinal problems in order to stay on their medications” (Holland, 2010, p. 285). 39
A Brief History of the Use of Cannabis as an Anxiolytic, Hypnotic, Nervine, Relaxant, Sedative, and Soporific, David Malmo-Levine and Rob Callaway, M.A., 2012 http://stressedanddepressed.ca/booklets-forms-and-downloads/a-brief-history-of-the-use-of- cannabis-as-an-anxiolytic-hypnotic-nervine-relaxant-sedative-and-soporific-2/
There is mounting evidence to support the notion that cannabis can actually help fight cancer, as well as treat a myriad of other conditions like narcolepsy and eating disorders. Right now, pharmaceutical companies make insane profits from selling medications to treat many of these diseases and disorders, and the hefty price tags often put them out of reach for many patients. Now, the prices of these drugs are not always set to create extraordinary profits, in the defense of many companies. Development and research costs for medication can be astronomical, and these companies need to recoup the costs to stay in business. But that doesn’t help people who need the medications, and who have to try and get them under a broken and ineffective health care system, like the one the U.S. employs. But if marijuana, which literally grows in ditches all across the world, can be synthesized and used to treat some of these ailments, imagine the money that can be saved. Again, billions, if not trillions of dollars.
What Effect Will Marijuana Have On The Healthcare System? – Sam Becker, March 6th, 2015 http://www.cheatsheet.com/business/does-legal-marijuana-help-or-
“Dr. Raphael Mechoulam, NORML, High Times and Omni magazine (September 1982) all indicate that, if marijuana were legal it would immediately replace 10-20% of all pharmaceutical prescription medicines (based on research through 1976), and probably, Mechoulam estimates, 40-50% of all medicines, including patent medicines, could contain some extract from the cannabis plant when fully researched – http://www.jackherer.com/chapter06.html http://www.cannabisculture.com/content/2016/02/23/protecting-the-young-and-the-poor-from-prohibition p.17 and 25
D.2 What follows is a technical review of what legislative amendments might be necessary if a tobacco or alcohol model of control is essentially followed but hopefully with some recognition of the noncriminal justice approach in favor of an educational approach.
Cannabis (marihuana) Legislation – after Prohibition
1. Federal legislation
(a) By s. 60 of the Controlled Drugs and Substances Act (CDSA), the Gov. in Council (the Federal Cabinet) may, by order, amend any of the Schedules I through VIII by adding to them or deleting from them any item or portion of any item, where the Gov. in Council deems the amendment to be necessary for the public interest.
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(b) Cannabis, its preparations derivatives and other similar synthetic preparations are contained in schedule II to the CDSA.
(c) The Cabinet should pass an Order in Council simply deleting Cannabis from Schedule II. It will then no longer be a “controlled drug” and the Federal government will have ceased to use its “Criminal Law Power” over Cannabis and will resort to other heads of federal constitutional power to exercise some measure of control, much like Tobacco.
(d) The Excise Act, 2001 (S. C. 2002, c. 22) should be amended to include ‘Part 4 Cannabis’ and provide, like the regulation of Tobacco in Part 3, that no person shall, other than in accordance with a Cannabis license issued to the person, manufacturer, a cannabis product. However, a person who is not a Cannabis licensee may manufacture a Cannabis product (a) from packaged raw leaf cannabis or manufactured Cannabis on which the duty has been paid, if the cannabis product is for their personal use; or (b) from raw leaf cannabis grown on land on which the individual resides, if (i) the cannabis is for their personal use or that of the members of their family who reside with the individual and who are 16 years of age or older, and (ii) the quantity of cannabis manufactured in any year does not exceed 15 kg for the individual, and each member of the individual’s family, who resides with the individual and who is 16 years of age or older.
(e) The Cannabis Act - would be enacted to federally regulate the manufacture, sale, labeling and promotion of cannabis products and to make consequential amendments to other Acts. “Manufacturing” does not include or preclude producing or growing for one’s personal use or family as permitted under the Excise Act. Again, as for Tobacco, it relates to the packaging, labeling, distributing and importing of cannabis products for sale in Canada. This legislation would essentially enable the federal government to pass legislation in this regard, relating to the health of Canadians, to protect young persons and others from inducements to use cannabis and to protect their health by restricting access to cannabis products, and to enhance public awareness of any health consequences from the use of cannabis product. The manufacturing of cannabis products for sale to the public would have to meet certain standards established by regulations. It would contain general rules with respect to access, labeling, promotion, as well as for the making of regulations and for enforcement.
(f) The Food and Drugs Act regulations pertaining to “Natural Healthcare Products” would apply to cannabis being held out to have medicinal properties and in relation to the sale thereof to the public.
2. Provincial/Territorial
(a) The Cannabis Control Act – the Provinces and Territories should pass this legislation that will control the dealing in, selling, offering for sale, distribution, provision, advertising or promotion of the use of cannabis, that is in compliance 41
with this Act and regulations. It would control misleading advertising with respect to the character, toxicity, or composition of any product and would set the age of permissible consumption at 16 years of age, consistent with it being nontoxic compared to Tobacco and milder than alcohol (to quote anthropologist Margaret Mead UPI October 27th,1969) and consistent with the 2002 Senate Nolin Report. This Act would restrict the sale of cannabis in certain places and prevent smoking in or near schools or other places and would regulate the display or promotion of cannabis products, providing appropriate powers of enforcement, etc. It would authorize local governments to pass bylaws in relation to this issue locally, if the powers to do so are not already covered by the current Local Government Act. This is a power to regulate not prohibit. Obviously zoning can, for example, prevent the carrying on of a business in a residential area. Local standards regarding indoor cultivation, permits and fire and electrical safety would be dealt with at this level, perhaps guided overall by the provincial Act.
3. Local Government – Cities and Municipalities
Local government would exercise existing powers to regulate the zoning and other aspects of any cannabis related business and to a limited extent personal production. Individuals are permitted to grow their own food to feed their families and can give it away to their neighbors, or take it to the local farmers market or sell it from a stand outside the property. This includes the growing of not only a wide variety of fruits and vegetables, but also numerous herbs and spices. This includes the production of plants to be used for medicinal purposes. It is only if those plants are intended for sale to the public and are held out to have particular medicinal properties and are not for personal consumption that they become subject to the Food and Drugs Act and regulations thereunder, including the Natural Healthcare Products Legislation. Marihuana for medical purposes would fall under these regulations, unless the government decides to use separate legislation like the Marihuana for Medical Purposes Regulations (MMPR), but with an amendment for personal or caregiver production as per the Marihuana Medical Access Regulations (MMAR).as decided in Allard (supra). These Regulations would no longer be under the CDSA if cannabis is removed from schedule II.
Individuals are permitted to produce their own beer and wine for their own consumption and that of their families and visitors, but they cannot do so for sale to the public. That is covered by the federal Food and Drugs Act.
It is anticipated that local bylaws would deal with problems of smell or odor, requiring any producer to meet certain minimum standards to prevent such smells, or odors impacting their neighbors.
Similarly, it is anticipated that existing Electrical and Fire safety requirements, whether provincial or local would have to be complied with. If a person intended to produce indoors.
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Similarly, all other bylaws with respect to buildings and their construction or modification, and specifically pertaining to the growing of plants indoors or outdoors would apply.
Proponents of specific and restrictive legislation should have regard to the Richters 2014 seed catalogue and review the numbers of plant products for sale to the public that are either poisonous or held out to have medicinal value, and accept that in a legal market where there is an abundant supply the need for restrictive regulation with respect to numbers of plants or amount of wattage are no longer necessary.
It is anticipated that local bylaws will be specifically developed to cover this area and that they will, over time, become reasonable as the market settles.
E. Impaired Driving or having care or control of a vehicle, vessel, aircraft or railway equipment while your ability to do so is impaired by alcohol or a drug
With the advent of the ‘legalization of cannabis’ finally upon us, one major valid concern raised by opponents or those who wish to "go slow" is a concern about a potential increase in "impaired driving by a drug". We hear in the press of various devices that some, often ex police officers, are coming up with to detect the consumption of cannabis roadside like breathalyzers, but none of them determine whether or not one's "ability to drive his impaired, only that one has consumed at some time in the past and measures ‘Nano gram levels’ in the blood. The two problems calling for exceptions or at least consideration are (1) that traces of cannabis use remain detectable in the body up to 3 months or more after consumption in a non-active form, and (2) constant regular medical users will be way over the currently accepted 5 Nano gram level (Washington and Colorado) and yet their ability to drive will not be impaired due to complete tolerance to those effects. In Canada, s. 253 and 255 of the Federal Criminal Code provides, and has so provided since at least 1970, that (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. (2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug. 43
Punishment 255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable, (a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely, (i) for a first offence, to a fine of not less than $1,000, (ii) for a second offence, to imprisonment for not less than 30 days, and (iii) for each subsequent offence, to imprisonment for not less than 120 days; (b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and (c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months (2) Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years. Enforcement of this law traditionally has been by way of police observations on their own on the highway or at roadblocks or as a result of a complaint from a citizen of erratic driving – the first sign of impairment. Most police are trained in roadside testing and police detachments have access to officers that are specially trained called "Drug Recognition Experts" or DRE's. Most police cruisers now have the ability to videotape what transpires at roadside and this, if engaged, serves to eliminate disputes with respect to the facts about the person's performance on the test. All that may be required is the further training of police officers. No new legislation is required. The smell of cannabis is undoubtedly easier to detect than immediate alcohol impairment signs thereby entitling further investigation. There is no magic machine like the Breathalyzer for alcohol to prove the 253(1)(b) offence above that only applies to alcohol. If there is a reasonable suspicion of such impairment the officer should apply roadside testing or call-in a DRE expert to do so and videotape the entire process. We all agree with the above law and wish to discourage such conduct that places innocent people at risk of significant harm and death. Those who smoke cannabis, subject to some exceptions described above and below, should not, in order to be safe, drive for about an hour after consuming. If they have consumed it in an edible form, then they should know that it will likely not have any effect for about an hour, as it goes through your liver and metastasizes and becomes 3 to 4 times stronger and then spreads throughout your body. Consequently, they should either driver right away if they have to if the trip is going to be less than an hour or otherwise plan not to for a 44 considerable period of time of at least several hours. This applies particularly to novice users of cannabis as well as regular users who do not consume constantly like some medical users, but on social and perhaps other occasions. The exceptions are those who consume for medical purposes and on a constant basis. They do not get "high" at all, as they have developed a large tolerance and, unlike alcohol, they do not get more intoxicated the more they consume. It is important to ensure that only those who do drive while "their ability to do so… is impaired by alcohol or drug", are subject to the law and not those who might simply have a high ‘nanogram’ reading, but who are not in fact impaired. In Washington State they have set an arbitrary 5 ng level and you are presumed to be impaired and that is not rebuttable whereas in Colorado it is rebuttable. The former causes major unfairness to significant medical users who are not in fact impaired. The nature and impact of cannabis is different than alcohol and the only fair way to test one's "ability to drive" is by roadside testing that can be videotaped to minimize disputes as there is no machine comparable to the breathalyzer for alcohol when it comes to cannabis or the reading must at least be rebuttable, to comply with basic fairness protected by our Constitution and the Charter of Rights and Freedoms. Apparently in B. C. one can attend at an Insurance Corporation of British Columbia (ICBC) office and ask to be subjected to a "competency test" available for seniors and those taking various drugs who wish to determine the baseline and the impact of their consumption on their ability to drive. The results could be presented to a police officer roadside to assist if necessary in determining whether or not the particular individuals "ability to drive” is impaired in the circumstances. We do not need any new legislation, nor any amendments to this legislation, in order to address this issue in Canada. While we all support a law that prohibits people from driving while their ability to do so is impaired by cannabis or any drug, we should oppose any arbitrary level being set that catches within it those who may be over that limit but whose "ability to drive" is not in fact impaired. If an arbitrary limit is to be set, the law must at least provide that it is "rebuttable" by "evidence to the contrary." The literature and studies show that the only way to fairly and reliability test one's ability to drive in relation to cannabis impairment is through roadside testing of one's motor coordination skills because of the nature of cannabis and how non-active metabolites remain in the fatty deposits of the body, long after consumption and that chronic users develop a tolerance so that a 5 ng level in chronic medical users does not determine "impairment" but merely that one has consumed. The devices that are being brought to market and that are held out to be similar to breathalyzer machines for alcohol do not measure the impairment of one's ability to drive. There can be no doubt that there have been a lot of people driving while under some influence of cannabis marihuana and other types of drugs over a long period of time and police statistics that exist in this regard would be helpful to know and add to the 45 discussion to determine what have been the past police practices and how effective have they been. The analysis and materials below were provided by Paul Armentano, Deputy Director National Organization for the Reform of Marijuana Laws (NORML) Washington, D.C. Pot is associated with compensatory driving behavior; booze is not Stoned drivers are slower drivers. That is the finding of a just published federal study
Saliva test technology is simply a detection test, not a per se indicator of whether subjects are "under the influence" of drugs. So to presume that such a test can identify impairment, or is even designed to do so, is incorrect. To date, no such data exists correlating THC/saliva detection levels with behavioral impairment (such as Breathalyzer detection of alcohol at levels above .08 in blood have been correlated as valid predictors of alcohol-induced driver impairment). In fact, no scientific study has even attempted to correlate the detection of THC in saliva (or breath) with actual behavioral or psychomotor impairment of any kind. (Moreover, studies that have attempted to correlate THC/blood levels with increased risk of traffic
46 accident have largely failed to do so. See the 2015 study by NHTSA and the review by Elvik.)
NHTSA_2015.pdf
Alcohol remains unique among drugs in its predictability, both in its pharmacokinetics (drug metabolization by the body) and behavioral effects. As a result, the United States National Highway Traffic Safety Administration (NHTSA) acknowledges: “Toxicology has some important limitations. One limitation is that, with the exception of alcohol, toxicology cannot produce ‘per se’ proof of impairment.” So while it is possible that saliva drug technology may pose certain potential advantages (e.g., it can be administered on site rather than post arrest hours later) over urine or blood specimen collection, two matrixes that are notoriously unreliable for establishing either behavioral impairment or recency of drug use, it is unlikely to provide any direct or definitive evidence of whether or not one is driving under the influence of cannabis or anything else.
Ultimately, if law enforcement’s priority is to better identify drivers who may be under the influence of cannabis then the appropriate response is to identify and incorporate specific performance measures that accurately distinguish those cannabis-influenced drivers from those who are not, such as via the use of modernized SFSTs, more DREs, or even the use of performance technology such as this: http://www.mycanaryapp.com/
[email protected] 2015_MIAOWIA.PPT Dartmouth_Impairme Alex Ballingall Clinical study at CAMH tests how cannabis nt)slides.pptx affects volunteers driving skills Toronto Star Nov 26 2015.msg http://www.nhtsa.gov/PEOPLE/INJURY/research/job185drugs/cannabis.htm “Interpretation of Blood Concentrations: It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects. ... It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations.” http://www-nrd.nhtsa.dot.gov/Pubs/812072.pdf “The alcohol laws are based on evidence concerning the decreased ability of drivers across the population to function safely at these BACs. Such evidence is not currently available for concentrations of other drugs." http://oversight.house.gov/hearing/planes-trains-automobiles-operating-stoned/ Testimony of Dr. Jeffrey Michael, Associate Administrator for Research and Program Development at NHTSA, before the US House of Representatives, Committee on Oversight and 47
Government Reform, July 31, 2014 “The available evidence does not support the development of an impairment threshold for THC (in blood) which would be analogous to that (of) alcohol.”
Marijuana and Actual Driving Performance: Final Report. DOT HS 808 078, November 1993. http://ntl.bts.gov/lib/25000/25800/25867/DOT-HS-808-078.pdf
“One of the programs objectives was to determine whether it is possible to predict driving impairment by plasma concentrations of THC and/or its metabolite, THC-COOH, in single samples. The answer is very clear: it is not. Plasma of drivers showing substantial impairment in these studies contained both high and low THC concentrations; and, drivers with high plasma concentrations showed substantial, but also no impairment.” (page 107)
As far as studies go with regard to the length of time that cannabis acutely impairs, again NHTSA Is a premiere source of information. Below is an excerpt from a recent affidavit written by Paul Armentano which addresses this issue:
“When cannabis is inhaled, maximal THC/blood levels are achieved within minutes.1 Acute cannabis impairment typically follows shortly thereafter. According to the NHTSA online factsheet, ‘Drug and human Performance: Cannabis/Marijuana’, peak effects from smoking cannabis occur 10-30 minutes following inhalation.2 The NHTSA/Department of Transportation report, State of Knowledge of Drug-Impaired Driving, summarizes that these acute effects “dissipate quickly after one hour.”3 Because of this relatively narrow duration of drug effect following inhalation, it has been suggested in the peer-reviewed literature that subjects who wish to avoid driving under any influence of cannabis wait 3 to 4 hours after dosing before attempting to operate a motor vehicle. 4
... . Consistent with NHTSA’s timeline, a 2011 analysis of motor vehicle accident risk following cannabis use by Pulido and colleagues5 reports significantly elevated risk of traffic accident in the first hour immediately following cannabis exposure, but further acknowledges, “[T]he cannabis effect tends to disappear soon after the first 60 minutes of use.”
Similarly, a meta-analysis of over 120 relevant studies cited by Sewell and colleagues reports, “Maximal impairment is found 20 to 40 minutes after smoking, but the impairment has vanished 2.5 hours later.”6 A previously cited review by Fischer and
1 Grotenhermen 2003. Pharmacokinetics and pharmacodynamics of cannabinoids. Clinical Pharmacokinetics 42: 327-360. 2 NHTSA Factsheet online at: http://www.nhtsa.gov/People/injury/research/job185drugs/cannabis.htm 3 United States Department of Transportation, National Highway Traffic Safety Administration [NHTSA]. State of Knowledge of Drug-Impaired Driving: Final Report, page 55. Online at: http://www.nhtsa.gov/people/injury/research/stateofknwlegedrugs/stateofknwlegedrugs/ 4 Fischer et al. 2011. Lower risk cannabis use guidelines for Canada: a narrative review of evidence and recommendations. Canadian Journal of Public Health 102: 324-327. 5 Cannabis use and traffic injuries. Epidemiology 22: 609-610 6 Sewell et al. 2009. Op. Cit. 48 colleagues (See page 3 of this report.) recommend subjects wait 3 to 4 hours after cannabis ingestion before operating a motor vehicle, concluding that the acute effects of the substance on psychomotor impairment have “typically cleared” after this duration of time.7 A 2015 study by Huestis and colleagues reports that inhalation of a single cannabis cigarette may impact measurements of psychomotor function (e.g., divided attention) for up to 3.5 hours in a controlled setting.8
While there exists some discrepancy in the literature with regard to the length of time associated with acute cannabis-induced impairment, these estimates typically do not exceed two to three hours following inhalation and may be limited to as few as 20 to 40 minutes in duration.
Some further articles on the subject: THC detectable for seven days after consumption https://www.centralmaine.com/2016/01/02/thc-detectable-for-seven-days-after-consumption/ Kudos to the editors for acknowledging that proposed per se thresholds for marijuana are not evidence-based and may result in inadvertently prosecuting non-impaired drivers (“Marijuana OUI not as simple as drawing blood Dec. 21). http://www.centralmaine.com/2015/12/21/our-opinion-marijuana-oui-not-as-simple-as-drawing-blood
This is because both THC and its byproducts are detectable for periods of time extending well beyond any reasonable period of impairment. According to data published this spring http://www.fsijournal.org/article/S0379-0738(15)00040-7/abstract in the scientific journal Forensic Science International, residual levels of THC may be present in subjects for up to seven days after they have ceased their use of cannabis.
As acknowledged by http://www.nhtsa.gov/PEOPLE/INJURY/research/job185drugs/cannabis.htm no less than the U.S. National Highway Transportation Safety Administration, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. … It is inadvisable to try and predict effects based on blood THC concentrations alone.”
Testifying before Congress http://oversight.house.gov/hearing/planes-trains-automobiles-operating- stoned last year, Dr. Jeffrey Michael, associate administrator for Research and Program Development at NHTSA, affirmed: “The available evidence does not support the development of an impairment threshold for THC (in blood) which would be analogous to that (of) alcohol. … more precise association of various THC levels and degrees of impairment are not yet available.”
As states like Maine consider amending their cannabis consumption laws, lawmakers would be best-served to avoid amending traffic safety laws in a manner that relies solely
7 Fischer et al. 2011. Lower risk cannabis use guidelines for Canada: a narrative review of evidence and recommendations 8 Desrosiers et al., 2015. Smoked cannabis’ psychomotor and neurocognitive effects in occasional and frequent smokers
49 on the presence of THC or its metabolites as determinants of guilt. Otherwise, the imposition of traffic safety laws inadvertently may become a criminal mechanism for law enforcement and prosecutors to punish those who have engaged in legally protected behavior and who have not posed any actionable traffic safety threat. http://www.nhtsa.gov/PEOPLE/INJURY/research/job185drugs/cannabis.htm
“Detection of total THC metabolites in urine, primarily THC-COOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window of intoxication and impairment. ...
“[It is] currently impossible to predict specific effects based on THC-COOH concentrations.” http://norml.org/pdf_files/Review_biologic_matrices_indicators_cannabis_use.pdf
“quantitation of THC-COOH can neither accurately predict the time of the last cannabis use nor suggest any relationship between urine drug concentrations and psychomotor performance.”
Dale Geiringer Ph.D, has produced a 44 page manual entitled "California Norml – Guide to Drug Testing" (2013) and it is available through Amazon, at a cost of about $20, but you can get it directly from California Norml (www.Norml.org and [email protected]) for about $3.
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The Manual opens with a quote from Jonathan Swift, Gulliver's Travels, A Voyage to Laputa, Chapter VI for your amusement: "He advised great statesman to examine into the diet of all suspected persons;… To take a strict view of their excrements, and from the colour, the odor, the taste, the consistence, the crudeness, or maturity of digestion, form a judgment of their thoughts and designs: because men are never so serious, thoughtful, and intent, as when they are at stool, which he found by frequent experiment…" Analysis of the Rocky Mountain High Colorado Police assessment by Dale Gieringer Ph.D. author of “California Norml Guide to drug testing” http://www.rmhidta.org/html/2015%20PREVIEW%20Legalization%20of%20MJ%20in%20Colorado%20th e%20Impact.pdf Since law enforcement studies are always suspect, it inspired me to analyze the most recent accident fatality statistics from the US National Highway Traffic Safety Administration's Fatal Accident Recording System (FARS). The 2014 data have just been released - that's the year when adult sales started in CO and to a lesser extent WA. They show a significant increase in the number of THC+ drivers both in CO and WA. This is a continuation of a phenomenon that has been ongoing for the past few years. I must admit that the latest data are disturbing: form 2013 to 2014, the proportion of THC+ drivers increased by 53% in CO and by 49% in WA, both of which legalized; CA saw a lesser but significant 24% increase, while the US at large was up 13%. No doubt we'll see alarming headlines about this trend. This might reasonably be ascribed to increased use under legalization. Perhaps it's cannabis tourists driving around on edibles. In WA state, a whopping 45% of all fatal crashes reported a THC+ drug test in 2014. In CO, the figure was 29%; in CA 24%, and in the US at large, 13%. (the average number of persons in a fatal accident is three). Also, they don't allow one to tell what other drugs the marijuana-positive drivers were using. So the figures above are higher than the actual number of fatal drivers under the influence of marijuana alone. As we know, the finding of THC in drug tests doesn't mean that marijuana actually caused the accident, but that the driver used it in the hours or days before the accident. I compare this to looking at the number of fatal drivers who are Latino. Undoubtedly their proportion has increased dramatically in recent years, but this doesn't mean Latinos are dangerous drivers. One obvious reason for the increase could simply be that there are more MJ users in the population. This would be consistent with the recent JAMA report that the proportion of Americans smoking marijuana has doubled in the past decade: http://www.theguardian.com/society/2015/oct/21/marijuana-use-doubles-government-survey The best response to the admittedly disturbing FARS data is to look at actual traffic safety as measured in fatalities per 100 million vehicle miles driven: http://www-nrd.nhtsa.dot.gov/departments/nrd-30/ncsa/STSI/53_WA/2014/53_WA_2014.htm The data for 2014 aren't in yet.; however, data from preceding years show that MJ-friendly states 51 have consistently ranked above the US average in traffic safety. As of 2013, CA had a fatality rate of 0.94; CO 1.03; WA 0.76. All of these are LOWER than the US average of 1.11. http://www.iihs.org/iihs/topics/t/general-statistics/fatalityfacts/state-by-state-overview So while it may be true that we are seeing more marijuana positives among fatal accident victims in states with liberal laws, we are NOT seeing any evidence of higher accident rates. That should be a major comfort. The FARS statistics come exclusively from drivers involved in fatal accidents. Therefore, they shouldn't be affected by changing law enforcement policies regarding whether to test drivers in the course of traffic stops or arrests. FARS only reports drug test results from drivers. As many as three different drugs may be reported for a single driver. If there are more, the excess are ignored. Alcohol is reported separately. Unfortunately, the FARS totals don't allow one to determine how many cases involve both drugs and alcohol. Cal NORML scored a rewarding victory with the San Francisco Taxi Drivers union. We got the SF Municipal Transport Agency to create a medical marijuana exemption in their drug testing program for taxi drivers, even though state law doesn't clearly permit it. The SFMTA board members were surprisingly receptive to our message that drug testing for marijuana is unfair ,especially for medical users, given the long time that MJ use is detectable. We almost got them to exempt MJ from the test program entirely - this despite the fact that taxi driving is considered a safety-sensitive job. http://www.canorml.org/SF_Exempts_Medical_Marijuana_from_Drug_Testing_for_Taxis.html
How safe is it to smoke pot and drive? http://www.masslive.com/news/index.ssf/2015/11/sjc_cautions_police_against_sn.html
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BIBLIOGRAPHY
Report: One In Eight Federal Drug Prisoners Serving Time For Marijuana Offenses http://blog.norml.org/2015/11/10/report-one-in-eight-federal-drug-prisoners- serving-time-for-marijuana-offenses/
WPost: How pot and hippie beer explain the future of the American economy https://www.washingtonpost.com/news/wonk/wp/2015/11/07/in-the-land-of- microbrews-and-marijuana/
Cannabis and the brain http://www.jneurosci.org/content/35/4/1505.abstract
Washington: Marijuana Law Changes Not Associated With Increased Teen Use http://blog.norml.org/2015/09/09/washington-marijuana-law-changes-not- associated-with-increases-teen-use/
Cannabis as an exit drug There are a handful of peer-reviewed papers indicating the potential of cannabinoids as an exit drug: http://blog.norml.org/2010/04/23/closing-the-gateway-to-drug-abuse-with- cannabis/
Amanda Reiman’s paper, “Cannabis as a substitute for alcohol and other drugs,” is online here: http://www.harmreductionjournal.com/content/6/1/35. She is based in Oakland, CA.
Study: Kicking The Opiate Habit, With Cannabis http://reset.me/study/study-kicking-the-opiate-habit-with-cannabis/
Cannabis Emerging clinical applications
The 2015 update includes two additional disease profiles (Parkinson’s disease and PTS) and includes summaries of an addition 50+ relevant clinical and/or preclinical trials specific to cannabinoids’ therapeutic utility. Several existing sections, such as Chronic Pain, Diabetes, and Epilepsy, have been significantly expanded since the last edition (January 2013). Also updated is the Introduction to the Endocannabinoid System (by Dustin Sulak, DO) and Why I Recommend Medical Cannabis (by Estelle Golddtein, MD).
With summaries and citations of well over 250 recent peer-reviewed studies, this updated publication is one of the most thorough and up-to-date source-books 53 available specific to the established therapeutic qualities of cannabis. The updated publication is available online here: http://norml.org/library/recent-research-on-medical-marijuana.
Individual sections may be accessed at the urls below: Foreword
Introduction to the Endocannabinoid System
Why I Recommend Medical Cannabis
Alzheimer's Disease
Amyotrophic Lateral Sclerosis (ALS)
Chronic Pain
Diabetes Mellitus
Dystonia
Epilepsy
Fibromyalgia
Gastrointestinal Disorders
Gliomas/Cancer
Hepatitis C
Human Immunodeficiency Virus (HIV) 54
Huntington's Disease
Hypertension
Incontinence
Methicillin-resistant Staphyloccus aureus (MRSA)
Multiple Sclerosis
Osteoporosis
Parkinson's Disease
Post-Traumatic Stress
Pruritus
Rheumatoid Arthritis
Sleep Apnea
Tourette’s Syndrome
RawStory: Five reasons the craft cannabis industry will only get bigger and better http://www.rawstory.com/2016/02/five-reasons-the-craft-cannabis-industry-will- only-get-bigger-and-better
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Medical Marijuana Could Help the NFL Cure the Illness Menacing Players' Brains, Activists Say http://www.nbcnewyork.com/news/sports/Medical-Marijuana-NFL-Players-Super- Bowl-50-367808421.html
Study on Marijuana use by educational level http://www.samhsa.gov/data/sites/default/files/NSDUHresultsPDFWHTML2013/We b/NSDUHresults2013.htm
Handbook on Cannabis edited by Roger Pertwee (2014 Oxford University Press)
2014 American Herbal Pharmacopoeia at www.herbal-ahp.org http://www.stcm.ch/files/us-herbal-pharmacopoeia_cannabis-monography.pdf
What Effect Will Marijuana Have On The Healthcare System? – Sam Becker, March 6th, 2015 http://www.cheatsheet.com/business/does-legal-marijuana-help-or-
Satisfied!
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APPENDICES
1. Handbook of Cannabis, Edited by Robert G. Pertwee, Institute of Medical Sciences, University of Aberdeen, UK, Oxford University Press 2014, index;
2. Cannabis Evolution and Ethnobotany, Robert Clarke and Mark Merlin, University of California Press, 2013, index;
3. Marijuana Myths Marijuana Facts, Lynn Zimmer and John Morgan, list of Royal Commissions;
4. Decriminalization of Marijuana Resolution, Canadian Bar Association BC Branch;
5. Prime Minister the Honourable Mr. Justice Trudeau’s mandate letter to Mr. Goodale, the Minister of Public Safety and Emergency Preparedness;
6. Prime Minister the Honourable Mr. Justice Trudeau’s mandate letter to Dr. Philpott, the Minister of Health;
7. Prime Minister the Honourable Mr. Justice Trudeau’s mandate letter to Ms. Wilson- Raybould, the Minister of Justice and the Attorney General of Canada;
8. Government of Canada, Canada.ca/drugprevention pamphlet from pharmacy;
9. National Geographic, June 2015, “Weed the new science of marijuana” cover;
10. Special Newsweek Edition, “Weed Nation”, March 24, 2015 cover.