Response to MMAR

Bruce Erickson,
Office of Controlled Substances,
Department of Health,
Address Locator 3503D,
Ottawa, Ontario,
K1A 1B9;

May 6, 2001

Mr. Erickson,

The public has been invited to respond to the Marihuana Medical Access Regulations (MMAR) published in the Canada Gazette, Part I, on April 7, 2001.

The government feels the MMAR is an appropriate and efficient response to address concerns raised in the Parker decision about the process currently used under section 56 of the CDSA by attempting to meet the following criteria :

1) meet the mandatory requirements of all international drug control Conventions, to the extent possible, in consideration of the Canadian Charter of Rights and Freedoms;

2) be developed and implemented by July 31, 2001;

3) be clear and easy to implement, administer and enforce;

4) not unduly restrict the availability of marihuana to patients who may receive health benefits from its use; and

5) minimize any increase in regulatory burden on patients, medical practitioners, medical licensing authorities, and enforcement agencies.

While the government may be successful in fulfilling 1, 2 and 3 which are partial to the regulators; it fails on both counts 4 and 5 which concern the people who will supposedly benefit. New court challenges will force it to succumb to judicial review and it will ultimately be struck down, as it does not appear to meet the provisions of the Parker decision in relation to what was established as fundamental human rights for the medicinal use of marijuana.

The government’s concern about meeting International Treaties is highly suspect, as it is well known the Netherlands openly sells cannabis through coffeehouses to the general adult public, and other countries have generally decriminalized while maintaining their obligations to the same treaties

Of immediate concern are the last two sets of criteria:

4) not unduly restrict the availability of marihuana to patients who may receive health benefits from its use;

5) minimize any increase in regulatory burden on patients, medical practitioners, medical licensing authorities, and enforcement agencies.

By it’s own admission, “…there will be some increase in administrative activity for medical practitioners resulting from the necessity for all authorization applications to be prepared and submitted by a medical practitioner on behalf of the patient.” In most cases, statements must also be supplied by a medical specialist.

It has also been pointed out by numerous, knowledgeable sources such as the B.C. Compassion Society and the Vancouver Island Compassion Society, that the increased restrictions and obstacles imposed by the MMAR will impede access and prevent the majority of patients from obtaining legal cannabis.

No drug has ever been regulated so severely that neither doctor or patient will want to work within the authorized procedures, especially when by default, the patient has been self-medicating through an already existing, more obtainable source such as growing their own, the blackmarket, or compassion clubs. In context of the relatively harmless nature of cannabis, no medical explanation can adequately justify the proposed structure.

After taking into consideration all matter of concerns raised by stakeholders within the cannabis community, it would appear the proposed structure will not be in accordance with legal precedents.

Legal Provision considerations

In writing the Parker decision, Judge Rosenthal relied heavily on the legal precedents set out in the Morgentaler decision because many of the same circumstances exist. One of the main reasons the abortion law was struck down was a number of procedural deficiencies were identified that were not in accordance with the principles of fundamental justice.

The conclusion was, ” that while Parliament must be given latitude to design an appropriate procedural structure, if that structure is “so manifestly unfair, having regard to the decisions it is called upon to make, as to violate the principles of fundamental justice” [emphasis added by Dickson C.J.C.], that structure must be struck down. This was the problem with the therapeutic abortion provisions of the Code. It contained so many potential barriers to its own operation that “the defence it creates will in many circumstances be practically unavailable to women who would prima facie qualify for the defence, or at least would force such women to travel great distances at substantial expense and inconvenience in order to benefit from a defence that is held out to be generally available”. [115]

It was established that, “An administrative structure made up of unnecessary rules, which result in an additional risk to the health of the person, is manifestly unfair and does not conform to the principles of fundamental justice.” [117](v)

This same ruling challenges the validity of the MMAR as it stands now. Another consideration to some degree, is an important Supreme Court judgment that will be handed down most likely in early 2002, which could soon make this an effort in futility.

Until then, the government could conceivably approach the regulations from the other end of the medicinal spectrum, by being minimalist in bureaucracy, severity and cost, as a prototype for all citizens who will eventually have this unknown right restored.


Doctors generally know nothing about this ‘new drug’ they are to prescribe, and the subjective knowledge of the patient usually greatly exceeds the physician’s medical knowledge by the time it’s use as a treatment is being discussed. This unusual set of circumstances, along with the stigma attached to cannabis from within the medical community and the government, combined with the overall repressive, burdensome nature of the regulations, are responsible for an unworkable system proposed in the MMAR.

Most importantly, it is not so much a case of people demanding access to marihauna, which the government claims is the main reason for these regulations, but people are demanding overall control over their own bodies and freedom of choice in medicine, as outlined in the Charter of Rights and Freedoms. These crucial elements are the crux behind the demand for access to marihauna, and it is well known to the government that the demand extends beyond medical users to all adults who wish access to natural health products.

Hence, forcing both doctors and patients to submit to an authoritative, intimidating process, will not accomplish the intended objective of the patient wishing to use cannabis in a legal capacity. Consulting other practitioners such as homeopaths, herbalists, and Traditional Chinese Medicine practitioners, among others, who are knowledgeable and resourceful about herbs and could recommend cannabis, would be a more practical solution.

Therefore, a whole new regulatory approach must be fabricated in order to comply with the Parker decision and conform to the principles of fundamental justice, in addition to international treaties and the governments five sets of criteria.

The most effective, appropriate regulatory body designed to regulate marijuana is the Office of Natural Health Products (ONHP). Cannabis has no properties which would exclude it from the definition of a natural health product according to the possible criteria being developed, and there is enough leeway in Section 55, 56 or 60 of the CDSA to reclassify cannabis more appropriately.

Although most of the regulatory framework being developed for NHP’s is around manufactured products for commercial distribution, it does address serious, glaring omissions in the MMAR, namely, Good Manufacturing Practices (GMP’s). Information on GMP’s for manufacturing cannabis, from growing, harvesting and storing must be available to interested parties.

The ONHP acknowledges that the GMP guidelines need to be reflective of the different nature of natural health products. It also acknowledges they need to be developed in collaboration with industry because experience is an important factor. In this case, the cannabis community would aid in designing specifications for safety and quality of cannabis, growing techniques, harvesting and storage procedures, along with recommended strain selection, applications, and methods of ingestion.

Please implement a compassionate MMAR that will not inflict any further hardship on already suffering people and their families, that will recognize the right of individual sovereignty, and that will save valuable time and expense to all concerned.

Debra Harper