Canada: January 2013 Newsletter

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Canada: January 2013 Newsletter

Greetings
Cannabis Law Reform Community,

As we begin 2013, there is a lot for NORML
Canada to be excited about. We hope to carry forward the international
momentum gathered in 2012, in our continued mission to reform Canadian
cannabis law. Although 2012 had its set-backs in Canada, specifically the
implementation of increased penalties for cannabis offences, public
support for legal reform is on the rise.

In this newsletter, you
will find information on three of the key cannabis law reform issues for
2013:

  1. The newly proposed
    medical cannabis regulations
  2. The legal challenge to
    mandatory minimum sentencing launched by the Quebec Bar
    Association
  3. The cannabis legalization
    position being developed by the Liberal Party of Canada

 

The Marihuana for Medical Purposes Regulations
(MMPR)

On December 15, 2012 the Government of Canada
published its proposed
Marihuana for Medical Purposes
Regulations
(MMPR) in
the Canada Gazette Volume I. This marks the first
public step in the Government’s plan to replace the Marihuana
Medical Access Regulations
(MMAR). In addition to the proposed
regulations, the Government of Canada has published an accompanying
Regulatory Impact Statement detailing its
justification for the new regulations. Interested persons will have until
February 28, 2013 to submit comments or
concerns about the proposed regulations to Health Canada for
consideration.

Creating a Regulated Market for Medical Cannabis

The
most notable change contained in the MMPR is the
overhaul of medical cannabis supply. Under the MMPR,
patients will no longer be able to produce their own medicine, nor will
they be able to designate another to do so. Instead, commercial entities
will be licensed to produce and supply medicine to patients.

On its face, this change seems positive: fewer producers is said
to reduce the ?diversion? of medicine to the black market. Increased
quality, safety and packaging standards will be implemented to improve
medical efficacy. There are also new provisions to provide cannabis in
clinical settings, as well as special considerations for homeless
patients. These are positive changes in some regards, and are seen by some
as a step to improve the legitimacy and efficacy of medical cannabis. Some
even suggest this may be a key step in getting cannabis covered by public
and/or private health insurers, which would be a great change for patients
and suppliers.

However, for some patients, the new regulations may
pose severe negative consequences. The primary complaint of many patients
is the cost of medical cannabis under the MMPR. The
MMPR contains no cost-control or consumer protection
with regards to pricing, and Government cost estimates reflect black
market prices. This will leave patients, many of whom live on
fixed-income, to face tough financial choices when it comes time to decide
how much medicine they can afford to use.

The second main
complaint comes from efficacy. Many medical cannabis users indicate
specific strains, growing techniques and harvesting procedures play a
large role in the efficacy of medical cannabis. There is concern the new
producers will not be able to provide the level of service patients have
been providing themselves with under the MMAR.
The MMPR does allow current licensed producers to
give strains to the new commercial producers. In addition to not
recognizing the intellectual property created by current producers in
their genetics and growing techniques, there is no guarantee the new
producers will be able to produce medicine of the quality some patients
are accustomed to, thus leaving patients with ineffective, inadequate
medicine.

Third, many claim the regulatory requirements imposed on
producers will have the effect of only allowing the affluent to gain
production licenses. This may have the effect of denying thousands of
Canadians the opportunity to participate in a regulated cannabis industry.
This could have unintended consequences, as the cannabis community may
lose the expertise and experience of those excluded from economic
participation.

Details on how to become part of the formal consultation
process can be found in the Taking Action
section below.

Interplay with Recent
Legal Challenges

In recent years, there have been two notable legal
challenges to the MMAR: Mr. Paul Lewin successfully
challenged the unconstitutionality of the MMAR due
to the lack of physician support in the case of
R v Mernagh, and Mr. Kirk Tousaw convinced a judge to strike
the word ?dried? from the MMAR in
R v Smith. To many patients, these decisions indicated a
step forward in improving access to medical cannabis, and more flexibility
in how patients decide to use cannabis.

However, the
MMPR seems to only deal, superficially, with the
ruling in Mernagh, and wholly ignores the decision
in the Smith case. In Smith,
the judge found an increased medical benefit could be derived from
processing cannabis into extracts and other non-smoked preparations. The
Government of Canada has, once again, limited patients to ?dried
marihuana? without a clear explanation of why the decision in
Smith was not followed.

The
MMPR seems to have accepted the finding in
Mernagh that patients are facing difficulty in
finding a doctor willing to sign the MMAR
declaration. To remedy this, ?health care practitioners? will be
authorized to issue the medical documentation required by the
MMPR. However, this will only occur where provinces
endow nurse practitioners with the power to sign such documentation.
Therefore, while this could potentially increase access to medical
cannabis, it is speculated this represents the Government of Canada’s
effort to pass the buck to provincial governments. Furthermore, given the
evidence in Mernagh regarding the lack of support
for medical cannabis in the medical community, it is possible nurse
practitioners authorized to sign medical documents may hold views about
medical cannabis similar to their physician
colleagues.

Taking
Action

While NORML Canada is still considering its
official position on the MMPR, we strongly believe
everyone with an interest in cannabis law reform ought to submit their
views to the Minister of Health as part of the consultation process.
This is a rare opportunity for Canadians to interact
with our Government regarding cannabis policy. Participation will
demonstrate the breadth of support, or opposition, to the
MMPR, as well as focus attention on the various
issues patients, caregivers and supporters may face as the
MMAR transitions to the
MMPR.

We encourage those for and against the
proposed MMPR to make your voice heard and submit
your thoughts to Health Canada as part of the formal consultation
process.

Submissions regarding the
MMPR can be submitted to the Bureau of Medical
Marihuana Regulatory Reform at any time before February 28, 2013.
Submissions must be in writing, and
must include reference to the December 15, 2012
publication of the proposed regulations in the Canada Gazette Pt
I
.

(
More info)

Submissions may be made via mail, fax
(613-941-7240) or email (
consultations-marihuana@hc-sc.gc.ca).

Mailed submissions are to be addressed
to:

 

Medical Marihuana Regulatory
Reform
Controlled Substances and Tobacco Directorate
Healthy
Environments and Consumer Safety Branch
Health Canada
Address
Locator: AL3503D
Ottawa, Ontario  K1A
0K9

In addition to
formal submissions to Health Canada regarding the proposed
MMPR, there are many patient-initiatives, including
public demonstrations and legal action.
Fight the
MMPR
is organizing a national day
of action on February 21, 2013 at multiple
locations across the country.

The MMPR PPL/DPL Coalition Against
Repeal is a patient led organization, committed to using legal actions to
prevent patients from losing the option to produce their own medical
cannabis. The Coalition intends to utilize the expertise of NORML Canada’s
President, John Conroy, to explore all legal options available to patients
negatively impacted by the MMPR. Mr. Conroy may also
be contacted directly.


 

Barreau Du Quebec’s Constitutional Challenge

The Barreau du Quebec (Quebec Bar Association) has
launched a constitutional challenge in response to the Government of
Canada’s new mandatory minimum sentences (MMS). New minimum mandatory
minimum sentencing provisions are now attached to many cannabis offences.
The QBA’s challenge alleges the new sentencing provisions violate sections
7, 12 and 15 of the Canadian Charter of Rights and Freedoms. It is also
alleged that the laws undermine judicial independence, and thereby,
violate the constitutional principle of separation of
powers.

Section 7 of the Charter protects Canadians from the
deprivations of life, liberty and security of the person caused by the
State, unless the deprivation is made in accordance with the principles of
fundamental justice. The principles of fundamental justice require
deprivations of life, liberty and security of the person be the result of
non-arbitrary laws, which are a proportionate response to the mischief
Parliament is trying to stop.

A restriction on liberty is arbitrary
when the State uses excessive means that are not reasonable, or go beyond
what is necessary to achieve the objectives of the law. The applicant
points out there is no evidence of minimum sentences being necessary to
achieve the stated purpose of the criminal law, and are not reasonable in
relation to the threat posed to society by many offenders caught by
mandatory minimum sentencing. Therefore, those who are sentenced as a
result of mandatory minimum sentence are subject to arbitrary deprivations
of liberty, which are not in accordance with the principles of fundamental
justice.

The new laws are further alleged to violate the principle
of proportionality, which violates the principles of fundamental justice.
Proportionality requires a sentence imposed be broadly commensurate with
the gravity of the offence committed and the moral blameworthiness of the
offender. Judges have already established a range of sentences for
offences, which the judiciary considers to be proportionate to the
offence. If a judge is required to disregard that range, the judge will,
in effect, be breaching the important principle of proportionality. In
other words, the law takes away liberty, but not in accordance with the
principles of fundamental justice.

It is alleged the new laws are a
violation of section 15 of the Charter, which outlines equality, because
they ignore provisions in the Criminal Code which are established to
remedy violations of the right to equality against first nations. The
withdrawal of a measure designed to achieve equality or to combat
discrimination can itself be a section. 15 violation. The new sentencing
rules are further said to violate section 12 of the Charter, which
protects against cruel and unusual punishment.

Judicial
independence is essential in maintaining the role of courts as the
protector of the Constitution, and the fundamental values it embodies. The
judiciary’s role as defenders of the constitution requires them to be
completely separate from the legislature and the executive in terms of
powers and functions. This separation of powers is a key requirement of
our Constitution, and provides checks and balances on government action.
The legislature should not be enacting laws obstructing a judge’s ability
to impose a sentence proportionate to the gravity of the offence. When the
legislature enacts laws to inhibit judicial independence and discretion,
the checks and balances in our system are eroded.


 

The Liberals Of Canada (BC) Release Legalization Policy
Paper

One year ago, the Young Liberals of Canada
successfully convinced delegates at the Liberal?s biennial convention to
vote in favour of a
motion proposing to legalize and regulate
cannabis
. Their success is the
first step in the Liberal?s internal procedure to have cannabis reform
become a part of the party?s platform in the 2015 electoral campaign.
Unfortunately, the successful motion at the biennial convention does not
ensure federal Liberals will pursue cannabis reform in the next
election.

Following the success of the Young
Liberals, the Liberal Party of British Columbia has produced and presented
a draft policy paper outlining their position on cannabis policy reform.
The white paper sets out a plan to legalize, regulate and tax cannabis in
Canada. Additionally, Liberals propose to use revenue to invest in the
further examination of health consequences in relation to cannabis use,
particularly research into potential mental health issues for youth.
Finally, the Liberals propose to extend amnesty to Canadians convicted of
?simple or minimal? marijuana possession.

?After the resolution on
marijuana today, there is going to be a group of even happier people in
the Liberal Party… If you want to be part of a free-thinking,
innovative, thoughtful, pragmatic, hopeful, positive, happy people, come
and join the Liberal Party of Canada.?

?? Interim Liberal Party of
Canada Leader Bob Rae, January 15, 2012

The policy paper, titled ?Legalization of Marijuana: Answering Questions and
Developing a Framework
? (PDF),
sets out to answer questions regarding reforming cannabis law.

Questions fall into five categories:

  1. policy
  2. international
    response
  3. legal
  4. public
    health
  5. logistics.

The responses are based on research by the Liberals
of BC, current Canadian law, and the legal reforms in Colorado and
Washington State.

The policy paper is a
must-read for cannabis law reform
advocates.

The paper sets out clear answers to
difficult questions, such as why legalization is preferable to
decriminalization, and the likely response of our international treaty
partners.

Furthermore, the paper deals with some of
the practical issues of reform: age of use,
how to deal with minors, and
limits on consumption and/or
possession.

Although it is not a certainty, the Liberal Party
of Canada will run on a pro-reform platform in 2015, signs are certainly
positive. On their website, the Liberal Party of Canada mentions multiple
times that Prime Minister Harper’s agenda to imprison petty cannabis
offenders is a poor policy decision. Furthermore, while cannabis reform
has certainly not been a focal point of the Liberal’s leadership race,
multiple candidates have expressed a need to reform our cannabis
policies.

Regardless of your views of this particular proposal or
your political leanings, one must applaud the efforts of reformers within
the Liberal party for taking a formal approach to politicizing cannabis
policy. While it is far from certain this campaign will result in positive
reforms, what is certain is that anything that promotes public discussion
and education about cannabis is a step in the right
direction.

Visit the The Young Liberals of Canada’s
Legalize
It!
webpage.

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Thank you for your support.

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norml.ca

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