On Friday March 20th CSSDP traveled all the way to the Supreme Court of Canada to witness the very first medical marijuana case Rv.Smith. Otherwise known as the Extract Trial, Owen Smith has been going through the courts since he got caught in 2009 making cookies for the Victoria Cannabis Buyers Club. In 2011 his case made it to the B.C. Supreme Court which deemed the restriction to cannabis extracts unconstitutional, effectively making extracts legal in British Columbia. Appealed by the federal government, the case was now left to the Supreme Court of Canada to hopefully make a similar decision. After coming back from the UN and seeing how painfully slow policy change can be, it was incredibly refreshing to see how much change we’ve accomplished through the courts, even under the Conservative government in Canada. You could feel the excitement walking up to the Supreme Court, as Canada’s cannabis legends puffed and passed on the steps recording interviews and celebrating how far we’ve come.
It was 15 years ago in 2000 when an Ontario Court of Appeal ruling in R. v. Parker determined that the prohibition of cannabis was unconstitutional as it did not contain an exemption for medical use. In 2001 the Canadian Medical Marihuana Access Regulations were initiated, allowing Canadians to access cannabis to treat a variety of conditions. These regulations had three important components: they allowed Canadians to grow for themselves, designate a grower, or purchase through the government monopoly Prairie Plant Systems. Through a series of subsequent court challenges, it was clear the program was not serving the needs of patients, leaving the government to create a new access program. The new program, introduced in June 2013, took on a licensed ‘free market’ model allowing companies to apply to be Health Canada Licensed Producers. Although patients were part of Health Canada’s consultation, many felt patient voices were ignored by privatizing this new industry and removing patients rights to grow. This new program is being challenged by the Allard case, alongside the MMAR Coalition, who was successful at having an injunction granted, protecting patients and designated growers right to produce until the case is settled in the courts. Injunctions are instrumental in ensuring the rights of Canadians are not violated in the interm.
With all these changes in medical cannabis going through the courts, it felt important to be there to show solidarity with Owen Smith and his team. We also wanted to be there to share that experience and information with our members and the general public. Often, it is difficult to get clear information about these cases in the news, and the broken telephone of the mainstream media send out the wrong message to youth. So many young people reach out to us every day to ask if cannabis is legal in Canada! Unfortunately that is not the case (yet), or else we wouldn’t be continuously going to court to fight for our rights. As youth, it’s important for us to understand how far we have come and how much has been sacrificed to get where we are today. Cannabis Culture has achieved so much in Canada, but that doesn’t mean that we should stop fighting! CSSDP drove all the way to Ottawa to bear witness to this legendary court case which could change the face of drug policy in Canada.
At the Supreme Court we were all at the edge of our seats hearing the arguments from the Crown and defence. The Crown argued that these were untested products, and that there was already pharmaceutical access to cannabinoid extracts (synthetic and naturally derived) apart from the MMPR, including Cesamet (nabilone), Marinol (dronabinol) and Sativex. It was interesting that the Crown reinforced that there was no evidence to show that extracts were effective treatment, but tried to dismiss them by saying there was existing access. While the Crown attorney was correct in that there needs to be more investment in to cannabinoid research, the fact that the pharmaceutical industry is invested shows the true potential of cannabis extracts and the need to expand research. Throughout his arguments riddled with desperation, the Supreme Court judges were particularly snippy and dismissive towards the Crown attorney.
Smith’s lawyer Kirk Tousaw took a bold move and proposed removing cannabis extracts entirely from the CDSA Schedule II, and regulate them in the same way as natural health products in Canada. While removing cannabis from the CDSA would be a bold move, most natural health products do not have psychoactive properties. The Supreme Court judges seemed surprised by the proposed solution, as it was not brought up in pre-trial and would set a legal precedent. There is a huge body of evidence that shows that cannabis, like other psychoactive substances such as alcohol, could benefit greatly from a strict regulatory framework in order to improve public health. What is highly evident from comparing both arguments is that regulation cannot result in the restriction of access for patients. If regulation means access only through a limited amount of FDA approved pharmaceutical products, patients end up loosing the whole benefits of the diverse endocannabinoids. As such, regulation of cannabis as a natural health product decriminalizes both patients and health providers through ensuring access.
If the Supreme Court were to agree to remove cannabis from the CDSA this would be a radical first towards legalization from both medical and recreational use. If cannabis was 100% decriminalized and regulated federally as a natural product, this would pressure government to create provincial legalization to regulate it for adult use. The decision is certainly months away, so whether it will come before or after the election will certainly be controversial. In Canada, much of the drug policy gains are captured through the court system, so we will be on the edge of our seats until then! For more information on the trial, check out board member Jenna Valleriani’s coverage on the Lift Cannabis blog or watch the full trial online.