This week, Health Canada confounded both the press and public by announcing it will not appeal the October 7th Ontario Appellate Court decision that found its Marihuana Medical Access Regulations (MMAR) unconstitutional, while also stating it will not make all of the required court-ordered changes to the program.
In particular, Health Canada has chosen to maintain the limitations on the number of licensees a designated 3rd party cultivator can supply, as well as the number of licensed cultivators allowed to cultivate in one location, even though these limitations were struck down by the court.
The stated goal of the Appellate Court was to establish a licensing protocol and a positive legal climate for Canada’s network of compassion clubs. The court decision reads:
" ...a central component of the Government's case is that there is an established part of the black market, which has historically provided a safe source of marihuana to those with the medical need for it, and that there is therefore no supply issue. The Government says that these "unlicensed suppliers" should continue to serve as the source of supply for those with a medical exemption. Since our remedy in effect simply clears the way for a licensing of these suppliers, the Government cannot be heard to argue that our remedy is unworkable."
By contradicting both the wording and spirit of the Appellate Court ruling, Health Canada has once again ignored a major court decision, and thus continues to oversee a program of questionable constitutionality.
Health Canada has defended this decision by stating that it must “maintain these limitations to minimize the risk of diversion and to allow Canada to continue to meet its international obligations”. Canadians for Safe Access director Philippe Lucas disagrees. “This is a lie. Our international obligations neither trump the Appellate Court’s orders to changes the program, nor do they require Health Canada to force critically and chronically ill Canadians to purchase medicine from the black market.”
The court’s order was effective immediately, with the Appellate Judges specifically pointing to the violation of rights that would occur should this decision be delayed or suspended: " ...To suspend our remedy if they may die in the meantime is, in our view, inconsistent with fundamental Charter values." In spite of this, Health Canada has failed to enact the changes ordered by this court.
"Sadly, Health Canada has turned what should be an important health issue into a court matter," says Alison Myrden, one of the Hitzig complainants and a legal user of cannabis. "Their inaction is literally putting lives at risk."
Canadians for Safe Access also questions why Health Canada is prolonging the suffering of some of Canada’s sickest citizens.
“How can the federal government expect Canadians to respect the rule of law when Health Canada continues to act in bad faith and to ignore orders from our highest courts?” asks Philippe Lucas, Director of Canadians for Safe Access. “Health Canada’s inaction and continued contempt for our courts is inexcusable, and it needs to be addressed right now. Their disregard for Canada’s critically and chronically ill is causing untold suffering, and its time for Minister McLellan and the Office of Cannabis Medical Access to be held accountable for their incompetence and unacceptable callousness in dealing with this important health issue.”
According to Tim Meehan, communications director of Ontario Consumers for Safe Access to Recreational Cannabis (OCSARC). “since Health Canada has defied the order of the Ontario Court of Appeal by not allowing a grower to supply multiple patients, as ordered, the MMAR is unconstitutional." "Because it's unconstitutional, that means that according to the Parker decision by the same court in 2000, the possession of marijuana law is dead once again."
Canadians for Safe Access (www.safeaccess.ca) is a non-profit medicinal cannabis patients rights group.
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