As Canada nears the likely legalization of marijuana for recreational use, a host of issues will impact on users for medical purposes. As a result of growing awareness, more claims from motor vehicle accident victims are likely to be made for this treatment.
Presently, the possession, distribution and production of marijuana is illegal. An exception to this applies to medicinal use. Effective August 24, 2016, the Federal Government replaced the Marihuana for Medical Purposes Regulations (MMPR) with the Access to Cannabis for Medical Purposes Regulations (ACMPR). This change resulted from a Federal Court of Appeal decision, Allard v. R., 2016 FC 236, that struck down the MMPR, which prevented licensed users from growing their own supply. The Court had ruled that those rules restricted the Charter rights of patients who needed access to the drug.
In T.N. v. Personal Insurance and Doyon v. Allstate Insurance, Arbitrators at FSCO accepted entitlement for medical marijuana. In this case, the Arbitrator allowed a claim where the applicant had purchased the drug at various compassion clinics or through unlicensed providers and was not able to furnish receipts. The Arbitrator approved ongoing entitlement at a rate of $600 per month for use of 4 grams per day at a rate of $5.00 per gram, based on information from Health Canada and the applicant’s reported use.
Acquiring Medical Marijuana
At present, an individual who requires marijuana for medical purposes must follow the following steps as set out by Health Canada.
1. Health Care Provider ConsultationAnyone considering medical cannabis treatments should begin by consulting with their health care provider. Physicians and nurse practitioners are qualified to prescribe the drug.
2. Medical DocumentationSecond, the health practitioner will complete a medical document which must include various details about the patient and practitioner. However, the reason for use is not required. The medical document must set out the daily amount of dried marijuana to be used. Health Canada has suggested that up to 3 grams of dried marijuana per day is often an optimal amount. While there is no maximum amount that can be authorized, a patient cannot possess more than the lesser of 150 grams or 30 times the daily amount. The medical document must also set out the period for which it is prescribed. The period of use cannot exceed one year.
3. Producer RegistrationOnce the medical document is completed, the patient can register with a licenced producer by providing the original medical document and any additional requirements requested by the producer. There are presently 21 authorized licensed producers of marijuana in Ontario. These entities have obtained a production license through Health Canada. Recently, Shoppers Drug Mart announced that it was applying for a license “strictly for the purposes of distributing medical marijuana.”
4. Approval and DeliveryOnce approved, the drug will be shipped directly to the address of the patient. The patient cannot obtain marijuana in person or at a store front. In recent months, many storefronts have opened in Toronto in anticipation of potential legalization of the product and a loosening of the restrictions in place for medicinal users. Toronto police conducted high-profile raids of these dispensaries and arrested many individuals in May and August this year. According to police, these shops have and continue to run without licences and in contravention of the law. While many advertise that they will only sell products to those with a licence, this practice is still contrary to the legislation.
There remain questions as to whether the restriction of only being able to obtain legal prescribed cannabis from a limited number of sources continues to infringe on patient’s rights in light of the Allard decision.
Once provided with a medical document, individuals have the alternative to grow their own marijuana. Under the new ACMPR, they can apply to register with Health Canada to grow their own plants based on a formula of their daily dose and the average yield of plants under different growing conditions.
Effect of Legalization on Public Health
Long-term medical, legal, and business effects of marijuana legalization remain clouded.
The Canadian government is undoubtedly taking notes on legalization in American states such as Colorado and Oregon. The National Post explored the subject in a recent national series titled O Cannabis. A recent study announced that sales figures of the recreational marijuana industry are expected to surpass that of alcohol. This $22.6-billion industry will create jobs, tax revenue, and – some argue – growing social problems.
MADD Canada estimates that there are 1,250 – 1,500 impairment-related deaths in this country every year. Canadian police agencies will need to anticipate the effect of legalization of the drug and prepare or adapt strategies to prevent impaired driving. With increased availability, increasing numbers of intoxicated drivers are a logical inevitability. It is unclear what degree of cannabis intoxication will be allowed behind the wheel. This is a tough topic in American jurisdictions that have legalized marijuana as well; there is limited information available as a result of a dearth of research into the subject.
Some studies have shown that marijuana can help to treat conditions including chronic pain, post-traumatic stress disorder and depression. Other studies raise concerns about respiratory issues, age requirements, and drug abuse. Evidence has indicated increased health risks involved with marijuana use by those under 25, the age at which the brain is fully matured. This will complicate the discussion around the legal age to purchase or consume the drug, especially given Canada’s drinking age of 18 and 19.
Issues for medical users remain as well. Will there be sufficient supply if recreational users are able to legally obtain marijuana? Will there be different costs or taxes for medical versus recreational users? Will an increase in the number of suppliers provide more options for medical users who are presently limited in product selection and location? Will insurance coverage cover this expense?
Introduction of recreational marijuana legislation is expected in spring 2017; many suspect the announcement will coincide with April 20th, or 4/20, the annual day of celebration for cannabis culture lovers. It was on this day in 2016 that Federal Health Minister Jane Philpott announced the spring target for legislation.
Until then, Canada holds its breath.
Note: This post originally appeared on Ontario Trial Lawyers Association Blog on November 03, 2016.