Supreme Court of Canada Ruling Expands Medical Marijuana To Include Oils, Teas, Brownies And Other Forms

The Conservative Federal Government and The Supreme Court of Canada (SCC) are at odds over medical marijuana. On June 11, the Canadian high court ruled that the government’s narrow definition of legal medical marijuana for Canada’s more than 40,000 licensed users as only pertaining to dried herb is unconstitutional.

In a unanimous decision underscored by all seven judges’ names appearing on the written ruling, the SCC justices declared that prohibiting people with legitimate need for medical marijuana from employing delivery methods that avoid potential harm from smoking or vaporizing violates patients’ constitutional right to liberty of the person in two ways. First, the prohibition deprives medical “marihuana” users of their liberty by imposing a threat of imprisonment for using other cannabis forms than dried weed. Secondly, the court determined that the government’s stipulation limits the liberty of medical users by foreclosing reasonable medical choices through threat of criminal prosecution, and that forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one infringes security of the person.

The SCC determined in its ruling in R. v. Smith, 2015 SCC 34 that these limits are contrary to the principles of fundamental justice because they are arbitrary, with effects of the prohibition contradicting the objective of protecting Canadians’ health and safety, and that evidence amply supports the lower court trial judge’s conclusion that inhaling marijuana smoke can present health risks, and is a less effective medium for delivery of therapeutic cannabinoids in marijuana for some medical conditions than other forms of cannabis, and that effects of the prohibition contradict the objective of protecting health and safety. In other words, there is no reasonable connection between prohibition of non dried forms of medical marihuana and the health and safety of patients who qualify for legal access.

In other words, the justices say a disconnect between prohibition of non-dried forms of medical marijuana and health and its purported object of protecting safety and security of patients who qualify for legal access to medical marijuana renders the prohibition arbitrary under the Constitution’s Charter of Rights and Freedoms, and frustrates the Charter requirement that limiting a right must be rationally connected to a pressing objective, which in this case it is not. The court noted: “There are cases where alternative forms of cannabis will be ‘reasonably required’ for the treatment of serious illnesses. In our view, in those circumstances, the criminalization of access to the treatment in question infringes liberty and security of the person.”

AmbroseRonaCPCIn the opposing corner, Canada’s federal Health Minister Rona Ambrose declared in response that despite recent court rulings in favour of the use of medical marijuana, her government maintains that cannabis has never been proven safe and effective as a medicine.

“Marijuana has never gone through the regulatory approval process at Health Canada, which requires rigorous safety reviews and clinical trials with scientific evidence,” Ms. Ambrose said at a press conference Thursday, “So frankly, I’m outraged by the Supreme Court.”

The minister maintained that R. v. Smith and prior court rulings that permit use of medical marijuana give Canadians the impression that the drug has been shown to be effective, when in her estimation it has not. “We have this message that normalizes a drug where there is no clear clinical evidence that it is, quote-unquote, a medicine.” she insisted. That contention ignores historical evidence of Cannabis being used medicinally as far back as 2737 BC, and that it is one of 50 basic herbs used in traditional Chinese medicine, prescribed for a broad range of indications.

More currently, Ms. Ambrose might consider results of a 2014 survey of 1,339 fibromyalgia patients conducted by the National Pain Foundation and National Pain Report. According to survey respondents (median demographic female, aged 55), medical marijuana is in their experience far more effective for treating fibromyalgia symptoms of than any of the only three prescription drugs – Eli Lilly’s Cymbalta, Pfizer’s Lyrica, and Forest Laboratories’ Savella — approved by the U.S. Food and Drug Administration to treat the disorder. Most of those surveyed who’d tried these prescription medications said they didn’t work for them.

Only ten percent who’d taken Lyrica (Pregabalin) rated it “very effective,” 61 percent said it did not work at all, and 29 percent said it “helps a little.”

Sixty percent of those who tried Cymbalta (Duloxetine) drug said it did not work for them, with only eight percent rating it “very effective,” and 32 percent said it helps a little.

Asked to rate effectiveness of Forest Laboratories’ Savella (Milnacipran), 68 percent of respondents who’d tried the drug said it didn’t work, 10 percent said it was very effective, and 22 percent said it helps a little.

On the other hand, while only 29 percent of the pain survey’s respondents reported having tried medical marijuana, those who did said it was far more effective than any of the FDA-approved drugs, with sixty-two percent who have tried cannabis rating it “very effective” at treating their fibromyalgia symptoms. Thirty-three percent said it helped a little and only five percent said it did not help at all.

In a previous statement, Ms. Ambrose was quoted asserting: “Marijuana is not a medicine, it is not approved as a medicine by Health Canada, nor has it gone through any of the typical rigorous clinical trials that are necessary for medicine to be approved.”

More than a bit disingenuous on the minister’s part, since her own government cut funding for medical marijuana research even while some researchers in the U.S. and elsewhere are finding a scientific basis for chemically diverse cannabis compounds’ effectiveness in alleviating symptoms of a variety of diseases, and biotech firms are responding with development of novel marijuana-based product candidates designed to allow therapeutic cannabinoids to home in on the body’s nervous and immune systems without inducing the sort of undesirable side-effects typically associated with currently available medications.

Unfortunately, because of regulatory obstacles thrown up by both the Canadian and U.S. governments, it’s difficult for scientists to obtain funding for medical marijuana research, and to procure the herb itself for experimentation, due to its arbitrary classification as a Schedule 1 drug by the U.S. Drug Enforcement Administration — erroneously declared a “narcotic” (a term properly referring to opiates like heroin, morphine and other opium derivatives), arbitrarily lumped in with dangerous hard drugs like heroin, LSD, Ecstasy and others deemed to cause severe psychological or physical dependence.

In a letter to Vancouver Mayor Gregor Robertson, obtained and posted to the Internet by the Vancouver Sun newspaper, Ms. Ambrose affirms that her government implemented the “Marihuana for Medical Purposes Regulations” act in 2013 with “the aim of treating dried marijuana as much as possible like other narcotics used for medical purposes.”

In fact, marijuana has relatively low physical addiction potential, and unlike with actual narcotics, there is no record of anyone ever dying from a marijuana overdose. A small percentage of individuals develop “psychological dependence,” but evidence does not support the notion that marijuana use leads to hard drug addiction. The main problems associated with marijuana arguably derive from the fact that it is illegal.

Despite legal obstacles, a growing body of medical research on Cannabis indicates vast potential for its medicinal use. For example, psychiatrist Tod H. Mikuriya, who helped develop the state ballot Proposition 215 that legalized medical marijuana in California, discovered evidence that symptoms of over 200 ailments can be treated with cannabis. Before categorically declaring marijuana “not a medicine” Ms. Ambrose would’ve been well-advised to reflect on even the U.S. government’s own National Cancer Institute agreeing with cannabis use for treating chemotherapy side effects, preventing nausea and vomiting, increasing appetite, relieving pain, and improving sleep. Or for that matter the Supreme Court’s observation that “even the Health Canada materials filed by the Crown’s expert witness indicated that oral ingestion of cannabis may be appropriate or beneficial for certain conditions.”

Other research has found, to cite a few examples, that Cannabis is one of the most effective agents for treating neuropathic pain such as pain associated with Multiple Sclerosis and rheumatoid arthritis pain. Indications that the cannabinoid THC may slow progression of Alzheimer’s disease, and that cannabinoids can ease inflammatory bowel disease symtoms, and block the spread of breast cancer by downregulating a gene called ID1.

Ms. Ambrose has been cited contending that “legitimizing and normalizing the use and sale of marijuana can only have one effect: increasing marijuana use and addiction,” a statement that exposes the Conservative government’s philosophical opposition to anyone — even people suffering brutal effects of serious illness — using any sort of cannabis for any reason.

Note well that what we’re specifically discussing is medical marijuana’s availability to persons with doctors’ prescriptions. However, like many ideological medical marijuana opponents, she evidently regards the herb’s therapeutic qualities, and relief it has provided to many sufferers of painful and debilitating illness, as of little consequence — an egregious inconvenience thrust on the government by “Canadian courts [that] have required the government to allow access to marijuana when authorized by a physician.”

The Canadian Medical Association (CMA), the College of Family Physicians of Canada, and the Royal College of Physicians and Surgeons all reportedly rejected overtures from the Conservative government to endorse and include their logos in a mostly anti-marijuana TV ad blitz last year, observing that the issue had become “too politicized.” Indeed, what appears to be happening is that with an October 19 federal election looming, the 10-year-old Conservative government is bent on shoring up support from the substantial proportion of its core constituency that buys into hysterical 1930’s-style “reefer madness” rhetoric, and dismisses legalized medical marijuana as just a way for stoners to circumvent laws prohibiting recreational marijuana use.

In fact, while the cannabinoid tetrahydrocannabinol (THC), marijuana’s main psychoactive constituent, does have substantial crossover properties as a therapeutic agent, among some 80 other cannabinoids found in Cannabis plants, Cannabidiol (CBD), which has been used for treatment of inflammation-related pain, headaches, neuropathic pain, muscle soreness, spinal injury, fibromyalgia, and more, is non-psychoactive (ie: can’t make you high), making it more clinically appealing as a medicine.

CMA executive Dr. Louis Hugo Francescutti told reporters at an Ottawa press conference last summer that his organization would welome scientists finding a way to prescribe medical marijuana using a better delivery vehicle than smoke, noting: ‘If we could deliver it through a cookie or a milkshake or a pill or a liquid, and we know that it works, well we would welcome it with open arms because its another tool we can use.”

Prior to the June 11 SCC ruling, Canadian medical marijuana users have been arbitrarily prohibited from employing any other means of delivery than smoking or vaporizing dry weed, under penalty of prosecution and potentially lengthy prison sentences. That would include people like Alex Repetski, who has been treating his three-year-old daughter with illegal cannabinidiol oil for epileptic seizures for the last nine months. Teaching a toddler to smoke would’ve been grossly irresponsible to say the least, but eight legal anti-epileptic pharmaceutical medications had failed to control the little girl’s seizures. Mr. Repetski told CTV News that two days after starting the cannabis oil therapy last November, his daughter had one minor seizure, and since then none, and “her quality of life is 1,000 per cent increased.”

Some people think that what’s “outrageous” is governments increasing the burden of pain and hardship for sick people and families like the Repetskis by prohibiting a medicine that’s anecdotally acclaimed as effective for treating an array of disorders — some highly intractable — in service of what who appears to be an ideologically-driven irrational prejudice.

CTV News
CBC News
Canadian Press
Supreme Court of Canada R. v. Smith, 2015 SCC 34
National Pain Foundation
National Pain Report

Image Credit:
Parliament of Canada