As the application rate skyrockets, Canadian cannabis patients who want to home grow their own medical marijuana have been going to court in droves, citing delays in the permitting system.
Health Canada, which issues the permits, hired 30 new staff in response to ballooning permit applications, which rose 101 per cent over the last six months of 2017.
Without a production permit under the current system, patients become liable to fine and imprisonment if they don’t destroy their cannabis.
The department also made a policy change last month to get rid of a backdating issue from when a doctor initially prescribes cannabis as a medication.
Boilerplate pot challenges
In late January, a Federal Court judge had called on Health Canada to review its processing timelines for renewals of medical cannabis permits that allow patients to grow their own bud at home.
In a ruling on Johnsgaard v. Canada – one of a number of similar cases before the court where a medical cannabis patient asked for “emergency relief,” alleging processing delays – Judge Henry Brown prodded the regulator to look into its processing speed.
“The potential consequences of delay cause me to suggest that Health Canada review any existing processing timelines and mechanisms to see that they are met,” he wrote. “In addition, Health Canada might consider giving notice of expected delays.”
Brown also suggested permit renewals should be done through administrative work, not court cases.
“Rights having been declared, I suggest they are best afforded through administrative procedures and should not require excessive judicial intervention,” he wrote.
The main case about application delays is still being reviewed but Brown dismissed the Johnsgaard case without costs because the permit was eventually renewed.
More than 28 Canadian cannabis patients from across the country had filed similar, if nearly identical, Federal Court claims based off of a template downloaded from a website, alleging processing delays are an infringement on their Charter rights.
A number of the cases have been declared moot, however, since the respective patients received their permit renewals after they pursued legal action.
Health Canada said in a statement last week there are 13 active cases before the court concerning delays. More claims have been filed since then.
Judge Brown is handling the cases in collective case management through Allan J. Harris v. Her Majesty the Queen, a case which has been proceeding through the court since September last year. Harris’ statement of claim argues processing time has been lagging because staff have been “swamped by many applications.”
The document argues that “over five months to key in the information to the computer is excessive,” and not having enough staff is a “lame excuse to delay the processing of medicinal permits.”
The defence argues the claim “fails to disclose a reasonable cause of action” and should be struck because it is “scandalous, frivolous and vexatious.”
“The pleadings do not contain any facts concerning the plaintiff’s personal circumstances or capable of supporting the constitutional violations alleged,” the Crown wrote in its statement of defence, adding that Harris “fails to explain why he requires [a] personal production permit and cannot instead purchase cannabis from a Licensed Producer.”
Applications for homegrown medical cannabis surged last year
Behind the scenes, those homegrown medical pot permit applications and renewals have been increasing exponentially, straining the system. The number of active registrations doubled in the last half of 2017, increasing sharply from 6,880 at the end of June to 13,829 by December.
Health Canada said it “aims to process registrations as quickly as possible,” but processing times can “take anywhere from eight to 16 weeks, depending on the complexity of the application.”
“The time to review an application and issue a registration certificate is highly dependent upon the number of applications received, and the quality or the completeness of the applications,” spokesperson Tammy Jarbeau said in an email.
“It also depends on the response time of applicants or health care practitioners, who may be contacted by our client service representatives to verify information or to request additional clarification. The department must also verify that an original medical document accompanies the application and that the health care practitioner is in good standing with their province or territory’s medical regulatory authority.”
Since home growing was reinstated for patients in August 2016, Health Canada processed almost 40,000 applications.
Jarbeau said processing times are “improving” after bringing on more staff, and the department is looking at “other ways to process applications more efficiently, to better inform the public of what needs to accompany applications, and to develop effective performance targets.”
Health Canada changed a processing policy in March to remove prescription back-dating issues after hearing from patients “that the time it takes to process an application can reduce the period of time available to produce a limited amount of cannabis for medical purposes,” according to a Health Canada document.
The same document, which gets sent to patients, tells them processing time can take “in excess of eight weeks to process an application and issue a registration.”
According to an email from the department of Justice’s litigation sector, the policy change will “ensure that processing times do not shorten the length of time the registration certificate is valid and allows Health Canada to issue registration certificates that will last a full year.”
It argues that one court case in particular, which alleged delays arising from permit backdating, should be considered moot.
Cannabis regime change: how the government got here
The current medical marijuana regime, brought about under the Liberal government, is called the Access to Cannabis for Medical Purposes Regulations (ACMPR). It came into place in 2016 as a short-term plan to respond to a federal court ruling that found banning home growing had infringed on patients’ section 7 Charter rights, affecting the affordability and access to medical cannabis for some. The Liberals decided not to appeal.
Originally, when the medical cannabis system was established federally in 2001, the regulations allowed for home growing. In late March 2014, the Conservative government removed the option, pointing to concerns over illicit diversion and home safety, including the potential for mould and fire hazards, and mounting administrative costs.
In 2013, Health Canada said in a document accompanying the policy changes that “rapid growth in the number of authorized users” had “significant implications” for running the program, including long processing times and rising costs. It also projected applications to continue to increase. That year, there were nearly 30,000 patients registered to use medical cannabis, where more than three quarters had home growing licenses.
Three years later, when the current regime was implemented in 2016, Health Canada expected administrative costs to be significantly less than the original system – working out to roughly $3.4 million a year after 2016/17 – and suggested the rate of increases in applications would be slower.
As the Liberal government legalizes cannabis, it plans to keep the medical cannabis system in place – at least in the short term, despite pleas from the Canadian Medical Association to merge them into one.
The new law will allow for anyone over the age of 18 to grow up to four plants per household. But the medical and recreational regimes will continue to differ in who can legally possess cannabis, and how much they can buy or grow.
The government’s consulting ‘Task Force’ recommended that Ottawa monitor and evaluate patients’ right to reasonable access to cannabis when Bill C-45 comes into force, and re-evaluate the medical cannabis system within five years of legalizing recreational weed. The bill mandates a review within three years.
Health Canada, which issues the permits, hired 30 new staff in response to ballooning permit applications, which rose 101 per cent over the last six months of 2017.
Without a production permit under the current system, patients become liable to fine and imprisonment if they don’t destroy their cannabis.
The department also made a policy change last month to get rid of a backdating issue from when a doctor initially prescribes cannabis as a medication.
Boilerplate pot challenges
In late January, a Federal Court judge had called on Health Canada to review its processing timelines for renewals of medical cannabis permits that allow patients to grow their own bud at home.
In a ruling on Johnsgaard v. Canada – one of a number of similar cases before the court where a medical cannabis patient asked for “emergency relief,” alleging processing delays – Judge Henry Brown prodded the regulator to look into its processing speed.
“The potential consequences of delay cause me to suggest that Health Canada review any existing processing timelines and mechanisms to see that they are met,” he wrote. “In addition, Health Canada might consider giving notice of expected delays.”
Brown also suggested permit renewals should be done through administrative work, not court cases.
“Rights having been declared, I suggest they are best afforded through administrative procedures and should not require excessive judicial intervention,” he wrote.
The main case about application delays is still being reviewed but Brown dismissed the Johnsgaard case without costs because the permit was eventually renewed.
More than 28 Canadian cannabis patients from across the country had filed similar, if nearly identical, Federal Court claims based off of a template downloaded from a website, alleging processing delays are an infringement on their Charter rights.
A number of the cases have been declared moot, however, since the respective patients received their permit renewals after they pursued legal action.
Health Canada said in a statement last week there are 13 active cases before the court concerning delays. More claims have been filed since then.
Judge Brown is handling the cases in collective case management through Allan J. Harris v. Her Majesty the Queen, a case which has been proceeding through the court since September last year. Harris’ statement of claim argues processing time has been lagging because staff have been “swamped by many applications.”
The document argues that “over five months to key in the information to the computer is excessive,” and not having enough staff is a “lame excuse to delay the processing of medicinal permits.”
The defence argues the claim “fails to disclose a reasonable cause of action” and should be struck because it is “scandalous, frivolous and vexatious.”
“The pleadings do not contain any facts concerning the plaintiff’s personal circumstances or capable of supporting the constitutional violations alleged,” the Crown wrote in its statement of defence, adding that Harris “fails to explain why he requires [a] personal production permit and cannot instead purchase cannabis from a Licensed Producer.”
Applications for homegrown medical cannabis surged last year
Behind the scenes, those homegrown medical pot permit applications and renewals have been increasing exponentially, straining the system. The number of active registrations doubled in the last half of 2017, increasing sharply from 6,880 at the end of June to 13,829 by December.
Health Canada said it “aims to process registrations as quickly as possible,” but processing times can “take anywhere from eight to 16 weeks, depending on the complexity of the application.”
“The time to review an application and issue a registration certificate is highly dependent upon the number of applications received, and the quality or the completeness of the applications,” spokesperson Tammy Jarbeau said in an email.
“It also depends on the response time of applicants or health care practitioners, who may be contacted by our client service representatives to verify information or to request additional clarification. The department must also verify that an original medical document accompanies the application and that the health care practitioner is in good standing with their province or territory’s medical regulatory authority.”
Since home growing was reinstated for patients in August 2016, Health Canada processed almost 40,000 applications.
Jarbeau said processing times are “improving” after bringing on more staff, and the department is looking at “other ways to process applications more efficiently, to better inform the public of what needs to accompany applications, and to develop effective performance targets.”
Health Canada changed a processing policy in March to remove prescription back-dating issues after hearing from patients “that the time it takes to process an application can reduce the period of time available to produce a limited amount of cannabis for medical purposes,” according to a Health Canada document.
The same document, which gets sent to patients, tells them processing time can take “in excess of eight weeks to process an application and issue a registration.”
According to an email from the department of Justice’s litigation sector, the policy change will “ensure that processing times do not shorten the length of time the registration certificate is valid and allows Health Canada to issue registration certificates that will last a full year.”
It argues that one court case in particular, which alleged delays arising from permit backdating, should be considered moot.
Cannabis regime change: how the government got here
The current medical marijuana regime, brought about under the Liberal government, is called the Access to Cannabis for Medical Purposes Regulations (ACMPR). It came into place in 2016 as a short-term plan to respond to a federal court ruling that found banning home growing had infringed on patients’ section 7 Charter rights, affecting the affordability and access to medical cannabis for some. The Liberals decided not to appeal.
Originally, when the medical cannabis system was established federally in 2001, the regulations allowed for home growing. In late March 2014, the Conservative government removed the option, pointing to concerns over illicit diversion and home safety, including the potential for mould and fire hazards, and mounting administrative costs.
In 2013, Health Canada said in a document accompanying the policy changes that “rapid growth in the number of authorized users” had “significant implications” for running the program, including long processing times and rising costs. It also projected applications to continue to increase. That year, there were nearly 30,000 patients registered to use medical cannabis, where more than three quarters had home growing licenses.
Three years later, when the current regime was implemented in 2016, Health Canada expected administrative costs to be significantly less than the original system – working out to roughly $3.4 million a year after 2016/17 – and suggested the rate of increases in applications would be slower.
As the Liberal government legalizes cannabis, it plans to keep the medical cannabis system in place – at least in the short term, despite pleas from the Canadian Medical Association to merge them into one.
The new law will allow for anyone over the age of 18 to grow up to four plants per household. But the medical and recreational regimes will continue to differ in who can legally possess cannabis, and how much they can buy or grow.
The government’s consulting ‘Task Force’ recommended that Ottawa monitor and evaluate patients’ right to reasonable access to cannabis when Bill C-45 comes into force, and re-evaluate the medical cannabis system within five years of legalizing recreational weed. The bill mandates a review within three years.