The home grow conversation, just about everywhere, is a contentious one. It has been the basis for the formation of the entire commercialized cannabis industry, everywhere, one way or another. It is also a right that is being defined, pretty much globally, as one with a constitutional basis as reform begins to seriously roll.
Yet twenty years on, in Canada, at least, authorities are wondering, again, out loud, if the entire proposition needs to be re-examined – and for reasons stemming from both public safety and the need to curtail the illicit market.
A Brief History of Home Grow in Canada
It is not as if this is the first time that the hard-won right to grow cannabis as a patient has come under the microscope—even in Canada. Indeed, the entire formal industry was initiated in 1998 when a gay man, living with AIDS, challenged the government in court over his right to grow at home. The Ontario Superior Court not only recognized the right of the plaintiff to do so, but further instructed Health Canada to create a legal process to allow for the same. In 2001, after several more legal challenges by patients, the Canadian drug control regulations became only constitutionally valid with the existence of a working federal medicinal program.
In 2003, the Ontario Supreme Court upheld the right of patients to have access to a safe, legal source of cannabis and again found the federal program unconstitutional for what the court found to be an “illusion” of access. By July, with Health Canada announcing that it would accept written requests by federally registered users, Canada became the second country to begin regulating cannabis through a federal program (second only to the United States, which put its own highly limited program in suspension in 1989). Later that year, the Ontario Court of Appeals declared five more sections of the Marijuana Medical Access Regulations (MMAR) unconstitutional, including restrictions on production necessary for compassion clubs to operate.
The Interim Situation Has Lasted for A Decade
By 2013, this legal construct created the opportunity for the first cannabis industry participants to buy patient collectives as they created a corporate presence and then began to raise money on the Toronto Stock Exchange. These entities, known as Licensed Producers, or LPs, have since become some of the best-known cannabis companies in the world.
In 2016, the first legal clash between the LPs and patient collectives ended in a victory for Canadian patients. Namely that the right of home grow in Canada was challenged in court. Patients (at least in Canada) won the day. That said, the same could not be said of Germany. Indeed, the same month that Canadian patients successfully defended their right to grow, the first legal shipment of Canadian cannabis showed up in Germany. And in Germany, the right of home grow was indeed taken away from patients just over 9 months later in 2017 with the passage of the new law mandating health insurers cover the cost of the drug.
That, so far at least, has created a system where some patients can obtain their cannabis with reimbursement—but most still cannot. The current denial rate for patients by health insurers is 40%. Illicit home grow is in fact, for this reason alone, widespread aus Deutschland, even if the authorities are largely overlooking it. And for obvious reasons. Real patients will get off in court (even if this is a challenging and tedious if not expensive process). Even more especially as right next door across EU borders, legal home grow has also started to show up in several European countries, including Italy and most recently Malta.
While the Tió case failed at Strasbourg, there is a class of activists who are adept at planting lawsuits with EU level jurisdictions in mind. Strategic lawsuits are a “thing” in the industry – and that has come directly from the patient community. It has also already happened in the industry itself. See the most recent Aurora lawsuit in Holland over the bid. Not to mention the many tussles over the German one.
Regardless, the discussion in Canada has turned again to trying to figure out how to better regulate the program—including not just for LPs but for individuals and patient collectives. There are about 430,000 registered cannabis patients in Canada, who can obtain their cannabis directly from an LP. Approximately 10% of the same also have the right to grow their own or obtain their medicine directly from a patient collective if they cannot grow their own.
The problem, however, is that the regulatory environment that Health Canada has required, is not being met in many cases—starting with insecure if not downright dangerous grow areas. Further, the concern that some of this product is leaking back out to the illicit market, if not children, is back in the room.
Rescinding Rights to Grow
The draft legislation now being considered by Health Canada in fact, has a specific caveat in it that the agency can begin refusing or rescinding individual licenses under certain situations. This includes for those growers with noncompliant grow areas, those whose medical certifications do not meet requirements, for reasons including fraud, and the death of the patient (licenses are not transferable).
Advocates are up in arms. But the question remains, is every cannabis grow a good idea—and further, is every patient capable (including administratively) of growing cannabis for personal use or for the use of collectives?
The reality is that growing cannabis, period, is not an easy thing to do. The other reality of course is that even the bigger, public, and funded companies have had several explosions of their own (even if not lately). See CannTrust in the summer of 2019. Further there is this fact that despite its unpopularity in the advocacy community is also common sense. Advocates at the patient level are tolerant of the drug (and indeed require) far higher doses than recreational patients. The levels in Switzerland for the pending rec trial are actually coming from at least Canadian medical data.
But there are other problems looming.
Cannabis Home Grow—Just Like Tomatoes?
Overall, there is a regulatory and legal tension that overhangs this entire conversation everywhere—and is far from solved. Part of that is that growing cannabis is not “just like” growing tomatoes. The second is that patients (people who are by definition individuals with both chronic conditions and commonly dismissed if not labelled as the “disabled”) are usually left out of “normal” working environments and must struggle to make ends meet somehow—not to mention obtain their medication.
Growing cannabis for other people’s consumption is one way to do this. The problem of course, is that those who cannot function in a normal work environment are also people who often have a hard time meeting the regulatory guidelines for cannabis cultivation—either physically or economically.
The fight, for now, is far from over. But it is also clear that “regulating” the industry everywhere still has major issues. Allowing patients to grow their own is an inevitability. But creating an environment where these grows are safe, and the industry itself, in the meantime, can offer an affordable alternative even with this competition, is not an easy thing to do.
The conversation about patient home grow, in other words, is continuing. And in the meantime, patients and those who grow in collectives are getting a wake-up call. This is not the “industry” of yesteryear. Even for patients. And even in Canada.