A case for compassion

Raids: the impact

On November 12, the Victoria Cannabis Buyers’ Club (VCBC) was raided by the provincial government’s Community Safety Unit.

The raid of the longstanding establishment was one of several that have occurred at compassion clubs and medicinal dispensaries in B.C., including in Vancouver and Squamish, over the last few months. These raids occur at the hands of the province’s Community Safety Unit (CSU), which is also tasked with giving unlicensed shop owners notice to cease operations. That was the case at the end of October when the Nelson Compassion Club, which had been operating since 1999, closed its doors for good.

VCBC, which currently has approximately 5,000 active members, reopened the day after the raid—but the events of last month have left staff and patients who rely on the club’s assortment of products in a perpetual state of fear.

Majick Stirling, one of three staff members that Inside the Jar connected with for a phone call, was initially a member of the club and uses its products to help manage her mental health and chronic pain. When VCBC became a non-profit society, she was on the original board of directors, and held that position for four years. Altogether, she has relied on the club’s services for about a decade.

Working at the club for so long has enabled her to make “connections” that ensure she will still have access to her own medicine regardless of future raids, but she said patients who have come to depend on VCBC’s affordable, yet potent, products are terrified of losing their medicine.

“They’re not going to find the price or the quality that they’re accustomed to,” she said, specifically when it comes to patients who rely on high-dose edibles.

Stirling considers the legislation around tetrahydrocannabinol (THC) content for legal edible products “shortsighted” as it does not allow for the potency that many medicinal users of cannabis require. Without the right products, she worries they will either be forced to consume multiple edibles, potentially adding to their sugar intake and their bottom line; or “worse”, that they might have to go back to using pharmaceutical drugs.

Before Jason Balaam began working behind the desk at VCBC, he spent eight years as the club’s head baker. Like Stirling, he acquires his medicine from the club in various forms.

He told ITJ that on the day of the raid, staff members and patients waited until the police left and then immediately made a trip to their local MLA Carole James’ office to voice their concerns. The next morning, a crowd gathered on the steps of the Parliament building in Victoria where the club’s founder, Ted Smith, gave a speech.

By 3 p.m. the day after the raid, VCBC had reopened to serve patients. There was a line-up out the door and around the side of the building.

“There was a lot of fear,” said Balaam describing the feeling in the packed club the day after the raid.

“The support came from all the people that came to the Parliament buildings in the morning. This wasn’t support,” he said, paraphrasing a conversation he had with Smith and a patient that day.

“They call themselves the Community Safety Unit, but because of their actions, hundreds if not thousands of people went to bed that night panicked and afraid. That’s not safe.”

“These were people who were afraid that they were not going to be able to get their medicine in a consistent supply, or [of] the quality that they’re used to.” He called the reactions of some of the club’s elderly members “heartbreaking” and noted that two terminal cancer patients who were in the store at the time of the raid were forced to watch as officers dumped their medicine into giant garbage bags.

“They call themselves the Community Safety Unit, but because of their actions, hundreds if not thousands of people went to bed that night panicked and afraid. That’s not safe.”

Like Stirling and Balaam, Dylan Nickerson, VCBC’s community liaison officer, is both an employee and a patient. He uses the club’s products to help alleviate the symptoms of his fibromyalgia. Until five years ago, he was on disability, but said that the job at the club significantly increased his quality of life.

“It allows me to have the kind of life so that I can actually help other people, and do that by working,” he said. “Without these products, I wouldn’t be working, and without this club, I honestly have no idea where I’d be.”

Nickerson said that in the days following the raid, members who had heard about it in the media or on Facebook came in to stock up on products they knew they wouldn’t be able to acquire elsewhere if the shop was raided again.

“One woman came in earlier today and stocked up on chocolate bars because she wasn’t sure if she would be able to find them,” he said. The chocolate bars in question contain 750 milligrams of THC.

“For the government’s recreational use edibles, we would have to chop that chocolate bar into 75 individually wrapped doses to achieve the same effect.” The irony? Nickerson said the member is an employee of the government.

All three employees are obviously proponents of a completely separate medical cannabis system; one that allows for cannabis products in all its forms, at various potencies, and at prices that are well below recreational ones.

“[The federal government] needs to allow medical patients storefronts with knowledgeable staff, and they need to be able to see and smell the product,” said Nickerson.

Balaam said Smith is eager to sit down with the federal government and negotiate a framework in which clubs like theirs can continue to operate, and where patients can get their medical cannabis at more reasonable prices.

“The best outcome would be that they would come and sit down and talk with us,” he said. This is hardly new for Smith, or any of the individuals who have operated compassion clubs and medicinal dispensaries. The VCBC opened in 1996, before there was even legislation for medical cannabis in Canada.

VCBC communications officer Nikki Jackson and community liaison officer Dylan Nickerson attended a demonstration outside Solicitor General Mike Farnworth's office on Saturday, December 6. (Amanda Siebert)

Stirling wonders whether an eagerness to shine a light on medical cannabis has actually worked against the business owners and growers who have built up the province’s thriving illicit market.

“To me, this whole thing feels like B.C. is being punished for being trailblazers in this community,” she said. She isn’t exactly holding out hope for inclusion, either.

“Ted Smith and the VCBC have been around for over 20 years, and they have always had to work outside the law,” she said. “I know that we were excited to be included in the framework back in the day, but that never happened. It didn’t even seem like it was ever going to be an option.”

On things ignored

When Stirling says, “back in the day,” she’s referring to a time when court rulings and Senate reports had medical cannabis users excited about the prospect of not only being permitted to exist, but about being consulted with. Let’s remind ourselves of all the precedents that have been set by the courts in relation to fair access to medical cannabis:

· In 1988, a Supreme Court case established a constitutional right to access health care without fear of criminal sanction (R. v. Morgentaler).

· In 2000, a case in the Ontario Superior Court found that the prohibition on marijuana was unconstitutional, as it did not contain any exemption for medical use (R. v. Parker). This led to the development of Health Canada’s first framework for medical cannabis in 2001.

· In 2007, two cases in the Ontario Court of Justice established that the right to access health care without fear of criminal sanction included access to cannabis (R. v. Long, R. v. Bodnar/Hall/Spasic).

· In 2012, a Supreme Court case established that restrictions on the forms of medicinal cannabis are unconstitutional (R. v. Smith).

· In 2016, it was established that restricting a patient’s right to grow for themselves was unconstitutional (Allard v. R.). In his closing statements, the judge presiding over the case, Justice Phelan, highlighted evidence presented by Jamie Shaw, acknowledging that dispensaries were “the heart of access” for medicinal cannabis users.

This access is protected under Section 7 of the Canadian Charter of Rights and Freedoms.

To the new cannabis consumer, compassion clubs and medical dispensaries may seem like a thing of the past, but the reality is these establishments set the tone for the type of experience we see today, even in a recreational setting. Historically, the model is so well respected that the 2002 Report of the Senate Special Committee on Illegal Drugs even suggested that Health Canada take measures to “support and encourage the development of alternative practices, such as the establishment of compassion clubs.”

“The practices of these organizations are in line with the therapeutic indications arising from clinical studies and meet the strict rules on quality and safety,” reads the nearly 20-year-old report.

Among its recommendations, the committee suggests that Health Canada should “at the earliest possible opportunity, undertake a clinical study in cooperation with Canadian compassion clubs.”

Historically, the model is so well respected that the 2002 Report of the Senate Special Committee on Illegal Drugs even suggested that Health Canada take measures to “support and encourage the development of alternative practices, such as the establishment of compassion clubs.”

In later sections, the committee calls out Health Canada for failing to leverage the expertise in the medical cannabis community, and slams its first attempt at crafting regulations around access.

“No attempt has been made in Health Canada’s current research plan to acknowledge the considerable expertise currently residing in the compassion clubs,” it reads.

“The regulations made in 2001 by Health Canada, even though they are a step in the right direction, are fundamentally unsatisfactory. They do not facilitate access to therapeutic cannabis. They do not consider the experience and expertise available in compassion clubs.”

Possible opportunity in another B.C. city

While Health Canada shirked its responsibility and ignored court precedents and recommendations from the Senate committee, dispensaries began popping up across the country. Eventually, municipalities began making their own rules.

In June 2015, Vancouver became the first Canadian city to enact a set of bylaws that allowed for the operation of dispensaries and compassion clubs. The medical marijuana-related uses bylaws put a steep price on business licences for cannabis retailers that were willing to comply: if your location was approved and you were awarded a development permit, the annual cost of a licence was $30,000. Compassion clubs that offered cannabis to patients with established medical conditions, however, were charged a licence fee of $1,000.

The following year, the City of Victoria introduced its own legislation. At the time that city’s council was touted for taking a progresive approach to regulations, which didn’t shy away from using words like “medical” and carried significantly lower licensing fees than its sister city on the mainland.

Then in June 2018, Vancouver’s bylaws were amended to align with federal, non-medical legalization. The City of Victoria followed suit in November that year.

After a public hearing, all references in the Vancouver regulations to “medical marijuana-related use” dispensaries were removed and replaced with the term “cannabis store”, which city council defined as such:

“…the use of premises for the sale of cannabis, including any products containing cannabis, for consumption off premises, and includes a Compassion Club as defined in the License By-law”.

While the above definition implies that the municipality has maintained a place in its licensing scheme for shops with a medicinal focus, a July 2018 report by chief licence inspector Kathryn Holm called the definition’s inclusion of compassion clubs into question:

“The by-law review … revealed that several conditions in the City’s Compassion Club licence type contravene provincial regulation, including the prohibition of co-locating cannabis retail with another business. The municipal Compassion Club business licence currently requires the provision of both health services and retail. Staff recommend that the Compassion Club licence conditions be updated to align with the provincial regulations. Compassion club licences will continue to be available for those business operators wishing to provide cannabis-related health care services without cannabis retail sales.”

While it’s not clear if the above recommendation was ever implemented, the city’s website would suggest that it has been: it states that its compassion club business licence is, “for non-profit societies that don't sell cannabis but advocate its use for medical purposes and provide a wider range of health services to their members”.

To make things more confusing, in June 2019, council moved to lift a ban on retail cannabis stores in the Downtown Eastside. The motion, passed with harm reduction in mind, called on staff to make recommendations to council, “with respect to regulatory options and potential pathways that could enable low-cost, legal, medicinal cannabis options for the Downtown Eastside (potentially on the model of a community cannabis store or compassion club with a social enterprise, medicinal, and research focus; consistent with Health Canada’s Access to Cannabis for Medical Purposes Regulations).”

It appears that council is showing support for the idea of seeing medicinal cannabis provided to patients at low cost and by using a compassion club model (at least on the Downtown Eastside), but it also states explicitly on its website that medical cannabis is only available through the federal government.

While Vancouver’s former council regulated dispensaries to create access—former City Councillor Kerry Jang stated explicitly that distance regulations were put in place so that patients and neighbourhoods could “get what they need”—the city’s current councillors seem unresolved on the issue of providing medicinal access to cannabis.

These conflicting pieces are frustrating, but are no match for Canada’s premier cannabis lawyer. John Conroy believes that because of the inclusion of compassion clubs in the City of Vancouver’s “cannabis store” definition, there may be a legal work-around for compassion clubs in the city that want to be compliant, while still being able to provide the same products to their members. He’s currently assisting the BC Compassion Club Society in the process.

Conroy, who has spent more than 40 years advocating for fair access to cannabis, said it comes down to jurisdiction. He’s confident that when the CSU steps into a compassion club to conduct a raid, it’s acting outside of its responsibility.

Members and supporters of the VCBC attended a demonstration outside Solicitor General Mike Farnworth's office on Saturday, December 6. (Amanda Siebert)

“The province has been given the power to take over distribution, but not in relation to medical cannabis; only in relation to recreational cannabis,” he told Inside the Jar by phone last month.

“One of the federal licences that you can get is a licence to sell for medical purposes. I’ve said to the BC Compassion Club Society (BCCCS), and they’re slowly doing this—they’re applying to the feds for a licence to sell for medical purposes,” he said.

The club would apply for a federal licence to become an authorized cannabis seller, similar to Shoppers Drug Mart, which would permit them to register patients who want to purchase medical cannabis. (According to Conroy, while the license Shoppers has received is "a license to sell medical cannabis without possession", meaning it would have no supply onsite, the one the BCCCS would apply for would be a "license to sell medical cannabis with possession".)

But the product also has to be legal, Conroy pointed out. His second suggestion to the club is that, in the absence of an exemption or allowance for its designated growers to take on more patients, the club’s growers apply for micro cultivation licences. So far Conroy said at least one has done so—but others have pointed out that the costs associated with this approach are admittedly far too high for the club to maintain its model. He’s encouraged those who want to move forward in their application to invite a condition that they intend to grow only for the club.

“Then it’s an internal economy, where you’re not even affecting the other economy,” he said. “A way to fit yourself into the existing regulations that comes as close as possible to what you’re doing, is if your grower has a licence to sell medical cannabis; the club has a licence to sell medical cannabis; and there’s some sort of arrangement between the club, the grower, and its members, and how they share the cost.”

Ideally, Conroy said, members could order from the club just as you might from an existing licensed producer, but there would be other options, too. Instead of having product shipped to your home address, it could be shipped to a designated caregiver who might be someone at the club. Members could give the club approval to receive their medicine. Or, if members still wanted to see and smell the product before making a purchase, they could order online within the confines of the club and then promptly pick up their product while inside.

“There’s an obligation on government to provide this, and I’ve said to them, if they interfere with it and limit it, that will entitle each of those patients to an appropriate and just remedy for the violation of their rights based on the failure of the government to provide adequate, reasonable access.”

“That’s what I’m suggesting as an interim measure. The feds have failed, in my view, to provide reasonable access to medically approved patients by failing to have a provision for medical dispensaries or compassion clubs,” he said.

Conroy’s suggested path is not the only option. With the correct zoning, a club might be able to apply for federal processing licence, but, like the case of applying for a micro-cultivation licence, costs for the end-user would increase. These increased costs are the crux of the issue, because they stand in the way of access. Still, Conroy has faith in the courts, and has continued to put pressure on the federal government to create a medical framework that doesn’t interfere with a patient’s rights.

“There’s an obligation on government to provide this, and I’ve said to them, if they interfere with it and limit it, that will entitle each of those patients to an appropriate and just remedy for the violation of their rights based on the failure of the government to provide adequate, reasonable access.”

Note from the editor: This story was updated to include details regarding the difference in federal medical licenses (Shoppers Drug Mart vs. BCCCS) on Thursday, December 12.