Time to Become a Health Criminal?

by Shawn Buckley, LLB
Source: Health Action, Summer 2012

Most of us were brought up to be law-abiding citizens. When we hear about crime, our instinct is to hope that the perpetrators are brought to justice. We do not think of ourselves as criminals and we would be horrified to find ourselves in a position where we felt we had to break the law.

Sadly, more and more of us are going to find ourselves in the position where we will be compelled to break the law and become health criminals. This will happen for two reasons. First, because we are losing access to products we rely on for our health or, in some cases, for our very lives. Second, the Federal Court has recently made it more difficult to legally access vital medications.

Most of us are aware that we are losing access to natural health products because of the Natural Health Products Regulations. For many of us this is not doom and gloom. The store shelves are still full, and most of the time our health practitioners have effective products with which to treat us. However, when all is said and done, we will have lost access to the majority of the natural health products that we had access to before the Regulations. And for some of us, products that are essential to manage very serious health conditions, or that are essential for us to stay alive, are taken away.

A widening net

The most difficult calls I receive are those by people who depend on a natural product that has been taken away. The story is always the same. They have a serious health condition. They have tried all the approved chemical drugs, which either did not work or the side effects were intolerable. They found a natural remedy that works. They can no longer get the natural remedy because Health Canada does not approve of it. They are desperate and do not know what to do.

The "what to do" when products we need are taken away has become more difficult by a Federal Court decision in Truehope v. Canada. Truehope developed a vitamin-and-mineral supplement to treat bipolar disorder and major depressive disorder. Health Canada learned of the supplement because the Alberta government, impressed with initial study results, funded a clinical trial. After shutting down the Alberta government's clinical trial, Health Canada told Truehope to stop selling because Health Canada had not approved the product. At the time, roughly 1,000 Canadians were successfully managing serious mental health conditions with the product.

Truehope told Health Canada that they could not stop selling or people would die and be hospitalized. Undeterred, Health Canada seized two shipments as they came across the U.S. border. Health Canada then told customs to turn away other shipments.

For the thousand Canadians who depended on the product, the "what to do" question was one of life and death. Health Canada completely ignored their letters and calls pleading for access to the product. For anyone wanting to understand the seriousness of the pleas for help, almost 800 pages of notes by Health Canada counsellors were filed in the Alberta Provincial Court. Ordinary people explain how they have become well and beg for access to the only product that works for them. In some cases, Health Canada is even asked what they are going to do about the person's suicide if the person runs out of the product.

I personally believe for many reasons that there were suicides. The head of the Alberta Branch of the Canadian Mental Health Association (CMHA), Ron LaJeunesse, held press conferences blaming Health Canada for suicides of CMHA members who could no longer access EMPowerplus. I saw LaJeunesse testify about going to one of the funerals. Experts like Dr. Charles Popper of Harvard Medical School testified that, if EMPowerplus was taken away, there would be deaths and hospitalizations. Some people who depended on EMPowerplus gave evidence that they were not willing to become mentally ill again and had a suicide plan in place if they ran out. Roughly 300 people disappeared from the Truehope program during the 10 months that Health Canada restricted access.

Court action to save lives

To ensure that people were not put into danger from Health Canada seizures, Truehope started a Federal Court action challenging Health Canada's seizure power. Truehope's argument was that the government cannot seize vital medications, be they chemical or natural, without two things. First, you have to tell the people whose vital medication was seized that you have seized it so that they can take steps to protect their health. Second, there has to be a fast and accessible way to ask for your vital medication back. In effect there has to be an accessible way to argue that your need for the medication is greater than the government's interest in pursuing full compliance with the law.

Truehope led extensive evidence, including the evidence referred to in this article, to show that there was death and harm caused by the seizures and turning away of the product. Indeed, I invited the Court to find as a fact that Health Canada's actions led to death. I think that this put the Court in a bind. The evidence of death and harm was overwhelming. If the Court accepted it, one would think it would be difficult to ignore that notice and a quick right to be heard are necessary. One would also think that, logically, Health Canada was acting criminally in causing death while in possession of information that should have made it clear they were putting people in danger.

Evidence excluded

As it turns out, the Court excluded most of the evidence of death and harm. The Court said that the parties, Truehope and David Hardy, did not have standing to bring this evidence before the Court. "Standing" is simply a legal term to say whether or not a party has the right to "stand" before a court and ask for the relief they want. To have standing the party has to have an interest in the law sufficient to enable them to challenge it in court. In the Truehope case, Truehope ran the Truehope Program, which was the only way to access EMPowerplus. They were responsible for managing people with EMPowerplus. According to the Alberta Provincial Court, it was legally necessary for Truehope to continue to provide EMPowerplus at this time. David Hardy was one of the people who had EMPowerplus seized by Health Canada. The product was for his family, including two of his children who depended on it to manage serious mental health conditions. Mr. Hardy was also one of the directors of Truehope.

After finding that Truehope and Mr. Hardy did not have "standing" to lead most of the evidence of death and harm, the Federal Court excluded the evidence. Once a Court excludes evidence, it is as if the evidence does not exist. With most of the evidence gone, the Court dismissed the case. The Court disagreed that people need to be told when their vital medications are seized. The Court disagreed that there has to be a quick and accessible way to argue for the return of vital medication. Rather, the Court said that it was enough protection that people who have vital medications seized can apply to the Federal Court for their return.

Dubious solution

I am alarmed with the proposition that we are protected by applying to the Federal Court. Most telling is that of the 1,000 people whose lives were threatened by Health Canada, none started Court action. I expect that several sought legal advice and discovered that Court proceedings tend to be expensive and slow. The Canadian government with unlimited resources aggressively fights such actions, making them expensive and drawn out. For many people who depend on vital medications like EMPowerplus, Court proceedings are simply not a viable option.

What happened in the 10 months that Health Canada restricted access to EMPowerplus is that smuggling rings sprang up across Canada. Otherwise law-abiding citizens began smuggling the product for themselves or for family members. In effect, thousands of Canadians became health criminals.

In light of the Truehope decision, it would appear that there are going to be more and more health criminals across Canada. As we lose access to more vital natural products, many of us are going to be forced to break the law to maintain our health or the health of those close to us. I wish that it was not coming to this.

The Natural Health Products Protection Association  that I am a part of is wanting to challenge the current regulations in an effort to stem our loss of vital products. We are, however, going to need manufacturers, distributors, practitioners, and people who depend on products that are now illegal to become parties. In effect we need people with "standing" so that we can try to arrive at a more balanced regulatory environment. If anyone is interested, please email us through our website. And in the meantime, do what you can to protect yourselves and those close to you.

Shawn Buckley, LLB, is president of the Natural Health Products Protection Association (NHPPA), a non-profit organization dedicated to protecting Canadian access to natural health products. www.nhppa.org

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