Canada’s medical marijuana laws were born from a single provision of the CDSA. Section 56 provides an exemption from the CDSA if it is in the public interest or necessary for medical purposes. Challenges to prohibitions on marijuana usage have been based on the shortcomings of the section 56 exemption. Specifically, the courts have ruled that it is inappropriate for the Minister of Health to have sole discretion in the granting of exemptions which this decision affected the applicant’s access to treatment when there is no a clear process to deal with applications for medical marijuana. Although the statutory exemption existed, it was impractical and therefore failed to protect constitutional rights.1
Medical marijuana regulations began with the Marihuana Medical Access Regulations2 (MMAR) in 2001. Under the MMAR, applicants for whom conventional treatments were ineffective or inappropriate could obtain an exemption to possess marijuana by submitting a supporting declaration from a medical practitioner certifying their claims. An exemption under the MMAR granted patients an Authorization to Possess (ATP) license, allowing licence holders to obtain lawful access to marijuana in three ways: (i) by growing their own, under a personal use production licence; (ii) by obtaining it from a designated licensed producer; or (iii) by purchasing dried marijuana from Health Canada which had contracted with a private company to produce and distribute medical marijuana.3
Administrative and financial costs associated with operating the MMAR program and supplying dried marijuana soon became prohibitive for Health Canada. Fire and public safety concerns arose as cultivation of the drug took place mostly in residences that had neither the construction to support such production nor the safeguards necessary to prevent criminal activity and break-ins.4
Inevitably, the noted concerns mandated changes to the regulatory regime, and in 2013, the MMAR were repealed and replaced by the current Marihuana for Medical Purposes Regulations (MMPR).5 Under the new regime, Health Canada’s regulatory role is restored and its previous obligation to supply and distribute marijuana is eliminated. Additionally, both personal and designated use production licences were no longer allowed. Instead, patients must purchase marijuana from government-licensed producers—the premise being that Health Canada oversight would ensure product quality and facility safety and security.
Under the MMPR, patients obtain medical documentation from a healthcare practitioner and use this document to register as a “client” directly with the licensed producer of their choice, rather than submitting their medical documents to Health Canada. Dried marijuana could then be shipped to patients directly by the licensed producer. Note that these regulations do not authorize producers to provide medical marijuana in a storefront.
Court Challenges to MMAR and MMPR
The exemptions under both the MMAR and the MMPR are confined to dried marijuana, and so patients cannot possess cannabis products extracted from the active medicinal compound in the cannabis plant. So a patient legally authorized to use marijuana could not administer it via an oral or topical route. Patients argued that inhaling marijuana can be potentially dangerous in and of itself and may be less effective than treatment with cannabis derivatives. In 2015, this led the Supreme Court of Canada to hold that the prohibition of non-dried forms of medical marijuana limited liberty and security of the person. This resulted in Health Canada issuing a section 56 exemption under the CDSA enabling licensed producers to provide a legal source of cannabis oil and fresh marijuana leaves and buds to clients.6
Most recently, in February 2016, the Federal Court of Canada ruled that the MMPR were infringing Charter rights by restricting the rights of medical marijuana patients to grow their own cannabis.7 The declaration striking down the MMPR has been suspended for six months. This means that the government has only a few months to develop a new regime that is consistent with the principles of access raised by the Court decisions.
Stay up to date on these developments to find out “What’s Next for Marijuana Regulation?”.
1 Parker, supra note 3.
3 Allard v. Canada, 2016 FC 236 [Allard].
6 R v Smith, 2015 SCC 34.
7 Allard, supra note 7.