The Ongoing Evolution of Canada’s Regulation of Marijuana

In the ongoing evolution of Canada’s marijuana laws, this summer, Health Canada implemented the new Access to Cannabis for Medical Purposes Regulations (“ACMPR”).  The ACMPR came into force on August 24, 2016 (replacing the old Marihuana for Medical Purposes Regulations) and provide increased access for Canadians who have been authorized by their healthcare practitioners to use cannabis for medical purposes.

What Do The Regulations Do?

While the previously in-force regulations required authorized patients to purchase cannabis for medical purposes from Health Canada-licensed producers, the ACMPR create two new routes of access.  Such purchasers can now:

  1. Grow a limited amount of cannabis for their own medical use (in which case they must first register with Health Canada and receive a certificate);
  2. Designate someone else to produce cannabis for them (which person must also receive a registration certificate and may not be the grower for more than two people, including themselves); or
  3. Purchase from a licensed producer as they have in the past.

Under the new regime, licensed producers may now also sell starting materials (seeds and/or plants) to patients or their designates who have received Health Canada-issued registration certificates.

The regulations also implement other changes such as new labelling requirements for licensed producers.

Why The Change?

This regulatory change came about in response to the ruling of the Federal court in Allard v. Canada1.  Decided in February 2016, the Allard case held that Canada’s Marihuana for Medical Purposes Regulations violated the liberty and security rights protected by the Charter of Rights and Freedoms.

The Allard case is just one of a number of court challenges to Canada’s medical marijuana regulatory regime.  Most notably, the Allard decision followed the 2015 Supreme Court of Canada decision holding that restricting medical access to marijuana to its dried form was also in violation of the Charter2.  The new Regulations incorporate this decision as well: registered persons, their designates and customers of licensed producers are all authorized to process dried marijuana they have grown into other forms (such as oils).

Challenges For Prescribers

The College of Physicians and Surgeons of Ontario’s policy on prescribing marijuana for medical purposes advises its members to proceed cautiously given the differences between marijuana and more conventional pharmaceutical products. Some aspects of this guidance are made more difficult by the amended Regulations. For example, the CPSO recommends that treatment be initiated with a low quantity of marijuana that is low in the psychoactive compound THC. With self-grown marihuana, the THC level is unlikely to be tested, making prescribing challenging.

The amendments making marihuana available in various forms also create challenges for prescribers. While patients can access cannabis oil, their physicians must continue to prescribe daily limits in grams of dried marihuana.

What Hasn’t Changed?

  • Applications granted to licensed producers prior to August 2016 continue to be valid and applications for such licenses will continue to be processed.
  • Legal access to marijuana remains – for the timebeing – limited to those individuals who have received the necessary healthcare practitioner prescription to use it for medical purposes.
  • Similarly, although the appearance of storefront “dispensaries” or “compassion clubs” has become more common in urban centres over the course of 2016, the new Regulations do not authorize such establishments to sell marijuana to patients or other purchasers.

                                                                                    

1 Allard v. Canada, 2016 FC 236
2 R. v. Smith, 2015 SCC 34