Most people are aware that the Federal Liberal Party campaigned on the promise to legalize marijuana. When this will actually happen is anyone’s guess. At the same time, there are regulations in place to allow people with a medical need for marijuana to have access. Currently, only people with a medical purpose can have access to legal marijuana. The large regulatory problem that these patients have faced is, “how do they get marijuana?”
In 2000, the Ontario Court of Appeal ruled that making it illegal to have or grow marijuana was a violation of a patient’s charter rights. The court had to rule that without an exception for a person with a medical need for marijuana, the law that made possession of marijuana illegal was invalid. At the time the court suspended the declaration of invalidity for twelve months so that the Federal Government could create a new law to fix the issue.
In 2001 the Marijuana Medical Access Regulations (“MMAR”) took effect. It created a system in which patients could get marijuana from three sources: they could grow it themselves, they could get it from a designated grower, or they could get it from Health Canada. Eventually Health Canada phased out the third source putting its marijuana to use for research purposes. All growers had to receive a license from Health Canada which limited how much they could grow and where they could grow the marijuana.
In 2014 a new set of regulations was set to replace the MMAR. The Marihuana for Medical Purposes Regulations (“MMPR”) were created to limit the production of marijuana. Under these regulations a patient could only obtain dried marijuana from an authorized producer.
As a result, a constitutional challenge was brought to the Federal Court. In 2014 the court granted an injunction for many personal growers and designated growers who had licenses under the MMAR until it decided whether the MMPR was constitutional. The Federal Court reached a decision on February 24, 2016 finding the regulation to be unconstitutional for being arbitrary and overbroad.
This has left the rules around growing marijuana in limbo for the time being. Declaring the regulation invalid does not suddenly make marijuana legal. Marijuana would remain illegal under the Controlled Drugs and Substances Act. There has to be replacement legislation. So the court has suspended the declaration of invalidity.
Canada has six months to come up with a regulatory scheme to ensure that people with prescriptions can access their marijuana. In the meantime, the people who were able to produce by the pervious regulation and injunction will likely still exempted from the law. If you aren’t sure if you are exempted, you should talk to a lawyer.
Scott Buchanan is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca