Here is why the R. v. Smith SCC decision is good for MMPR Licensed Producers?

The Supreme Court of Canada’s release of the R. v. Smith decision yesterday morning was greeted with much excitement by patients, activists and Licensed Producers (“LPs”) under Canada’s Marihuana for Medical Purposes Regulation (“MMPR”).  For patients and activists the significance and impact of the decision are fairly obvious.  For LPs, the significance is a little less obvious.

Since LPs are governed by, and licensed under, the MMPR, until the MMPR is amended LPs may only legally sell dried marijuana.  R. v. Smith doesn’t change this reality.  Nonetheless, the R. v. Smith ruling is good for LPs.

In order for the MMPR to be a viable alternative to the illegal market, Health Canada will eventually change the law to permit LPs to produce and sell extracts.  Because patients want extracts and edibles, this will help LPs gain market share at the expense of the illegal cannabis market and the MMAR grandfathered market.  Furthermore, by allowing LPs to produce extracts and edibles, LPs will be able (i) to differentiate their product offering from other LPs, (ii) use more of the cannabis plan (i.e. plant product that is now garbage can be used to create extracts) (iii) create higher margin product and (iv) expand the patient market to include persons that would not use cannabis treatment if smoking is the only available method of ingestion.

If you have any questions or would like more information regarding applying to be a licensed producer under the MMPR, Canada’s Marijuana for Medical Purposes Regulations, call or email Koby Smutylo at 613 869 5440 or koby@lawyercorporation.ca.

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The Cookie and The Court – Medical Marijuauna Extracts

In R. v Owen Smith, the BC trial judge found that the regulatory scheme breached s. 7 of the Charter, was arbitrary, and could not be justified. He struck the word “dried’ and the definition of “dried marijuana” from the Regulations. A majority of the BC Court of Appeal dismissed the appeal, but varied the trial judge’s order by suspending the effect of the declaration for one year to give Parliament a chance to respond.
This decision was appealed by the Crown and is scheduled to be heard by the Supreme Court of Canada on March 20, 2015.
Until the SCC rules, the R. v Owen Smith decision makes it constitutionally protected in BC to possess and consume extracts by MMAR patients subject to the Allard injunction.  The decision does not cover MMPR patients per se but an MMPR patient charged in B.C. should be able to use the reasoning in the R. v Owen Smith decision to successfully defend against the charge.  Since this is a BC court decision, it is not binding on courts in other provinces and territories of Canada. So, neither MMAR nor MMPR patients outside of BC risk being charged and, potentially, convicted for marijuana extract possession and consumption.   I say “potentially” because Court of Appeal decisions are considered by lower courts in other provinces, so a person charged may use the same charter grounds to avoid a conviction.
In March, if the SCC upholds the BCCA decision than all Canadian MMAR injunction-protected patients and MMPR patients could use R. v. Owen Smith to avoid a conviction and Parliament would have one year to respond.  However, there are other possible outcomes….For example, the SCC could find that Owen Smith did not have standing to argue the constitutionality of the law and in doing so the SCC could avoid the issue altogether.  Also, even if the BCCA decision is upheld, there would continue to be uncertainty until Parliament reacts and, even then, such a reaction may be subject to further constitutional challenges.
Bottom line is that barring a strong decision by the SCC overturning R. v Owen Smith on constitutional grounds (i.e. not standing) we are in for a long period of uncertainty regarding the legality of extracts.

If you have any questions or would like more information regarding applying to be a licensed producer under the MMPR, Canada’s Marijuana for Medical Purposes Regulations, call or email Koby Smutylo at 613 869 5440 or koby@lawyercorporation.ca.

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