Feb 24

Allard et al v. Canada Federal Court Decision Favours Patient’s Rights and LPs

Today, Judge Michael Phelan delivered his long awaited decision. Judge Phelan ruled that prohibiting medical marijuana patients from growing their medical marijuana violates their Section 7 rights under Canada’s Charter of Rights and Freedoms. He declared the MMPR unconstitutional and therefor invalid; however, he suspended his declaration of invalidity for six months to allow the government to come up with new regulations. For Licensed Producers and MMAR producers and users nothing has changed for now, but big changes within six months are now certain.

The government has six months before the Court’s declaration of invalidity becomes effective. The government has three choices: 1) amend the MMPR to make it constitutional, 2) enact a new or parallel medical marijuana regime that renders the regulatory regime constitutional or 3) do nothing and let the MMPR die in which case marijuana possession and production of any kind (including under the MMPR) would become criminal, except that specific enforcement activity would be constrained by the Charter i.e. persons with a medical prescription or authorization would be entitled to possess, use, grow and/or distribute marijuana.

Our view is that the government is likely to amend the MMPR and enact a parallel medical marijuana regime for individuals and personal caregivers and that both patients and LPs have good reason to celebrate the Court’s decision in Allard.

Here’s why the future regulatory regime is likely to be good for patients and LPs:

– the regime is likely to include the right for individuals to grow their own medicine and, potentially, for other individuals under their personal care;
– the regime is likely to permit patients to access marijuana in the quantity (i.e. grams/day) and format (i.e. oils, edibles and concentrations) prescribed by doctors;
– there will be additional legal sources for LPs and individuals to legally obtain starting materials;
– it may become easier for patients to source marijuana from more than one LP;
– more licenses will be granted under the MMPR to increase the quantity and variety of the available supply and to promote affordability for patients;
– there is no constitutional basis for regulating the pricing practices of LPs; and
– LPs may be permitted to open retail locations so that the legal supply available to patients is made more accessible.

In our view, the future regulatory regime will not include MMAR-like dispensaries and other “grey area” license pools because that structure was allowed to exist as a result of the constitutional flaws in the MMAR and the MMPR. If the government gets it right or, at least more right, the constitutional basis for permitting large-scale illegal growing and selling will disappear.

The future regulatory regime is likely to put more pressure on doctors as not just the gatekeepers but also the quantitative and qualitative regulators. Any government imposed limits, i.e. 5 grams per day, are arbitrary and unconstitutional. In addition, municipal governments could soon be faced with passing by-laws applicable to home marijuana production activities.

On the other hand, the government could avoid having to design, implement and administer a constitutionally valid regulatory regime for medical marijuana by legalizing uncontrolled marijuana access for all Canadians. While this solution would be appealing for its simplicity, it is highly unlikely for public safety and lost tax-revenue reasons. Also, Canada would be in violation of United Nations treaties to which it is a signatory.

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

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Jun 12

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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Jun 11

What does the Supreme Court of Canada’s decision in R v. Smith mean for patients, MMAR producers and MMPR licensed producers?

Earlier this morning, we published a concise summary of the SCC’s decision in R. v. Smith released today. See here. While the Court’s decision is clear, what is less clear is what it means for those patients authorized to possess and use marijuana for medical purposes under Canada’s MMAR and MMPR, for “Designated-Person” producers under Canada’s MMAR and for “Licensed Producers” under Canada’s MMPR.

For patients authorized to possess and use medical marijuana under the MMAR or the MMPR, the significance of the R. v. Smith ruling is clear: persons legally authorized to possess marijuana may legally create, possess and consume non-dried forms of medical marijuana.

For “Designated-Person” producers under Canada’s MMAR and “Licensed Producers” under Canada’s MMPR, the decision should not be interpreted as authorizing them to process and sell marijuana in forms other than dried. The Supreme Court did not rule on this issue. In fact, in R. v. Smith the constitutionality of the criminal charges against Mr. Smith was not challenged. Rather, at the trial level the Crown chose not to adduce any evidence and, as a result, Mr. Smith was acquitted.

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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Nov 6

MMPR – License Process and Update From Health Canada

On October 22, 2014, Health Canada issued a letter to applicants for Canada’s Marijuana for Medical Purposes Regulation licenses.  This letter provided certain interesting statistics, including the following:

  • as of the date of the letter, there were 21 licensed producers authorized to produce a total of approximately 45,000 kilograms per year;
  • as of June 30, 2014, there were approximately 7,900 clients registered with the licensed producers;
  • registered clients purchased 148 kg of marijuana in June 2014; 
  • as of the date of the letter, Health Canada had received 900 license applications.

The letter also provides an overview of the application process, certain additional guidance for LP applicants and also re-iterates that Health Canada’s objective is to balance its need to “ensure reasonable access to marijuana” with its mandate of of “protecting public health, safety and security”.

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

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