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

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


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


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








Beware! Health Canada Cancels MMAR Licenses if You Purchase from a Licensed Producer

In Allard, the Court ordered that a holders of a valid Authorization to Possess under the Marihuana Medical Access Regulations (“MMAR”) are exempt from the repeal of the MMAR and any other operation of the Marihuana for Medical Purposes Regulations (“MMPR”) which are inconsistent with the operation of the MMAR, to the extent that such an Authorization to Possess shall remain valid until such time as a decision in the Allard case is rendered.  Following the issuance of the Order, Health Canada announced that it will treat Authorizations to Possess, Personal-Use Production Licences, and Designated-Person Production Licences issued under MMAR as extending beyond March 31, 2014 until a decision in Allard is rendered.   This means MMAR licensees, at least for now, are safe to continue exercising their rights under MMAR, right?  Yes…sort of.

Health Canada is taking the position that a licensee under MMAR that registers with and purchases from a licensed producer under MMPR is cancelling their MMAR rights.   According to Health Canada, you may only have access to marijuana for medical purposes under either MMAR or MMPR, but not both.  Apparently, if you hold a MMAR license and purchase from a MMPR licensed producer, Health Canada will automatically send you notice that your MMAR rights are cancelled.  The Allard injunction does not appear to be preventing Health Canada from enforcing this provision of MMPR.  So, unless you are willing to give up your MMAR license, do not purchase medical marijuana from a MMPR licensed producer.

If you have any questions or would like more information regarding Health Canada, medical marijuana or Marihuana for Medical Purposes Regulations, call or email Koby Smutylo at 613 869 5440 or






Federal Superior Court of Canada’s Injunction Welcomed by Applicants for Medical Marihuana Producer Licenses

In 2001, Health Canada granted access to marijuana for medical purposes by implementing the Marihuana Medical Access Regulations (“MMAR”).  Under MMAR, patients and other private persons were permitted to produce their own supply.  In 2013, the Government of Canada announced that MMAR would be replaced with new Marihuana for Medical Purposes Regulations (“MMPR”), thereby treating marijuana similar to the treatment of other narcotics approved for medical purposes.   Under MMPR, private production would be prohibited in favour of licensed medical marijuana production and distribution.  Health Canada’s authorization of the production of marijuana for medical purposes in private residences under MMAR will end March 31, 2014 and MMAR will be repealed and replaced on April 1, 2014 with the MMPR.

The prohibition on private production of medical marijuana is being challenged and in connection with this challenge, on March 21, 2014, a Federal Supreme Court of Canada judge granted an injunction that exempts currently licensed marijuana users and producers from the terms of the incoming MMPR.  Essentially, those exempt users and producers can continue to possess, use and produce medical marijuana under the MMAR rules.  Access to medical marijuana to treat chronic conditions was the basis for the Court’s decision to grant the injunction.

Surprisingly, applicants to become licensed producers under MMPR are welcoming the injunction since many will be sourcing their start-up marijuana plants from MMAR producers.  If an applicants does not receive its medical marihuana producer license by March 31, 2014 it faced losing its valuable supply and having to scramble for a new source.    The injunction is a temporary measure and it remains to be seen whether private production will ultimately be permitted to coexist with commercial licensed production.   If that is in fact the outcome, will licensed producers suffer from a reduction in their customer base?

If you have any questions or would like more information regarding the Federal Superior Court’s decision or the laws applicable to medical marijuana in Canada, call or email Koby Smutylo at 613 869 5440 or



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