The Hazy State Of Marihuana Regulation In Canada

With attitudes changing and seemingly mixed messages coming from our courts, police, politicians, and medical community, it is easy to see why the current legal status of medical marihuana may seem hazy. This article will provide a brief history of the changing regulatory regime in Canada, will shed light on the gray area in which "dispensaries" in the City of Vancouver (among other places) are proliferating, and will identify important legal issues that participants in the industry should consider.

First, it should be said that the possession and consumption of recreational marihuana in Canada is unquestionably illegal. The law is clear. Marihuana has long been a controlled substance listed in Schedule 2 of the Federal Controlled Drugs & Substances Act (the "CDSA"). However, in 2000, the Ontario Court of Appeal ruled in a case called R. v. Parker (2000) 49 O.R. (3d) 481 (C.A.) that the prohibition on possession, production, and sale of marihuana was unconstitutional because it did not contain an exception for people who required marihuana for treatment of medical conditions. The result of the Parker ruling was the Federal government introducing the Medical Marihuana Access Regulations (the "MMAR") in 2001.

Federal Regulation

The MMAR: Cheap and Easy Access to Medical Marihuana

The MMAR created a licencing scheme allowing individuals with a prescription to obtain an Authorization to Possess, or an "ATP". An ATP allowed its holder to obtain medical marihuana through three different avenues: a Personal-Use Production Licence, a Designated-Person Production Licence, or by purchasing dried marihuana directly from Health Canada, which contracted with a private company to produce and distribute marihuana.

The MMAR regime was criticized for allegedly allowing for the diversion of marihuana into the black market, as well as for its lack of quality and content control mechanisms. Further, medical professionals were reluctant to prescribe products of unknown origin and strength. For these reasons, among many, the MMAR system was seen by the Federal government as lax and ineffective.

The MMPR: Creating a Commercial Medical Marihuana Industry

The Federal government replaced the MMAR with the Marihuana for Medical Purposes Regulation (the "MMPR"), which came into force in April 2014. The MMPR required that all medical marihuana users purchase their marihuana from authorized, large-scale producers. Health Canada's stated goal in enacting the MMPR was to...