Federal court finds that the Marihuana for Medical Purposes Regulations are unconstitutional

In a decision released on February 24, 2016, Allard v. Her Majesty the Queen in Right of Canada, 2016 FC 236, the Federal Court declared the entire Marihuana for Medical Purposes Regulations (the “MMPR”) to be unconstitutional. The decision followed a challenge brought by four medical marihuana users who argued that the regime imposed by the MMPR restricted their access to medical marihuana, thereby violating their rights to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.

The Controlled Drugs and Substances Act criminalizes the production, distribution and possession of marihuana.

In 2001, the federal government enacted the Marihuana Medical Access Regulations (the “MMAR”), which permitted individuals who had the support of a physician to obtain an authorization to possess (“ATP”) marihuana for medical purposes. Under the MMAR, ATP licence holders could obtain marihuana by personally producing it, by obtaining it from a designated producer or by obtaining it from Health Canada.

In 2013, the federal government repealed the MMAR and enacted the MMPR in their place. The MMPR restricts the right to produce and distribute medical marihuana to licenced producers who can comply with strict security requirements which are imposed on the production of other types of medications. Patients can only obtain medical marihuana by mail order from licenced producers.

At the time of enacting the MMPR, the federal government indicated that a new medical marihuana regime was needed because of, among other things, negative impacts on public health, safety and security arising from the growth of medical marihuana in residential homes. In the years leading up to the enactment of the MMPR, local governments and police forces advised the federal government that the growth of medical marihuana in residential homes contributed to a number of issues including: unsafe building alterations, the use of dangerous goods in quantities prohibited by fire codes, the growth of mould and fungus, the emission of unwanted odours and diversion of marihuana into the black market.

In Allard, the federal government argued that the enactment of the MMPR was justified for reasons of public health, safety and security. Unfortunately, however, the Federal Court found this argument to be unsupported by the evidence. In the court’s view, the negative impacts on public health, safety and security alleged by the federal government either did not exist or were remediable, and ultimately did not justify the imposition of a new medical marihuana regime which restricts patients’ access to medical marihuana by prohibiting personal production and prohibiting certain means of consumption.

In the result, the Federal Court declared the entire MMPR to be invalid, but suspended this declaration for six months to give the federal government time to enact a new or parallel medical marihuana regime.

While the six month suspension is in place:

1. Persons who held valid personal-use production licences or designated-person production licences as of September 30, 2013, or who were issued such licences between September 30, 2013 and March 21, 2014, can continue to produce medical marihuana in their homes pursuant to those licences, as the Federal Court order permitting this remains in effect. We note that while the terms of the Federal Court order suggest that it only applies to the Allard plaintiffs, both the Allard plaintiffs and the Government of Canada have interpreted the order as applying to all persons who held valid personal-use production licences or designated-person production licences during the specified time period.
2. Persons who do not benefit from the Federal Court order mentioned above can only legally produce marihuana in production facilities approved under the MMPR. Medical marihuana dispensaries remain unlawful and those who run them may be subject to prosecution under the Controlled Drugs and Substances Act.

After the six month suspension is over, local governments’ ability to regulate the location of medical marihuana grow-ops will be restricted, as the Allard decision effectively means that some level of personal production must be permitted by the federal government.

The federal government has yet to announce whether it will appeal the decision, or whether it will begin crafting a new or parallel medical marihuana regime.

Authored by Kathleen Higgins and Erika Lambert.