The Really Good News: For those who hold an MMPR medical document (and, for now, those subject to the R. v. Allard injunction) (I’ll refer to all of you collectively as “authorized users”), it is no longer an offence to possess marijuana derivatives.
Some More Good News: The Supreme Court of Canada held that:
- -“the decision to use non-dried forms of marihuana for treatment of some serious health conditions is medically reasonable”
- -“by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the law...infringes security of the person”
- -“the criminalization of access to the treatment in question infringes liberty and security of the person”
- -“the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care”.
Statements of this nature by the Supreme Court of Canada means that derivatives are here and they are here to stay....but...
The Not-So-Good News: On a strict reading of the decision, it is still an offence (under s.7 of the Controlled Drugs and Substances Act (“CDSA”)) for anyone to “produce” marijuana derivatives. I know, it’s kind of an absurd result. Obviously, before you can possess a derivative, someone has to produce it.
What Does This Mean?: Practically speaking, I don’t foresee any authorized users being charged with a production offence under s.7 of the CDSA for making their own derivatives (unless, perhaps, they have engaged in a really stupid and dangerous method of production). However, the biggest disappointment with this decision is that it does not permit licensed producers or anyone else to produce marijuana derivatives. The act of producing derivatives remains an offence under s.7 of the CDSA. Is this what the Supreme Court intended? I have no idea. But I’m willing to bet that Health Canada will interpret the decision as restrictively and narrowly as possible.
The Lingering Questions: Are authorized users now permitted to possess an unlimited amount of marijuana derivatives, or should they be limited to possession of an ‘equivalent’ amount to what their medical document/authorization to possess permits? I don’t purport to know how you would determine what an equivalent amount is. But if there is no limit, then doesn’t this undermine the MMPRs?
All of the restrictions in the MMPRs (maximum possession of 150 grams, purchases limited to amount stated in medical document) and restrictions put on physicians by their regulatory bodies (start ‘low and slow’, etc.) are thrown out the window if you can then possess (and consume) an unlimited amount of derivatives. And if a medical document equates to permission to possess unlimited derivatives, will physicians be less willing to provide them? Will physicians try to have (or will they be required to have) patients enter into consent agreements which prohibit or limit the patient’s use of derivatives? Does the decision apply only to derivatives made from ‘legally’ obtained dried marijuana? As you can see, I still have lots of questions.
What Happens Next?: Health Canada will have to provide their position on the answers to some of these questions and, most importantly, the question of whether they will now regulate (and thus permit) the production of marijuana derivatives. I’m not holding my breath, at least not before the next federal election. And I expect we will see more litigation on this issue, unfortunately.
FOR INFORMATIONAL PURPOSES ONLY. THIS DOES NOT CONSTITUTE LEGAL ADVICE.
Featured image via Adam Greenblatt/Sante Cannabis