Facts
Owen Smith, head baker of the Victoria Cannabis Buyer’s Club, was charged with producing cannabis derivatives under the Controlled Drugs and Substances Act (“CDSA”) ss. 4(1) and 5(2). Smith produced edible and topical marihuana derivatives for sale to members of the compassion club. It was not for his own use. At the time of the incident, Health Canada had made medicinal marihuana available to qualified patients pursuant to the Medical Marihuana Access Regulations (“MMAR”). However, cannabis resins and derivatives were not included in the legislation, an omission symptomatic of the overly restrictive prohibition on marihuana use in Canada. Thus, qualified patients under the MMAR and the current Marihuana for Medicinal Purposes Regulations (“MMPR”)1 were forced to ingest their medicinal marihuana through inhalation or face possible criminal prosecution under the CDSA.
Health Canada attempted to create a scheme by which patients could access cannabis, but arbitrarily drew the line at derivatives of cannabis. Making a tea, tincture, hash, or producing butter for edibles – anything that would separate the resin glands from the plant material – would turn a legal medicine into a prohibited Schedule II substance. Importantly, for many patients including children and the elderly, smoking medicinal marihuana is not the optimal method to ingest their medicine. These patients were forced to choose between their health and the law.
Decision
Forcing a patient to ingest their medicine through inhalation is untenable and unreasonable. The Supreme Court of Canada unanimously (7:0) agreed2. The limitation of access to medical marihuana only in its dried form unjustifiably violates the guarantee of life, liberty and security of the person contrary to section 7 of the Charter of Rights and Freedoms. Expert evidence from the defence did more than establish a subjective preference for oral or topical treatment forms. The decision to use marihuana derivatives for treatment of serious health conditions is medically reasonable.
The Court concluded that the prohibition on possession of non-dried forms of medical marihuana was arbitrary and thus the restriction was struck. The Court declared that ss. 4 and 5 of the CDSA are of no force and effect to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes. The Court went on to deny the Crown’s request to suspend the declaration of invalidity pending Parliament’s response to the decision on the basis that medical patients would be left without access to a lawful medical treatment, and law enforcement would be left in limbo.
Impact
Industry observers believe the demand for cannabis extracts and derivatives far surpasses that of dried marihuana. Everything from cannabis suppositories to creams, eye drops, and edible preparations, using infinite combinations of cannabinoids and terpenes are now available for possession for those with medical authorization. Because the majority of patients diagnosed with serious and chronic pain (a condition that lends itself to marihuana treatment) are elderly and will likely want to avoid the social stigma associated with smoking marihuana, there is little doubt that before long this new market will dwarf medical raw, dry plant sales. Further demand for medicinal marihuana will develop as children can now safely consume the medicine.
Under the new access regime, the MMPR, Licensed Producers3 (LPs) are still limited by their licence to producing and distributing cannabis in its dried form. Health Canada will need to act fast to fill this void, or risk stunting the growth of this new industry. One commentator in the field suggested that the current LPs band together and produce cannabis derivatives and edibles, contrary to their licence, to force Health Canada to act quickly, although such an act of unity is unlikely. If Health Canada fails to permit LPs to produce and distribute cannabis derivatives, authorized medical patients will likely turn to their community and compassion clinics to fill the market void, and a large segment of the medicinal marihuana industry will remain a home grown business contrary to the purposes4 of the new MMPR. Medical patients, with their newfound immunity from criminal prosecution, will be forced to produce cannabis derivatives for themselves and each other.
In this light, it is our opinion that the Court did not go far enough in their decision. The Court should have extended immunity for production of cannabis derivatives to LPs under the MMPR scheme, thus enabling access to medicinal marihuana for authorized patients who utilize commercial LPs.
UPDATE
Health Canada has responded positively (if not with some hostility) to the decision of the Supreme Court of Canada, allowing Licensed Producers (LPs) to produce and distribute cannabis oil extracts. The announcement can be found here.
Daniel Nashid
Barrister & Solicitor
416.892.2509
[email protected]
- The regulations can be accessed here.
- The full decision is available here.
- List of authorized Licensed Producers under the Marihuana for Medical Purposes Regulations available here.
- The Marihuana for Medical Purposes Regulations (MMPR) came into force in June 2013. The regulations create conditions for a commercial industry that is responsible for the production and distribution of marijuana for medical purposes. They also make sure that Canadians with a medical need can access quality controlled marijuana grown under secure and sanitary conditions.