Marihuana for Medical Purposes A New Approach

History of Access to Marihuana for Medical Purposes R. v. Parker (Ontario Court of Appeal 2000) The facts The Charter The Remedy The MMAR- 2001

Marihuana Medical Access Regulations (2001)  No valid medical exemption = No valid criminal prohibition on possession (and possibly production)  Individuals can: o Grow for themselves (PUPL) o Grow for one other person (DPPL) o Buy from Health Canada (introduced after Hitzig, 2003)  Need a medical declaration from a doctor; OCA upheld this requirement in Mernagh  No maximum daily dosage/possession cap in MMAR

Unintentional Consequences of the MMAR  Exponential growth in the program: 2002 = 477 participants April 16, 2013 = 29,888 participants—at time of repeal, approximately 38,000 participants 12% access HC marihuana supply 5% indicate HC supply but do not purchase 67% produce for themselves under a PUPL 16% obtain marihuana from a DPPL  Avg. daily amount approx grams (December 12, 2013) 18g/day is approx. 88 plants indoors under the MMAR formula  Ongoing Charter challenges What is the scope of the “right” to medical marihuana and how has it evolved?

Reform Objectives  Treat marihuana as much as possible like other drugs/narcotics  Reduce risks to public health, security, safety of Canadians by eliminating personal production  Improve quality for the individual by regulating sanitation and production practices for medical marihuana as with drugs in the FDA  Restore Health Canada to role of regulator

MMPR Approach: Licensed producers  LP Notification of local authorities (municipality, police, fire officials Sections 38, 39, 40) Upon application and any change in status to licence LP to provide certain information to Canadian police force in course of an investigation (s. 101) LP Notification to licensing authority re health care practitioner (Section 102)  Minister authorised to provide certain information to Canadian police force, to customs officers to International Narcotics Control Board (Sections )  Physical security requirements for both perimeter and areas with cannabis (Sections 41-51)  Security clearances for key personnel (Sections ) Designated drug and criminal offences Assessment of risks to the integrity of control of cannabis, e.g. diversion to illicit markets  Good production practices (Sections 52-63) Similar to those for natural health products, food and drugs under the Food and Drug Regulations Sanitation, quality controls, consistency of THC and CBD  No advertising to the general public Ss. 3, 9 of Food and Drugs Act - no false or misleading ads, e.g. for a specific therapeutic use without evidence S.70 Narcotic Control Regulations  Inspections: per MMPR s. 9 and CDSA, s. 31

LP: Activities and Requirements Dried marihuana only (Smith on appeal to the SCC) Indoor grow only; no dwelling houses MMPR does not include zoning requirements: but LPs to notify local authorities on application, issuance, renewal, amendment, suspension, reinstatement or revocation of the licence Notifications must be addressed to a senior official of the local authority (municipality, fire and law enforcement)—specify activities and address of the site

Compliance and Enforcement Inspection  Pre-licence inspection  Compliance Inspections increased number of dedicated inspections within the first year to establish a compliance and enforcement regime  Non-compliance and corrective action plans MMPR provide for suspensions, revocations and recalls  Reporting LPs must submit reports to HC Information analysed and fed into ongoing C & E planning

Allard: MMPR Challenge and Injunction Order  Trial 3 weeks starting February 23, 2015, challenging: Marihuana production by licensed producers only o Under MMPR= no more growing in dwelling houses; indoor growing only o Under MMPR= inspections for compliance and enforcement, security, quality Restriction to production and distribution of dried marihuana, and distribution by mail/courrier Caps on possession Indoor cultivation only

Allard Interlocutory Injunction Order Order issued March 21, appeal/cross appeal to be heard November 24, 2014 o MMAR repealed March 31, 2014; MMPR in effect o But, certain ATPs and PUPL/DPPLs extended under “frozen” terms, so marihuana growing in dwelling houses continues by virtue of “Allard order” o 150 gram possession cap Individuals must have held a valid Authorizations to Possess under the MMAR on March 21, Individuals must have held a valid Personal-Use Production Licence or Designated-Person Production Licence under the MMAR on, or after, September 30, 2013, where there is also an associated valid ATP as of March 21, Individuals with a medical need who do not fall within the scope of this court order and who have the support of a licensed healthcare practitioner may register with a licensed producer under the MMPR.

Information Sharing In disclosing personal information, HC is guided by the Charter of Rights and Freedoms & the Privacy Act Both seek to uphold balance between the right to privacy and Canada’s interest in advancing its goals (in HC/CDSA context =protect public health and safety) Charter s. 8 provides everyone has the right to be secure against unreasonable search and seizure; this guarantee protects against state intrusion into a “reasonable expectation of privacy” in one’s person, surroundings and information. The “totality of the circumstances” must be considered to determine where there is a reasonable expectation of privacy. There must be reasonable lawful authority for an intrusion (common law or legislation and must be reasonable: that is intrude no more than necessary & proportional). The Privacy Act protects information about an identifiable individual that is recorded in any form and information that many not on its face identify an individual, but could be linked with other information to identify an individual. Information can be released on consent of the individual or per s. 8 exemptions from the application of the Act MMPR information disclosure provisions are designed to allow disclosure of information in compliance with both the Charter and the PA; HC makes case by case decisions re requests for information sharing

Resources Marihuana for Medical Purposes Regulations MMPR and Regulatory Impact Statement at CG II June 19, Health Canada Website: Medical use of Marihuana and Injunction Order Information for Health Care Professionals Directive on Physical Security Requirements for Controlled Substances eng.php Guidance Document: Building and Production Security Requirements for Marihuana for Medical Purposes Frequently Asked Questions