Marihuana Medical Access Regulations - Regulations Amending

 
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Vol. 143, No. 11 — May 27, 2009

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SOR/2009-142 May 14, 2009

CONTROLLED DRUGS AND SUBSTANCES ACT

Regulations Amending the Marihuana Medical Access Regulations P.C. 2009-746 May 14, 2009

Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to subsection 55(1) of the Controlled Drugs and Substances Act , hereby makes the annexed Regulations Amending the Marihuana Medical Access Regulations.

REGULATIONS AMENDING THE MARIHUANA MEDICAL ACCESS REGULATIONS

AMENDMENT

1. Paragraph 41(b.1) of the Marihuana Medical Access Regulations is replaced by the following:

(b) if the designated person would become the holder of more than two licences to produce; or

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive Summary

Issue: Subsection 41(b.1) of the Marihuana Medical Access Regulations (MMAR) stipulates that no person shall hold more than one licence to produce. On January 10, 2008, the Federal Court, in coming to a decision in Sfetkopoulos, Dora et al v. AG of Canada(Sfetkopoulos), declared that subsection 41(b.1) is invalid on the grounds that it infringes on section 7 of the Canadian Charter of Rights and Freedoms (the Charter). In his ruling, Justice Strayer found that the one grower to one user ratio set out in this provision unjustifiably limits the ability of authorized persons to access their marihuana for medical purposes. This decision was confirmed in appeal by the Federal Court of Appeal, on October 27, 2008.

Although the Government sought leave to appeal to the Supreme Court of Canada (SCC) and a stay of the execution of the Federal Court of Appeal decision, these requests were dismissed on April 23, 2009, and subsection 41(b.1) became invalid immediately. This has created a significant regulatory void in that the Minister of Health no longer has the authority to restrict how many licences to produce a designated person can hold, and thus the size of some marihuana for medical purposes production operations.

Description: This regulatory initiative will amend the MMAR by setting the limit on the number of licenses to produce a designated person can hold to two (2). This is an interim measure intended to address the regulatory void created by the SCC’s dismissal of the Government’s leave to appeal of the Federal Court of Appeal decision, while the Marihuana Medical Access Program (the Program) and the MMAR that underpin it are reassessed. Such a review is required given that the Program was never intended to facilitate the widespread, potentially large-scale production of marihuana for medical purposes.

Cost-benefit statement: As will be described further below, marihuana cultivation at any level is not without impacts in the form of potential risks to public health, safety and security of not only those persons directly involved, but also those living at the same address, adjacent residential units, and/or in the surrounding community. The most significant of these is the risk that the larger scale production of marihuana for medical purposes may facilitate diversion to the illicit market. Government intervention to introduce a new limit on the number of licences to produce a designated person can hold will provide benefits by constraining the quantity of marihuana produced for medical purposes under the auspices of the designated person production licences issued under the MMAR.

Business and consumer impacts: While implementation of this measure will result in increased administrative burden on Health Canada, the increase will be minimal as systems and processes to administer the MMAR are already in place. The system currently used to track designated persons and authorized persons will be updated.

While the introduction of a new limit on the number of licences to produce a designated person can hold respects the original intent of the Program, i.e., enabling Canadians with life-threatening or chronic medical conditions to access a legal source of dried marihuana for their personal use, the amendments also provide authorized persons with more choice as to how to obtain their legal supply.

That said, this incremental change may be(seen by some authorized persons, designated persons and/or marihuana legalization advocates as an infringement of their rights under the Canadian Charter of Rights and Freedoms, and may elect to pursue legal challenges in this regard. This may impose costs on the Government in the form of increased burden on law enforcement and the court system.

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