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In 2013, the federal government repealed the MMAR and enacted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
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
While the six month suspension is in place:
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.
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
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
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.
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