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Federal Court Strikes Down Marihuana for Medical Purposes Regulations

Feb 25, 2016

In a decision issued on 24 February 2016, the Federal Court struck down Health Canada’s Marihuana for Medical Purposes Regulations (“MMPR”).  The Court found that the MMPR restricted the Plaintiffs’ access to medical marihuana, in contravention of Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) and that such restriction was not justified in accordance with the principles of fundamental justice. 

The MMPR were issued by Health Canada in 2013 to replace the Marihuana Medical Access Regulations (“MMAR”).  The MMAR allowed licensed individuals to obtain medical marihuana by growing their own supply, designating another person to grow for them or purchasing the product directly from Health Canada through a private company under contract with the federal government.

Health Canada contended that the MMPR were necessary to address the following concerns: a rapid increase in the number of license holders authorized to produce an increasing amount of marihuana; public health and safety concerns related to grow operations located in dwellings resulting in mould, fires, thefts, harms from fertilizers, odours and diversion to the black market; regulatory wait times; and administrative and financial burden on the federal government.

The Court concluded that Health Canada had failed to justify the Charter breach caused by the MMPR and made the following key evidentiary findings:

  • Health Canada failed to collect any data with respect to public safety issues, including fires, thefts, harms from fertilizers
  • Health Canada failed to establish that the Plaintiffs, or a substantial number of licensees, over-produced the amount authorized by their licences
  • The federal government would be the major beneficiary of the cost savings derived from the repeal of the MMAR by the MMPR, with cost burdens borne by patients
  • Health Canada had no information that marihuana was: being diverted to the black market; produced unsafely, caused fires, produced mould or led to negative health consequences in patients

Notably, the Court also found that Health Canada’s assertion that it had received complaint letters from certain British Columbia and Ontario districts, fire officials and neighbours of MMAR licence holders vague and not extensive.  In fact, municipal feedback to Health Canada was limited to eight instances, six from BC and two from Ontario.

The Court provided Health Canada with a six month window to respond to the decision, during which time it expects the federal government to enact a new or parallel medical marihuana regime to address the Charter issues.

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Author(s): Peter Gross

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