Article by Hugo Alves & Mike Lickver, Lift
On August 24, 2016, in response to Justice Phelan’s judgment in the case of Allard v Canada (“Allard“), Health Canada implemented the Access to Cannabis for Medical Purposes Regulations (the “ACMPR“), replacing the Marihuana for Medical Purposes Regulations (the “MMPR“). In Allard, Justice Phelan found the MMPR to be unconstitutional due to the restrictions it placed on a patient’s ability to reasonably access medical cannabis; however, the declaration of invalidity was suspended for six months to allow the government to establish a new regime for access to medical cannabis.
Unlike the MMPR, which require patients to access medical cannabis solely from a licensed producer (“LP“) (with very limited exceptions), the ACMPR allow patients to cultivate cannabis for personal use or to designate an individual to cultivate on their behalf. The personal cultivation framework is similar to the old Marihuana Medical Access Regulations (the “MMAR“). The ACMPR also incorporate the various exemptions issued by Health Canada pursuant to the Controlled Drugs and Substances Act (the “CDSA”) in response to the Supreme Court ruling in R v Smith, which allowed patients to obtain and possess cannabis in forms other than dried marihuana. As a result of these changes, the ACMPR have expanded the ways in which patients are able to access medical cannabis.
The following are four key takeaways that medical cannabis patients, particularly those who intend to cultivate their own cannabis under the ACMPR, should consider.
Obtaining starting materials and an interim supply
To be eligible to produce or designate someone to produce cannabis for medical purposes an authorized patient must register with Health Canada (a “Registered Person“). Registered Persons will be able to purchase starting materials and an interim supply of medical cannabis from an LP. Registering with an LP as a Registered Person is a similar process to that used by an ordinary patient. The major difference is that instead of using a medical document to register like an ordinary patient, a Registered Person must submit a copy of their Health Canada registration (Registered Persons are reminded not to submit their original Health Canada registration) to the LP in order to obtain starting materials and an interim supply of medical cannabis while waiting for their own harvest. Health Canada has not placed a limit on the number of times a Registered Person can access an interim supply, provided they stay within their possession limits, and it has recognized that access to an interim supply from an LP may be necessary even after a Registered Person’s personal crop matures.
Multiple medical documents
As a general rule, the ACMPR (similar to the MMPR) prohibits a patient from obtaining their supply of medical cannabis from multiple sources (i.e. multiple LPs) on the basis of a single medical document. This requirement results in a patient being able to register with only one LP at a time. While not explicitly stated in the ACMPR, the Regulatory Impact Statement (which accompanies the ACMPR) provides that a patient may wish to discuss “splitting” a medical document with their health care provider, provided that the patient stays within their prescribed possession limits. The recognition of the desirability of accessing cannabis from multiple LP sources is a step in the right direction for patient care. As such, if a patient desires more than one source of supply, either from multiple LPs or a combination of LPs and either personal or designated production, the individual may discuss with his/her health care practitioner the possibility of obtaining separate medical documents.