Victory for growers & patients in medical marijuana decision, but what's next?

Presented by: Trina Fraser

WHAT IS THE CASE ABOUT?

• Govt decision to transition from Marihuana Medical Access Regulations (MMAR) to Marihuana for Medical Purposes Regulations (MMPR)

• Elimination of personal cultivation licences and move to access of medical cannabis exclusively via licensed producers

WHO ARE THE PLAINTIFFS?

1. Neil Allard – 60 years old – chronic fatigue syndrome – ATP/PPL - prescription 20 grams per day

2. Shawn Davey – 38 years old – permanent brain injury from MVA - ATP/PPL - prescription 25 grams per day

3. Tanya Beemish – 27 years old – Type 1 diabetes and gastroparesis - ATP – prescription 5 grams per day

4. Dave Hebert – 32 years old – c/l spouse of Ms. Beemish - DPL

WHAT WERE THE PLAINTIFFS SEEKING?

1. Exemption from relevant provisions in CDSA2. Go back to MMAR

• Strike down MMPR (or aspects thereof, including “dried marihuana” restriction, possession limit, etc.)

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

• 1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

• 7) Everyone has the right to life, liberty and security of

the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

ANALYSIS

• Was s.7 engaged? YES• Liberty: – (1) right not to have one’s physical liberty endangered by risk

of imprisonment (if they must purchase outside of MMPR due to affordability/strain preference or exceed 150g);

– (2) right to make decisions of fundamental personal importance (direct medical treatment)

• Security: – no access to medication if you cannot access an LP, resulting

in physical/psychological suffering

ANALYSIS• Are the restrictions on access “in accordance with the

principles of fundamental justice”? NO• Objectives of MMPR: (1) reduction of risk to public health and

safety; (2) improved access to medical cannabis• Personal cultivation risks alleged by govt: Fire, mould, theft,

violence, diversion• No rational connection found between restrictions and risk

reduction• Access was not improved and in fact was further restricted• Therefore MMPR is arbitrary and overbroad, thus contrary to

principles of fundamental justice

ANALYSIS• Is the infringing MMPR saved by s.1? NO• Cannot be “demonstrably justified in a free and democratic

society”• “Plaintiffs have…demonstrated that cannabis can be produced

safely and securely with limited risk to public safety”• Fire risk can be addressed by compliance with electrical safety

requirements• Mould risk can be addressed with proper ventilation systems• Theft and violence risk can be addressed with a security system• Risk of diversion exists with LPs as well• Therefore MMPR declared to be invalid

EVIDENCE

• Judge’s findings based upon acceptance of Plaintiffs’ evidence and rejection of much of the govt’s evidence

• Key witness found to be “so philosophically against marihuana…that his Report lacked balance and objectivity…His assumptions and analysis were…flawed…The factual basis of his various opinions was uncovered as inaccurate”.

EVIDENCE

• “dried marihuana” restriction moot due to SCC decision in R. v. Smith

• Max possession to 150 gram upheld• “[t]he possession cap still allows one to

possess more than their necessary amount of marihuana”

REMEDY• Not feasible to strike out portions of the MMPR to achieve

constitutionality• Not feasible to reinstate MMAR• Court not willing to suspend offence provisions of the CDSA

vis-à-vis medical cannabis• “The appropriate resolution, following the declaration of

invalidity of the MMPR, is to suspend the operation of the declaration of invalidity to permit Canada to enact a new or parallel medical marihuana regime”

• 6 month suspension• Injunction continues for now

MARCH 21/14 INTERIM ORDER

• 3-part test for interim injunction• Certain ATP/PPL/DPL’s remain in force pending

trial• Possession limited to maximum of 150 grams

WHO FALLS WITHIN THE INJUNCTION?

• Plaintiffs holding:– (1) valid ATP as of March 21/14;

• AND– (2) valid PPL or DPL as of September 30/13 (or

PPL/DPL issued after September 30/13).• Health Canada decided to treat the injunction

as applying to all MMAR’s who met criteria but interpreted the order as requiring both criteria to be met

UNCERTAIN IF INJUNCTION APPLIES TO YOU?

• Seek advice from a lawyer• “Health Canada does not provide legal advice

as to the validity of licences or authorizations under the MMAR. Individuals wishing to determine whether they fall under the Federal Court Order should seek independent legal advice.”

ATTEMPTS TO VARY THE INJUNCTION ORDER

• Problems identified by Plaintiffs (2 of which didn’t qualify):– (1) Some MMAR’s “fell through the cracks” due to

qualifying dates– (2) No ability to change address

• Crown appealed & Plaintiffs cross-appealed• Sent back to Justice Manson for

reconsideration

ATTEMPTS TO VARY THE INJUNCTION ORDER

• Order reconfirmed by Justice Manson (“I specifically chose the relevant transitional dates to limit the availability of the injunctive relief…[T]he remedy I granted was intended to avoid unduly impacting the viability of the MMPR and to take into consideration the practical implications of the MMAR…no longer being in force”)

• Appeal of this ‘reconsideration’ was later abandoned• Motion to vary dismissed by Phelan J. on July 15/15

WHAT DOES THE DECISION MEAN FOR PATIENTS?

• It does not mean you have an unfettered right to cultivate• For now, NO CHANGE (whether or not you fall within

injunction)• Govt has until March 25th to appeal to Federal Court of

Appeal• If it does appeal, they will apply for a stay of the 6 month

deadline• If it doesn’t appeal, has 6 months to implement new

version of MMPR which includes personal cultivation right

WHAT WILL PERSONAL CULTIVATION LOOK LIKE?

• At this point we don’t know• Could be very similar to MMAR or very different• Will have to address issues such as production limits, possession

limits, permissible locations• Will a medical document be required?• Will designated growers be permitted?• Will multiple patients/DGs be permitted to grow at the same

address?• Will we see additional restrictions at municipal level?

WILL THIS AFFECT MMPR LP’s?

• Personal cultivation will have little effect• Bigger challenges are dispensaries and

doctors• Big question for LPs is whether the

decision will precipitate other MMPR changes

WHAT OTHER CHANGES COULD WE SEE?

• Retail MMPR sales (pharmacies, dispensaries)• Centralized registration system for MMPR• Relaxed security requirements for LPs

Contact Info

Trina Fraser, PartnerBrazeauSeller.LLP

www.brazeauseller.comtfraser@brazeauseller.com

Twitter: @trinafraser

Canadian Cancer Survivor Network Contact Info

Canadian Cancer Survivor Network1750 Courtwood Crescent, Suite 210Ottawa, ON K2C 2B5Telephone / Téléphone : 613-898-1871E-mail jmanthorne@survivornet.ca or mforrest@survivornet.ca Web site www.survivornet.caBlog: http://jackiemanthornescancerblog.blogspot.com/Twitter: @survivornetcaFacebook: www.facebook.com/CanadianSurvivorNet Pinterest: http://pinterest.com/survivornetwork/