The Federal Government Announces the Replacement of the Marihuana for Medical Purposes Regulations

On August 24, 2016, the federal government repealed the Marihuana for Medical Purposes Regulations (MMPR) and replaced them with a new set of regulations entitled the “Access to Cannabis for Medical Purposes Regulations” (ACMPR).  The MMPR allowed for the issuance of federal licences permitting the commercial production and distribution of marihuana for medical purposes.  It replaced a previous set of regulations known as the Medical Marihuana Access Regulations (MMAR) which permitted individuals with a prescription for medical marihuana to obtain a licence to grow their own marihuana through a personal production licence, or to designate a third party to grow it on their behalf through a designated person production licence.  The intention of the MMPR was to put an end to this system and replace it with a system where marihuana could only be obtained from federally licensed commercial suppliers. 

However, the MMPR was successfully challenged in Federal Court of Canada in  Allard v. Canada, in which the court ultimately found that the requirement to obtain medical marihuana solely from a licensed producer violated medical marihuana users’ rights under section 7 of the Canadian Charter of Rights and Freedoms.  The court gave the federal government six months to create a new regulatory system.  This six-month period expired on August 24, 2016. The court’s decision in Allard resulted in a situation where federally licensed commercial growers were able to continue to produce and distribute marihuana under the MMPR, while at the same time individuals who had previously been issued personal production licences or designated person production licences under the MMAR were able to continue with those previous arrangements.

The ACMPR basically formalizes the court-imposed status quo under Allard, by permitting federally licensed companies to produce and distribute medical marihuana while at the same time permitting persons with prescriptions for medical marihuana to apply for permission to grow a limited amount for their own use, or to designate another person to grow that amount on their behalf.

What do these new regulations likely mean for local governments?  Aside from having to distinguish between yet another similarly named set of regulations, the ACMPR does not appear to have significantly altered the status quo.  For example, the ACMPR does make the storefront sale of medical marihuana legal in Canada.

Under the ACMPR, Health Canada will continue to issue commercial licences for the production and distribution of medical marihuana. Commercial licences previously issued under the MMPR are continued under the ACMPR. Some zoning bylaws have imposed restrictions on marihuana production facilities by making specific reference to facilities licenced under the MMPR. Such bylaws may need amendments to clarify that the use that is intended to be regulated is the production of marihuana under a commercial licence, rather than production by an individual for personal use, as the ACMPR creates three different circumstances under which a permit to grow medical marihuana can be issued.

In regards to medical marihuana users who grow marihuana in accordance with an approval given to them by Health Canada, the situation is similar to the status quo in that in most circumstances zoning powers cannot be used to prevent an individual from growing marihuana at their own residence for their own personal use.  However, local governments continue to have the authority to regulate the land use aspects of the commercial production of medical marihuana.