Marijuana Legalization Status in Canada
Overview of the laws regulating medical and recreational marijuana uses in Canada and the Liberal Party legalization action plan.
To fully understand the legal status of marijuana in Canada, it is important to differentiate between medical and recreational marijuana use. There are currently an estimate of approximately 65,000 medical marijuana patients across Canada. Most of these patients have wondered what the legal status of marijuana in Canada was prior to making their decision to use it for medical purposes. Most of them probably questioned if it had the same status from province to province or city to city. These are major considerations in the initial decision process of medical marijuana patients. To answer these questions, it is essential to look at the legal history of marijuana as well as the current Liberal federal government’s position and action plan
Marijuana Federal Legal Status
At the present time in Canada, marijuana is still an illegal substance under the Controlled Drugs and Substances Act (CDSA) making it still illegal to consume recreationally. If I asked you what country was the first to legalize cannabis, what would be your answer? Did you say Canada? If so, then you got the correct answer! We were the first nation to legalize the use of medical marijuana. Indeed, a Canadian Court of Appeal decision in 2001 proclaimed medical marijuana prohibition unconstitutional. This key court decision paved the way for the Marihuana Medical Access Regulations (MMAR) set forth by Health Canada and implemented the same year. From June 2001 until March 31, 2014 when the MMAR were abolished and substituted with the Marihuana for Medical Purposes Regulations (MMPR), Canadians were allowed to obtain a license delivered by the Government, with prior approval of a physician, to legally possess and consume dried marijuana buds. During these years, only one strain of cannabis was available from a single supplier approved by the Government. For some very specific medical conditions, it was possible for patients to obtain an optional licence to grow their own cannabis plants or assign a specific grower to supply them their required medicine. It is estimated that approximately 38, 000 patients were delivered a license across the nation by the time MMAR were repealed.
With the new set of regulations underlined in the MMPR, commercial licensed producers can now grow and distribute dried cannabis to patients previously authorised by their physician. Once the medical document is filled by a doctor, the patient contact the licensed producer of preference, register and send the necessary medical documentation. Once approved, the dried cannabis is delivered by mail. Two of the major differences between the MMAR and MMPR is that there is no more license issued by Health Canada and medical marijuana patients can no longer grow their own cannabis plants. As of 2016, there are 32 licensed producers across the country that medical marijuana patients can chose from. The maximum amount of dried marijuana a patient can possess is the lesser of 150 grams or 30 times their daily dose. Edibles, concentrates and oils were not permitted in the original draft of the MMPR. Licensed producers under the MMPR are not allowed to operate a storefront such as a compassion club or a dispensary as per the regulations enforced in the MMPR.
Supreme Court of Canada Decision in R. v. Smith
Over the last few years since the MMPR were implemented, a few key decisions have been made in courts across Canada that have impacted the set of regulations and forced the Government to initiate changes. The first major decision came from the Supreme Court in June 2015 in R. v. Smith. It stated that medical marijuana patients holding the proper authorisation under the MMPR can now possess marijuana derivatives for their own use. Health Canada quickly reacted with the Section 56 exemption under the CDSA allowing licensed producers to produce and sell cannabis oil along with fresh marijuana buds and leaves. This was an excellent news for medical marijuana patients as they were no longer forced to smoke to consume their medicine and could now more easily decide on the best suitable way to consume their medicine. The list of authorized licensed producers for the sale of fresh marijuana and cannabis oil is smaller than the list of approved licensed producers under the MMPR. Out of the 32 MMPR approved licensed producers, only 22 can produce and sell fresh marijuana and cannabis oil.
Federal Court Decision in Allard et al v. Canada
In February 2016, Justice Phelan of the Federal Court declared the MMPR unconstitutional. The federal government must now re-write the regulations prior to August 24, 2016 (within 6 months of the decision) in order to respect the rights and freedoms underlined under the Canadian Charter of Rights and Freedoms. Justice Phelan also validated the role played by dispensaries in offering easier access to medical marijuana patients in his decision. Furthermore, patients that had obtained the optional licence to grow under the MMAR can continue to grow cannabis for their own use until further changes are made to the MMPR. This current period of unknown creates some uncertainty for the licensed producers as their business model revolves around the set of regulations included in the MMPR when it was first enacted. Since the government must now review the whole program, licensed producers are still hoping for the new changes to benefit both the patients and the licensed producers.
It is therefore possible to conclude that medical marijuana has been legal for over 15 years in Canada and there are still decisions made in courts across the country that will impact the regulations. At the moment, it is status quo with the MMPR still being followed while at the same time being declared unconstitutional and being re-written. Similarly, recreational marijuana use is illegal, however the Liberal government has declared its legalization shortly.
For a Canadian citizen with a physical illness that can be treated with medical marijuana, the process to obtain permission to order through a licensed producer is rather simple. The patient must have an existing condition along with a diagnostic and ask a physician to fill out the appropriate medical document detailing the dosage, the patient must then register with one of the approved licensed producers. The process itself isn’t too cumbersome, however the main challenge resides in finding a doctor that is willing to treat your physical ailment with marijuana.
Geographical Legal Enforcement Disparities
Many new and prospective patients enquire if marijuana laws are enforced the same way across the country. No wonder as these patients receive conflicting information on the news concerning compassion clubs and dispensaries that seem to be tolerated in Vancouver, yet were also recently torn down in Toronto. Legally speaking medical marijuana is regulated by the federal government and the law does not vary from province to province. Nevertheless, disparities can be noted in the enforcement of the law from city to city. According to Statistics Canada, for the year 2014, the average charges for marijuana possession for 100,000 inhabitants is 79. When looking closer to specific cities, notable differences can be established in the rate of charges for every 100,000 inhabitants. For example, the 3 cities with the lowest average of charges for marijuana possession are St. John’s (NL) with a rate of 11, St. Catharines-Niagara (ON) at 17 and Kingston (ON) at 20. On the other end of the spectrum, the 3 cities with the highest rate of charges for marijuana possession are Sherbrooke (QC) at 163, Gatineau (QC) at 188 and Kelowna (BC) at 251.
These statistics show that police forces across the country view and act differently when confronted with an individual possessing a small quantity of marijuana. It shows that some police departments will enforce the law more thoroughly. It also explains why Kelowna has the highest rate of charges as it is the RCMP that patrol the city while Vancouver has its own police force that seems to view the gravity of possessing marijuana differently and deciding to act accordingly. These variances will continue to exist across the nation until further steps are taken on the road to legalization. These marijuana possession charges are mostly for recreational use as medical marijuana patients have the necessary documentation to prove they have obtain their medicine legally.
Vancouver and Victoria
Vancouver is the only city in the country that has decided to adapt its bylaws to better represent its reality of having dispensaries and compassion clubs popping up everywhere. In June 2015, as the city counted over 100 unregulated dispensaries it decided to set forth a business licensing process to allow the first legal storefront selling marijuana. The city received hundreds of applications, however only a selected few respected all the guidelines established in the city bylaw. As such, a dispensary cannot be less than 300 meters from a school, a community center, neighborhood houses or another dispensary. Over 175 applications were received by the city of Vancouver to obtain a valid business license. The application process holds different steps and hoops to go through before being officially legal to operate. It was expected that less than two dozens of businesses would receive the business licence. The ones that did not receive the business licence were expected to close their business by the end of the grace period, at the end of April 2016. In November 2015, the city of Victoria also followed suit and implemented similar bylaws to better control the dispensaries on its territory.
Vancouver and Victoria are the only two cities in Canada that have decided to regulate compassion clubs and dispensaries even though recreational marijuana consumption and marijuana storefronts are still illegal under current federal law. Most other big cities across the nation such as Toronto, Ottawa and Montreal have also seen an increasing number of dispensaries and compassion clubs sprouting on their territory, although no other city councils have yet established additional bylaws to regulate them. As was seen recently in Toronto, the city has decided to enforce the law and visited many local dispensaries in May 2016, handing out fines and seizing inventory. Many dispensaries managers, owners and employees must now face charges in court.
Canada Marijuana Legalization Process
At the present time, the outlooks on the legalization of marijuana are optimistic as the Prime Minister Justin Trudeau and his team have officially announced on April 20, 2016 that they would present their marijuana legalization program in the spring 2017. The Liberals have refused any discussion of decriminalizing marijuana in the meantime. In June 2016, Thomas Mulcair and the NDP also put forward a motion for cannabis decriminalization that was rapidly shut down by the Liberals.
The action plan of the Liberals to legalize marijuana starts with a task force responsible to document the necessary actions to legalize, regulate and restrain access to marijuana. This task force is led by the parliamentary secretary to the justice minister, Bill Blair, who was also previously chief of the Toronto police for ten years. This task force will be responsible to consult experts across the country and are expected to report back their findings by November 2016, just in time for the Liberal government to consider their recommendations in the development of their marijuana legalization program for 2017
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