Andrea Hill is a Toronto lawyer
"The way individuals access cannabis for medical purposes is changing."
With this sparse statement, Health Canada introduced a new set of regulations, the Access to Cannabis for Medical Purposes Regulations (ACMPR), which will replace the Marijuana for Medical Purposes Regulations (MMPR) on Aug. 24.
Until now, the MMPR have been the official legal platform for Canada's medical cannabis industry. However, the federal government was obligated to rework them after a Federal Court decision last February found the MMPR unconstitutionally restricted patients' access to marijuana. Courts have consistently found that Canadians have a right to "reasonable access" to marijuana for medical purposes – but what "reasonable access" means is far from settled.
The ACMPR are the government's latest proposal for "reasonable access," and blend recognition of commercial licensed producers (LPs) – a product of the MMPR – with the ability (drawn from prior regulations) of authorized patients to either grow their own cannabis or appoint an individual "designated producer" to grow it for them.
The new regulations are an interim measure only: Health Canada has expressly noted that these regulations "are designed to provide an immediate solution" to the imminent demise of the MMPR. But the ACMPR nonetheless offer a tantalizing glimpse at the federal government's evolving policy on medical marijuana.
One clear statement is that, in the eyes of the federal government, the LP system is working. LPs will continue to be the exclusive large-scale producers of cannabis under the ACMPR. This is great news for LPs, their stakeholders and the patients who rely on them for their medicine. It is also a strong endorsement of their performance. With a potentially giant recreational market on the horizon, that is a very significant message to send.
The ACMPR also resurrect the ability of patients to grow their own cannabis plants. Home growing represents a tidy solution to the accessibility problems of the MMPR, but is not a constitutional right in itself. However, if patients responsibly manage this privilege, they may have a chance at keeping home growing in the longer term. Other jurisdictions such as Colorado, Washington and Oregon allow for home-based personal production alongside commercialized medical and recreational marijuana regimes.
One curiosity of the ACMPR is its recognition of designated producers, which are individual growers appointed by patients unable to grow their own cannabis. The role of the designated producer is important because many patients are too sick or lack the resources to grow cannabis on the scale they need. However, designated producers are different from patients' own home-grow operations in that the former are permitted to grow for many patients at once. Health Canada has confirmed that under the ACMPR, one designated producer will be permitted to grow for up to two patients, and up to four designated producers will be permitted to grow at the same address.
Those allowances reflect pre-MMPR laws and court decisions which recognized that designated producers would need to scale up and band together to provide a consistent source of medical marijuana to patients. However, those same policies led to enforcement challenges because Health Canada did not have the resources to supervise designated producers, and local authorities were left to fill the gap. Although many designated producers operated carefully and safely, the large scale of some operations, and the lack of oversight in general, made the system ripe for abuse.
The LP now serves as a new and improved designated producer – subject to intense federal regulatory compliance, quality control, and health and safety standards. Although Health Canada will oversee applications to become a designated producer under the ACMPR, supervision of designated producers will again be up to local authorities. For those authorities, co-ordinating a consistent approach to enforcement will be a monumental task and is probably not a realistic long-term solution. It follows that the role of designated producers may not be a long term one, either.
The ACMPR are a temporary measure only, but they are also suggestive of a broader policy narrative which supports LPs as a long-term answer to what "reasonable access" looks like.