Canadians support the legalization of marijuana for all sorts of reasons. Parents fear their kids might end up with criminal records. Seniors want respite from chronic pain. Police chiefs and criminologists acknowledge that it’s really only criminals who profit from prohibition.

Yet in court, the only successful argument for expanding access to cannabis has been the case for medical marijuana. Politics will soon intervene. An expert task force led by former Liberal cabinet minister Anne McLellan will make recommendations this November on how the Liberals can implement their promise to legalize pot for recreational use. The government has promised legislation by next spring.

The question now is, once recreational cannabis consumption is no longer a crime, will there be any reason to maintain a separate system for medical marijuana? The answer, from the perspective of constitutional law, is almost certainly “no.”

So, despite their nearly two decades of court victories, medical marijuana users may soon find themselves without privileged access to pot.

Once recreational cannabis consumption is no longer a crime, will there be any reason to maintain a separate system for medical marijuana?

Sixteen years ago, the Ontario Court of Appeal ruled that without an exemption for medical use, the blanket prohibition on the cultivation and possession of marijuana violated the Charter right not to be deprived of liberty or security of the person except in accordance with the principles of fundamental justice.

Just three years later, however, the Supreme Court of Canada upheld the prohibition of simple possession for recreational purposes. “There is no free-standing constitutional right to smoke ‘pot’ for recreational purposes,” wrote Justices Charles Gonthier and Ian Binnie for the majority.

Marijuana litigation has since focused on defining the limits of the constitutionally required medical exemption. Notably, the Supreme Court of Canada held last year that the government could not exclude non-dried forms of medical marijuana, such as edibles and oils, from its medical marijuana regime. Then, in February, in Allard v. Canada, the Federal Court struck down the whole of the Marihuana for Medical Purposes Regulations (MMPR), which the former Conservative government established in 2013.

In Allard v. Canada, Justice Michael Phelan held that the medical marijuana regulations unconstitutionally restrict access by forcing patients to purchase their pot from a small number of licensed producers — that is, from private companies the federal government has authorized to cultivate and market medical cannabis. Rather than attempting to rewrite the regulations from the bench, Justice Phelan struck them down in their entirety, but suspended his declaration of invalidity for six months to give the government time to draft and promulgate new rules.

In March, Health Minister Jane Philpott announced that the government would not appeal the Allard decision. Instead, she said, the regulations “will be amended to give effect to the Court’s judgment…by August 24, 2016.” One assumes that, by “amended,” the Minister means that the MMPR will not be replaced by “a new or parallel medical marijuana regime,” as the Court envisioned in Allard, but rather by a modified version of the current rules with their constitutional flaws addressed.

The constitutional requirement to maintain a separate, specific regulatory framework for access to medical marijuana will, in most cases, be superfluous.

Whatever form the amended rules around medical marijuana take, they may have a short shelf life. The medical marijuana regime operates as an exception to a criminal prohibition. Legalization of cannabis will replace that prohibition with regulation. Once you or I can buy pot for our personal consumption without a prescription, the constitutional requirement to maintain a separate, specific regulatory framework for access to medical marijuana will be, in most cases, superfluous.

It will be open to the federal government to replace the entirety of the existing medical marijuana regime with new recreational regulations. Still, those rules will also need to contain exceptions, in order to provide reasonable access to those with serious conditions for whom marijuana provides some therapy and who have medical approval. For example, Canadians who are below the legal age for purchasing marijuana, or who need a stronger product that is not legally available, will need some way to get access. Health Canada addressed these issues in a discussion paper published last month.

Although the government has not taken the prospect of parallel medical and recreational regimes off the table, the stage seems set for a single-track approach to marijuana regulation. If the government proceeds along those lines – and continues to provide the medical access that the courts have said is constitutionally required – then the Canadian Charter of Rights and Freedoms will not stand in its way.

The question then becomes whether the government will a) use the amended MMPR that it drafts this summer as the template for the recreational rules, or b) develop a new, different recreational regulatory model and then scrap the amended MMPR once the recreational framework is in force.

The first approach is more likely, for two reasons.

First, the medical marijuana market, and the licenced producers that supply it, are already up and running. Expanding the medical regime to supply cannabis for recreational consumption will be simpler and cheaper than starting from scratch. This alone will make the amended medical marijuana regulations an attractive starting point for post-legalization regulations.

Doing so will also avoid some of the pitfalls that other jurisdictions have experienced after legalization. The State of Washington experienced a serious shortfall in supply after its first marijuana retail stores opened in 2014. It lacked an established medical marijuana industry capable of scaling up supply to meet recreational demand. By contrast, Colorado gave existing medical marijuana producers priority access to retail licenses. It also allowed producers to divert marijuana cultivated for medical use into the new recreational market. Colorado had 40 retail stores up and running on the day marijuana was legalized.

Canada has already signalled that it intends to follow Colorado’s example. Health Canada’s discussion paper indicates that the government is inclined to introduce a system of “private sector production with appropriate government licensing and oversight.” This suggests an expansion of the existing MMPR model, with production primarily (though not exclusively) in the hands of licensed producers.

Second, using the medical marijuana regulations as the basis for new recreational marijuana regulations will allow the government to respect its constitutional obligation to ensure reasonable access to medical marijuana, while advancing its stated objective of crime control.

Here too, the government has already indicated that it intends to learn from Colorado. Health Canada’s discussion paper notes that in that state, the “co-existence of retail and medical markets was problematic as it creates dual standards (e.g., different minimum ages, purchase quantities and taxation) and contributes to the grey market, therefore complicating regulation and enforcement.”

Ottawa doesn’t want a situation in which Canadians bypass the recreational market altogether to get what they want from the medical marijuana system.

The government’s reference to the “grey market” is telling. Because of the long line of court decisions striking down barriers to medical access, the medical regulations are already required to be less restrictive than the government might want them to be. Ottawa doesn’t want a situation in which Canadians bypass the recreational market altogether to get what they want from the medical marijuana system. This makes it more likely that the government will implement a single, Charter-compliant set of regulations that meets the constitutional standards for medical access, and it eliminates the requirement for medical authorization in some, but not all, circumstances.

Adults are unlikely to need a doctor’s permission to purchase dried cannabis from an authorized retailer, for example, but the same will probably not be true for minors. It will be for the government to decide what requires a prescription and what does not; so long as those with medical authorization have reasonable access, the Charter is unlikely to limit what the government can keep out of the recreational users’ hands.

There are competing reasons to keep the medical and recreational markets separate, of course. Doing so would permit the government to impose tougher quality requirements – or price controls, or distribution restrictions – on the production of medical cannabis. Whether this would be worth the additional fiscal cost and ongoing regulatory burden is a policy choice for the government to make, in which the courts are unlikely to intervene.

Some will have principled objections to the imposition of single-track regulations. Alan Young of Osgoode Hall Law School has worried about how the government plans to deal with “underground” cannabis users, who will balk at the corporate control of the product. Many medical cannabis users, meanwhile, will resent having to share a market with recreational consumers. At least at first, the demand for recreational marijuana will likely outstrip the supply, which will mean a spike in prices, if only for a time. As Greg Engel, CEO of licenced producer Tilray, recently noted, Ottawa will need to consider how to ensure access to patients who need affordable cannabis.

There are several other, interrelated, policy issues with which the government will have to grapple. Under the current medical marijuana regulations, licensed producers may only sell to their customers by mail. If the government goes with a single cannabis regime and maintains the mail-order rule, that would spell the end of dispensaries that have popped up in cities across Canada.

Any such federal effort to regulate recreational marijuana at the point of sale would also mean conflict with the provinces. The Constitution Act, 1867 assigns jurisdiction over local matters, including most retail sales, to the provincial legislatures. Ontario has already signalled a preference for selling pot in the province’s liquor stores. As I have written elsewhere, whether the federal government could constitutionally insist on regulating the entire supply chain for nonmedical cannabis is an open question.

But these are not, for the most part, legal issues. As a matter of constitutional law, there is no requirement to maintain a medical access regime that is separate and distinct from the recreational market. Provided those who need to get cannabis for medical purposes are reasonably able to do so, there is no apparent reason why the courts would insist on two sets of regulations rather than one. For most of the litigants who have spent the last 16 years expanding access to medical marijuana, legalization will likely mean standing in line with everybody else.

As part of his legal practice, the author advises clients on marijuana regulation. The author thanks McCarthy Tétrault LLP colleague Awi Sinha, and student Dilara Alpli for her able assistance.

Photo: William Casey/


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Adam Goldenberg
Adam Goldenberg is a lawyer at McCarthy Tétrault LLP. He is an adjunct professor at the Faculty of Law, University of Toronto. He was a law clerk to the Chief Justice of Canada and to the judges of the Ontario Court of Appeal, and he was chief speechwriter for the Leader of the Opposition in Parliament and a senior adviser in the Ontario government.  

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