Statement on Supreme Court of Canada Decision in R. v. Smith

07/10/15 - 07/10/16

As you aware, the Supreme Court of Canada in its decision in R. v. Smith, dated June 11, 2015, declared section 4 (prohibition on possession) and section 5 (prohibition on trafficking or possession for the purposes of trafficking) of the Controlled Drugs and Substances Act (CDSA) to be of no force and effect to the extent that they prohibit access to products made with cannabis by those who are authorized to possess marijuana for medical purposes.

This letter is to inform you of the measures Health Canada has put in place to allow authorized persons to possess and produce for their own medical use products containing cannabis.  For further information, please consult the departmental statement issued on July 8, 2015. http://www.hc-sc.gc.ca/dhp-mps/marihuana/info/licencedproducer-producteurautorise/decision-r-v-smith-eng.php  These measures include the issuance of exemptions pursuant to section 56 the CDSA that permit authorized individuals to conduct such activities for their medical use.

These exemptions permit licensed producers under the Marihuana for Medical Purposes Regulations (MMPR), clients registered with a licensed producer, authorized individuals covered by an interim injunction issued by a court such as the Allard court order, hospitals and health care practitioners to conduct additional activities with marijuana for medical purposes.

With the exemption published today, licensed producers under the MMPR will be permitted to sell marijuana for medical purposes in three basic forms - fresh, dried and oil - to their clients.  Licensed producers will need to comply with the relevant provisions of the MMPR. This includes requirements for child-proof packaging, various labelling requirements and adverse reaction reporting.

Licensed producers are not allowed to provide other processed cannabis products and edible food products. By allowing access to marijuana for medical purposes in dried, fresh and oil forms, we are providing individuals with the flexibility to make their own products. By allowing for the controlled production of oils by licensed producers we are mitigating risks associated with the potentially dangerous practice of making marijuana oil in the home. Certain methods of production of oil are not permissible in a home.

This exemption does not apply to organizations such as “compassion clubs” or “dispensaries”.  They are illegal. For information on how an individual can lawfully access marijuana for medical purposes please see the following information bulletin: http://www.hc-sc.gc.ca/dhp-mps/marihuana/info/licencedproducer-producteurautorise/access-usage-eng.php 

Under the section 56 exemption, proof of possession for an individual authorized to access marijuana for medical purposes under the MMPR will continue to be the “client label” on the fresh marijuana or cannabis oil that they obtained from a licensed producer, or the document accompanying the shipment which shows the information contained on the client label.

The exemption also requires that licensed producers determine the quantity of the fresh marijuana or cannabis oil that is equivalent to one gram of dried marijuana and include that information on the product label.

The possession cap of either 30 times the daily amount of dried marijuana authorized, or 150 grams of dried marijuana, whichever is less, continues to apply. Licensed producers are required to post their conversion method (between dried marijuana and cannabis oil and fresh marijuana) on their website.

In terms of individuals continuing to produce for themselves under the Allard injunction, their proof of possession continues to be their Authorization to Possess. They are also subject to the 150-gram possession cap.  If frontline law enforcement need to verify any information provided by individuals indicating that they are subject to the Allard injunction, the 24/7 police pager service continues to be available.

I am happy to discuss further, should you or your members require any additional clarification.

Regards,

Eric Costen
Executive Director | Directeur exécutif
Office of Medical Cannabis | Bureau du cannabis médical
Healthy Environments and Consumer Safety Branch |
Direction Générale, Santé environnementale et sécurité des consommateurs
Health Canada | Santé Canada