feature JOHN W. CONROY, QC AND JACK LLOYD
Cannabis in Canada
What has and is happening since “legalization” on October 17, 2018
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n an article entitled, Cannabis in Canada, in the June 2018 issue of BarTalk, a background overview and links were provided as to what had happened historically in Canada in relation to cannabis from its “prohibition” in 1923 to its proposed “legalization” in 2018 and 2019 and what was planned. On October 17, 2018, Canada, using its constitutional “criminal law power,” proclaimed, in force, the Cannabis Act making it legal for a person 18 years and older (subject to provincial/territorial legislation making the age higher such as Quebec to age 21 and all other provinces [except Alberta that remains at 18] to age 19), to possess, in public, up to 30 grams of legal cannabis or equivalents as defined (dried, fresh, oil, plants, and seeds) and each “household” to produce up to four plants of any size, again subject to provincial legislation with Manitoba and Quebec continuing to prohibit such (see details below). Also, a “young person” (defined to be 12 years of age or older but under 18 years of age for purposes of section 8-9 and 12 of the Act) is allowed to possess, in public, up to five grams of dried cannabis or equivalents and share amongst each other. However, it is an offence to provide such “young persons” with cannabis and such minors are subject to provincial “minor in possession” legislation. On October 17, 2019, “edibles containing cannabis 22 BARTALK / DECEMBER 2021
and cannabis concentrates” were added to define all the legal “classes of cannabis.” “Distribution” of all these products for non-medical purposes is delegated to the provinces and territories and each has their own specific legislation. Please go to Canada.ca for specific details and links to each as well as to a significant amount of additional information on cannabis generally. Access to cannabis for medical purposes continues to be regulated by the federal government under Part 14 of the Cannabis Regulations and “medically approved patients” can continue to either produce for themselves (“PPL”), have a designated producer (“DGL”) grow for them, or purchase online from a federally “licensed producer for medical purposes.” While it is recommended that all “medically approved patients,” under the since repealed Medical Marijuana Access Regulations (MMAR), apply to be registered under the current Act and regulations, those who were medically approved and had a PPL or DGL valid on September 30, 2013, and an authorization to possess valid on March 21, 2014, continue to be grandfathered by the injunction granted in Allard v Canada 2016 FC 236 that continues “until the court
orders otherwise.” Those documents remain valid on their face (despite stating to be expired) for the place/ location specified and cannot be moved or otherwise changed. If a patient needs to change it, then a new application under the new Act must be made. There is no provision federally or provincially for medical dispensaries to provide medically approved patients with their medicine and there is an ongoing issue between the Community Safety Unit (“CSU”) in British Columbia charged with
enforcing the provincial laws. Arguably they do not have jurisdiction over federal medical dispensaries, only social or recreational dispensaries, under provincial legislation. Two non-profit societies in BC are applying for a federal license to sell for medical purposes only (s.8 (1) and (5) of the Cannabis Regulations) and any exemptions from the existing law if required so they can supply their patients via a physical location instead of only online. Criminal law prohibitions are contained in Part 1 of the Act “Prohibitions, Obligations and Offenses” Division 1 “Criminal activities” Sections 8 through 15. Conduct that is prohibited “unless authorized under this Act” defines the offences, all of which, unlike the Controlled Drugs
