Vol. 141, No. 20 — October 3, 2007

Registration
SOR/2007-207 September 18, 2007

CONTROLLED DRUGS AND SUBSTANCES ACT

Regulations Amending the Marihuana Medical Access Regulations

P.C. 2007-1356 September 18, 2007

Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to subsection 55(1) of the Controlled Drugs and Substances Act (see footnote a), hereby makes the annexed Regulations Amending the Marihuana Medical Access Regulations.

REGULATIONS AMENDING THE MARIHUANA MEDICAL ACCESS REGULATIONS

AMENDMENTS

1. (1) The definition "symptôme de catégorie 1" in subsection 1(1) of the French version of the Marihuana Medical Access Regulations (see footnote 1) is replaced by the following:

« symptôme de catégorie 1 » Tout symptôme dont le traitement est effectué au moyen de soins palliatifs en fin de vie ou l'un des symptômes figurant à la colonne 1 de l'annexe et associé à l'état pathologique mentionné à la colonne 2 ou au traitement médical de cet état. (category 1 symptom)

(2) Paragraph (c) of the definition "production area" in subsection 1(1) of the Regulations is replaced by the following:

(c) partly indoors and partly outdoors. (aire de production)

2. Section 3 of the English version of the Regulations is replaced by the following:

3. A person is eligible to be issued an authorization to possess only if the person is an individual who ordinarily resides in Canada.

3. Paragraph 10(b) of the Regulations is replaced by the following:

(b) have dimensions of at least 43 mm × 54 mm (1 11/16 inches × 2 1/8 inches) and not more than 50 mm × 70 mm (2 inches × 2 3/4 inches), and have a view of the applicant's head that is at least 30 mm (1 3/8 inches) in length;

4. The portion of section 25 of the English version of the Regulations before subsection (2) is replaced by the following:

25. (1) Subject to subsection (2), a person is eligible to be issued a personal-use production licence only if the person is an individual who ordinarily resides in Canada and who has reached 18 years of age.

5. Paragraph 26(1)(b) of the English version of the Regulations is replaced by the following:

(b) is not the holder of an authorization to possess, but either has applied for an authorization to possess or is applying for an authorization to possess concurrently with the licence application.

6. Subsection 27(2) of the English version of the Regulations is replaced by the following:

(2) The application must include

(a) a declaration by the applicant; and

(b) if the proposed production site is not the applicant's ordinary place of residence and is not owned by the applicant, a declaration dated and signed by the owner of the site consenting to the production of marihuana at the site.

7. (1) Paragraph 29(2)(b) of the English version of the Regulations is replaced by the following:

(b) the full address of the place where the holder of the licence ordinarily resides;

(2) Paragraph 29(2)(h) of the English version of the Regulations is replaced by the following:

(h) the maximum quantity of dried marihuana, in grams, that may be kept at the site authorized under paragraph (g) at any time;

8. Paragraph 34(1)(c) of the English version of the Regulations is replaced by the following:

(c) if the production site specified in the licence is different from the site where dried marihuana may be kept, to transport directly from the first to the second site a quantity of dried marihuana not exceeding the maximum quantity that may be kept under the licence;

9. (1) The portion of section 35 of the English version of the Regulations before paragraph (a) is replaced by the following:

35. A person is eligible to be issued a designated-person production licence only if the person is an individual who ordinarily resides in Canada and who

(2) The portion of paragraph 35(b) of the Regulations before subparagraph (i) is replaced by the following:

(b) has not been found guilty, as an adult, within the 10 years preceding the application, of

10. (1) Paragraph 37(2)(c) of the English version of the Regulations is replaced by the following:

(c) if the proposed production site is not the applicant's ordinary place of residence or of the designated person and is not owned by the applicant or the designated person, a declaration dated and signed by the owner of the site consenting to the production of marihuana at the site;

(2) Paragraph 37(2)(d) of the Regulations is replaced by the following:

(d) a document issued by a Canadian police force establishing that, within the 10 years preceding the application, the designated person has not been convicted, as an adult, of a designated drug offence; and

(3) Paragraph 37(2)(e) of the English version of the Regulations is replaced by the following:

(e) two copies of a current photograph of the designated person that complies with the standards specified in paragraphs 10(a) to (c), each of which is certified by the applicant, on the reverse side, to be an accurate representation of the designated person.

11. The portion of paragraph 39(1)(c) of the Regulations before subparagraph (i) is replaced by the following:

(c) indicate that, within the 10 years preceding the application, the designated person has not been convicted, as an adult, of

12. Paragraph 40(2)(i) of the Regulations is replaced by the following:

(i) the maximum quantity of dried marihuana, in grams, that may be kept at the site authorized under paragraph (h) at any time;

13. The heading before section 46 of the French version of the Regulations is replaced by the following:

Changement de lieu de production ou d'aire de production

14. (1) Subsection 46(1) of the French version of the Regulations is replaced by the following:

46. (1) Le demandeur de la licence de production présente au ministre une demande de modification de la licence S'il envisage de changer de lieu de production ou d'aire de production.

(2) Paragraph 46(2)(b) of the Regulations is replaced by the following:

(b) in the case of a proposed change in the location of the production site, the full address of the proposed new site and supporting reasons for the proposed change;

(3) Paragraph 46(2)(c) of the Regulations is replaced by the following:

(b) in the case of a proposed change in the production area, the proposed new production area and supporting reasons for the proposed change; and

15. The heading before section 49 of the French version of the Regulations is replaced by the following:

Changement de lieu de garde de la marihuana séchée

16. Subsection 49(1) of the French version of the Regulations is replaced by the following:

49. (1) Le titulaire d'une licence de production qui envisage un changement quant au lieu où est gardée la marihuana séchée présente une demande de modification écrite au ministre au moins quinze jours avant la date du changement proposé.

17. Subsection 50(4) of the Regulations is replaced by the following:

(4) On receiving a notice under subsection (1), the Minister shall amend the licence accordingly.

18. Section 52 of the Regulations is replaced by the following:

52. The holder of a licence to produce may produce marihuana only at the production site and production area authorized in the licence.

52.1 The holder of a licence to produce shall not simultaneously produce marihuana partly indoors and partly outdoors.

19. (1) Paragraphs 57(1)(a) and (b) of the English version of the Regulations are replaced by the following:

(a) open and examine any receptacle or package found there that could contain marihuana;

(b) examine anything found there that is used or may be capable of being used to produce or keep marihuana;

(2) Paragraph 57(1)(c) of the French version of the Regulations is replaced by the following:

c) examiner les registres, les données électroniques et tous autres documents trouvés sur les lieux et se rapportant à la marihuana, à l'exception des dossiers sur l'état de santé de personnes, et les reproduire en tout ou en partie;

(3) Paragraph 57(1)(e) of the French version of the Regulations is replaced by the following:

e) reproduire ou faire reproduire, notamment sous forme d'imprimé, tout document provenant des données électroniques;

(4) Paragraph 57(1)(f) of the French version of the Regulations after paragraph (g) is relettered as paragraph 57(1)(h).

(5) Paragraph 57(1)(h) of the Regulations is replaced by the following:

(h) seize and detain, in accordance with Part IV of the Act, any substance found there, if the inspector believes, on reasonable grounds, that it is necessary.

(6) Subsection 57(2) of the Regulations is replaced by the following:

(2) An inspector may not enter a dwelling-place without the consent of an occupant of the dwelling-place.

(3) An inspector who seizes marihuana shall take such measures as are reasonable in the circumstances to give to the owner or other person in charge of the place where the seizure occurred notice of the seizure and of the location where the seized marihuana is being kept or stored.

(4) If an inspector determines that the detention of marihuana seized under paragraph (1)(h) is no longer necessary to ensure compliance with these Regulations, the inspector shall notify in writing the owner or other person in charge of the place where the seizure occurred of that determination and, on being issued a receipt for the marihuana, shall return it to that person.

20. Subsection 60(2) of the French version of the Regulations is replaced by the following:

(2) Dans le cas où l'autorisation de possession ou la licence de production est révoquée, le titulaire doit, dans les trente jours suivant la révocation, remettre au ministre le document révoqué ainsi que tout autre document prouvant son autorisation de posséder de la marihuana séchée ou d'en produire.

21. Section 67 of the Regulations is replaced by the following:

67. (1) If a licence to produce is amended under section 47 or at the time of the renewal to reflect a change in the production area, the holder of the licence must destroy any marihuana plants in production under the licence that are in excess of the maximum number of plants that may be produced under the licence, as amended.

(2) If a licence to produce is amended under section 47 or at the time of the renewal to reflect a change in the production area, the holder of the licence must destroy any dried marihuana kept under the licence that is in excess of the maximum quantity of marihuana that may be kept under the licence, as amended.

22. The portion of section 68.1 of the English version of the Regulations before paragraph (a) is replaced by the following:

68.1 The Minister is authorized to communicate any of the following information to a Canadian police force or a member of a Canadian police force who requests the information in the course of an investigation under the Act or these Regulations, subject to that information being used only for the purpose of that investigation and the proper administration or enforcement of the Act or these Regulations:

23. Subparagraph 69(a)(i) of the English version of the Regulations is replaced by the following:

COMING INTO FORCE

24. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

This regulatory initiative responds to concerns raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) in relation to the Marihuana Medical Access Regulations (MMAR). The MMAR provide the regulatory framework under which Canadians who suffer from serious medical conditions can obtain an authorization to possess and a licence to produce marihuana for medical purposes.

The SJCSR has reviewed the aforementioned Regulations and has identified grammatical and linguistic inconsistencies between the English and French versions, and certain other provisions that require non-substantive clarification.

The purpose of the Miscellaneous Amendments Regulations process is to streamline the regulatory process by shortening the total time taken to make minor and technical amendments to existing regulations. These amendments do not impose new restrictions or burdens on individuals or industry.

These Regulations will address all but one of the concerns raised by the SJCSR. Health Canada has determined that the remaining concern, which relates to the requirement of the holder of a licence to produce to provide a notice of change of information, is substantive in nature and it will be addressed in subsequent amendments to the MMAR.

Inconsistencies Between the English and French Versions

The following paragraphs detail some of the amendments that have been made in order to address the inconsistencies between the English and French versions of the Regulations.

In subsection 1(1) of the French version of the MMAR, the expression "soins palliatifs" in the definition of "category 1 symptom" does not appear to have the same meaning as the expression "compassionate end-of-life care" in the English version. Accordingly, the French version of the definition has been amended to include "soins palliatifs en fin de vie", in order to be more specific to end-of-life situations.

With respect to the issuance of a designated-person production licence, one of the eligibility requirements is that the designated person has not been found guilty, as an adult, within the 10 years preceding the application, of a designated drug offence. Paragraphs 35(b), 37(2)(d), and 39(1)(c) of the English and French versions of the MMAR were inconsistent with respect to the adult qualification and whether conviction or commission of a designated drug offence was the relevant event. Accordingly, the two versions of these paragraphs have been harmonized to require conviction of a designated drug offence, as an adult, as the relevant event.

The SJCSR has indicated that the English and French versions of subsection 46(1) of the MMAR were not consistent with respect to the person to whom the provision applied and the type of changes intended. The English version applied to changes proposed by the applicant for a licence to produce; however, the French version was not specific with regard to the proponent. In addition, the English version applied specifically to a change in the location of a production site or a change of production area, while the French version appeared to apply to any changes affecting a production site or production area. Accordingly, the French version of subsection 46(1) has been harmonized with the English version.

Subsection 49(1) of the French version of the MMAR was not consistent with the English version. It required the holder of a production licence to apply to amend their licence to reflect a change of site where dried marihuana is kept "au plus tard dans les quinze jours" ("at the latest within the 15 days") before the proposed date of the change. In other words, the application was to be made at any time before the date of the proposed change. The English version, which reflects the actual intent, requires the holder to apply "not less than 15 days before". Accordingly, the French version has been harmonized with the English version and amended to "au moins quinze jours avant" ("at least 15 days before").

Non-Substantive Clarifications of Certain Provisions

The following paragraphs detail some of the amendments that have been made in order to clarify certain provisions of the Regulations.

The SJCSR has advised that a definition is not the appropriate place to set out a substantive rule. Consequently, paragraph (c) of the definition of "production area" in subsection 1(1) of the MMAR, has been amended by removing the words "but without any overlapping period between the two types of production". Accordingly, the prohibition regarding the simultaneous indoor and outdoor production of marihuana has been moved to a new section 52.1.

The SJCSR has indicated that an inconsistency exists in the requirements of the Minister to amend a licence in response to a notice of change of information in section 50 of the MMAR. Section 50 of the MMAR requires the holder of a licence to produce to notify the Minister in writing, within 10 days after the occurrence, of a change in the holder's name or of a change in the holder's address of ordinary residence provided that this address is not also the address of the site for the production of marihuana. However, subsection 50(4) of the MMAR required the Minister to amend a licence to produce only if there was a change in a holder's name. Accordingly, subsection 50(4) has been amended to also require the Minister to amend the licence when there is a change to the holder's address of ordinary residence.

The SJCSR has indicated that as a matter of logic and syntax, it makes no sense to state in section 52 of the MMAR that production must occur "in accordance with" an area. Accordingly, section 52 which read: "The holder of a licence to produce may produce marihuana only at the production site authorized in the licence and only in accordance with the authorized production area" has been modified to read: "The holder of a licence to produce may produce marihuana only at the production site and production area authorized in the licence".

The SJCSR has advised that there are a number of inconsistencies between the provisions for inspection set out in subsection 57(1) of the MMAR and those set out in subsection 31(1) of the Controlled Drugs and Substances Act (CDSA) in both the English and French versions. For example, the power to seize and retain conferred by paragraph 57(1)(h) of the MMAR was not subject to the requirement, found in paragraph 31(1)(i) of the CDSA, that the seizure or detention occur "in accordance with" Part IV of the Act. Part IV of the CDSA provides that an inspector who seizes a controlled substance shall take such measures as are reasonable in the circumstances to give to the owner or other person in charge of the place where the seizure occurred notice of the seizure and of the location where the substance is being kept, as outlined in subsection 31(7) of the CDSA. Part IV also provides that an inspector shall, in certain circumstances, have the substance returned to the owner or person in charge of the place where the seizure occurred, as outlined in subsection 31(8) of the CDSA. Accordingly, the regulatory provisions in paragraphs 57(1)(a), 57(1)(b), 57(1)(c), 57(1)(e), 57(1)(h), and subsection 57(2) have been amended and subsections 57(3) and 57(4) have been added, in order to be consistent with the wording in the Act.

Finally, several of the SJCSR's concerns have resulted in additional non-substantive amendments including the replacement and renumbering of certain sections in the Regulations.

Contact

Tiana Branch
Office of Controlled Substances
Drug Strategy and Controlled Substances Programme
Healthy Environments and Consumer Safety Branch
Health Canada
Address Locator: 3503A
Ottawa, Ontario
K1A 1B9
Telephone: 613-941-1511
Fax: 613-946-4224
Email: OCS_Policy_and_Regulatory_Affairs@hc-sc.gc.ca

Footnote a

S.C. 1996, c. 19

Footnote 1

SOR/2001-227

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