The process of cannabis legalization in Canada and the similarities and differences with Brazil

By Tiago Zamponi

The legalization process in Canada, with the exception of some points, was the same that Brazil is currently experiencing, meaning that patients with certain diseases who were not finding improvements with various conventional medications found hope and an improvement in quality of life through cannabis. Thus, they sought the Judiciary and won the right to grow for medicinal use.

Legal access to cannabis was first allowed in Canada in 1999 through discretionary exemptions granted by the Ministry of Health for medical, scientific, or public interest purposes. Given the limited and discretionary nature of the exemption, including for medical purposes, a legal process was initiated. In a 2000 decision by the Ontario Court of Appeal, an individual's right to possess cannabis for medical purposes was confirmed by the courts, leading the Canadian federal government to implement the first medical cannabis access program, called the Marijuana Medical Access Regulations (MMAR).

 Under the MMAR, Canadian patients could, with the support of a physician, obtain authorization to possess cannabis for personal use. The MMAR also allowed approved individuals to cultivate cannabis, have a designated person grow it, or purchase products directly through Health Canada.

Dissatisfied with the MMAR regime, additional challenges from stakeholders and court decisions led Health Canada to develop a new set of regulations, the Marijuana for Medical Purposes Regulations (MMPR). 

Unlike the MMAR, the MMPR changed the supply and distribution of cannabis for medical purposes, establishing a regulatory framework to license producers who would cultivate, distribute, and sell cannabis to individuals with medical needs. Under the MMPR regime, healthcare professionals could prescribe a prescription, allowing their patients to purchase directly from a licensed producer up to the recommended amount.

Unsurprisingly, the MMPR regime continued to be challenged in the courts. In 2015, the Supreme Court of Canada, in a final appeal decision from a case prior to the MMAR and MMPR, ruled that restricting legal access only to dried forms of cannabis violates the Canadian Charter of Rights and Freedoms. In response, the federal Minister of Health granted discretionary exemptions, allowing licensed producers under the MMPR to produce and sell cannabis oil and fresh cannabis leaves.

 Not long after, in 2016, in another case, the Federal Court of Canada declared the MMPR as a whole invalid for violating the Canadian Charter of Rights and Freedoms, as the restrictive MMPR regime did not provide individuals with reasonable access to cannabis for medical purposes. In response, the Canadian government implemented the Access to Cannabis for Medical Purposes Regulations (ACMPR) in August 2016. 

According to the ACMPR, in addition to the option to purchase from licensed producers, individuals who have been authorized by their physician to access cannabis for medical purposes and are registered under the ACMPR can produce a limited amount of cannabis for their own medical purposes or designate someone to produce it for them.

The idea of allowing others to grow cannabis was to facilitate access and reduce costs, as many people do not know how to grow it. In this sense, one person would gather several patients with licenses and grow for them. It is noteworthy that each license contains the amount that could be grown for each patient.

An interesting fact is that this led to the emergence of the black market, as what was not consumed by any patient was sold to others, without control. In this sense, it is very important for Brazil to allow cultivation for medical purposes and create regulations to prevent misuse. After all, regulating is not prohibiting.

For the 2015 Canadian federal election, now-Prime Minister Justin Trudeau and his Liberal Party of Canada criticized the prohibition and criminalization of cannabis and promised to legalize recreational use, restricting access to minors and keeping the proceeds out of the hands of criminals who fueled the black market for cannabis. After his election, and fulfilling this campaign promise, the Trudeau government introduced the Cannabis Act in April 2017, paving the way for the legalization of recreational marijuana use in Canada, which was approved on October 17, 2018.

Finally, in my opinion, Brazil lacks political will, as the demand exists and grows every day. The country cannot ignore this issue and urgently needs to regulate cultivation to allow safer and cheaper access for patients.

The opinions expressed in this article are personal and do not necessarily reflect the position of Sechat.

About the author:

Tiago Zamponi is a lawyer, lives in Canada, works in business development, and is currently the sales director at Molecule, a Canadian cannabis beverage company.