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TURMEL: Sfetkopoulos & Beren MMAR Amendments & Effects

Von: KingofthePaupers (johnturmel@yahoo.com) [Profil]
Datum: 08.05.2010 17:44
Message-ID: <ae30cd4b-f065-49b7-820f-d853882784fc@40g2000vbr.googlegroups.com>
Newsgroup: alt.conspiracy alt.drugscan.legal can.politics alt.fan.john-turmel

JCT: Here is my parsing of the the Government's May 14
2009 fix for Sfetkopoulos and Mar 31 2010 fix for
Beren published in the Canada Gazette.

http://www.gazette.gc.ca/rp-pr/p2/2009/2009-05-27/html/sor-dors142-eng.html

> SFETKOPOULOS
SOR/2009-142)

Canada Gazette www.gazette.gc.ca
Part II: Official Regulations > 2009-05-27
Vol. 143, No. 11 - May 27, 2009

Registration

SOR/2009-142 May 14, 2009

CONTROLLED DRUGS AND SUBSTANCES ACT

Regulations Amending the Marihuana Medical Access
Regulations
P.C. 2009-746 May 14, 2009

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

AMENDMENT
1. Paragraph 41(b.1) of the Marihuana Medical Access
Regulations (see footnote 1) is replaced by the
following:
(b) if the designated person would become the holder of
more than two licences to produce; or

REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)

Executive Summary
Issue: Subsection 41(b.1) of the Marihuana Medical
Access Regulations (MMAR) stipulates that no person
shall hold more than one licence to produce.

JCT: 1 Grower per exemptee.

> On January 10, 2008, the Federal Court, in coming to a decision
in Sfetkopoulos, Dora et al v. AG of Canada(Sfetkopoulos),
declared that subsection 41(b.1) is invalid on the grounds that
it infringes on section 7 of the Canadian Charter of Rights and
Freedoms (the Charter). In his ruling, Justice Strayer found that
the one grower to one user ratio set out in this provision
unjustifiably limits the ability of authorized persons to access
their marihuana for medical purposes. This decision was confirmed
in appeal by the Federal Court of Appeal, on October 27, 2008.

JCT: Grower limited to 1 exemptee not okay, 2 exemptees okay?

> Although the Government sought leave to appeal to the Supreme
Court of Canada (SCC) and a stay of the execution of the Federal
Court of Appeal decision, these requests were dismissed on April
23, 2009, and subsection 41(b.1) became invalid immediately.

JCT: Was declared invalid since 2003.

> This has created a significant regulatory void in that the
Minister of Health no longer has the authority to restrict how
many licences to produce a designated person can hold, and thus
the size of some marihuana for medical purposes production
operations.

Description: This regulatory initiative will amend the
MMAR by setting the limit on the number of licenses to
produce a designated person can hold to two (2). This
is an interim measure intended to address the
regulatory void created by the SCC's dismissal of the
Government's leave to appeal of the Federal Court of
Appeal decision, while the Marihuana Medical Access
Program (the Program) and the MMAR that underpin it are
reassessed. Such a review is required given that the
Program was never intended to facilitate the
widespread, potentially large-scale production of
marihuana for medical purposes.

JCT: So the put this cap of 2 because the court found their last
cap of 1 unconstitutionally limiting. They're laughing at the
courts, aren't they?

> Cost-benefit statement: As will be described further below,
marihuana cultivation at any level is not without impacts in the
form of potential risks to public health, safety and security of
not only those persons directly involved, but also those living
at the same address, adjacent residential units, and/or in the
surrounding community. The most significant of these is the risk
that the larger scale production of marihuana for medical
purposes may facilitate diversion to the illicit market.
Government intervention to introduce a new limit on the number of
licences to produce a designated person can hold will provide
benefits by constraining the quantity of marihuana produced for
medical purposes under the auspices of the designated person
production licences issued under the MMAR.

JCT: So because they worry about diversion which has not been
much of a problem in the past 10 years, they have re-imposed a
similar limit to those found unconstitutional in Hitzig and
Sfetkopoulos. Another "stupid gimme." The last one got them 6
years worth of bogus busts, who knows how long it'll take Alan
Young to challenge this recent stupid gimme this time.

> Business and consumer impacts: While implementation of this
measure will result in increased administrative burden on Health
Canada, the increase will be minimal as systems and processes to
administer the MMAR are already in place. The system currently
used to track designated persons and authorized persons will be
updated.

While the introduction of a new limit on the number of licences
to produce a designated person can hold respects the original
intent of the Program, i.e., enabling Canadians with life-
threatening or chronic medical conditions to access a legal
source of dried marihuana for their personal use, the amendments
also provide authorized persons with more choice as to how to
obtain their legal supply.

That said, this incremental change may be seen by some authorized
persons, designated persons and/or marihuana legalization
advocates as an infringement of their rights under the Canadian
Charter of Rights and Freedoms, and may elect to pursue legal
challenges in this regard. This may impose costs on the
Government in the form of increased burden on law enforcement and
the court system.

JCT: That said, it's Alan Young to the rescue from their Stupid
Gimme again so he can argue "this incremental change may be seen
by some authorized persons, designated persons and/or marihuana
legalization advocates as an infringement of their rights under
the Canadian Charter of Rights and Freedoms, again, and may elect
to pursue legal challenges in this regard again. This may impose
costs on the Government in the form of increased burden on law
enforcement and the court system. And making Young challenge this
incremental change in compliance with the courts rulings gives
him another chance to prove the MMAR was flawed and a third
chance to not link it to the JP rationale that the CDSA
prohibition is absent when the MMAR is flawed.

> Domestic and international coordination and cooperation: This
initiative underscores the Government's commitment to maintaining
control over the production and distribution of marihuana, as
required by the Controlled Drugs and Substances Act (CDSA) and
the United Nations Single Convention on Narcotic Drugs, 1961, to
which Canada is a signatory. It is expected that the
International Narcotics Control Board and United States law
enforcement and regulatory counterparts will be supportive of the
amendments because they serve to limit the amount of marihuana
for medical purposes a designated person can produce at one time,
and thus the potential for diversion to the illicit market.

JCT: Another reason the real marijuana movement should be
picketing at the G20 in objection to the UN prohibition.

> Issue
Marihuana is included in Schedule II to the CDSA, and
as such is a controlled substance in Canada. The CDSA
prohibits the possession, possession for the purposes
of trafficking, production, importation, exportation,
trafficking, and possession for the purposes of
exporting marihuana except as authorized by regulation.

The Marihuana for Medical Access Program (the Program)
was first established in 1999, and the authorization to
possess marihuana and/or cultivate a limited number of
plants for medical purposes was achieved via the
issuance of exemptions under s.56 of the CDSA. In July
2000, however, the Ontario Court of Appeal ruled (R. v.
Parker) that the prohibition on the possession of
marihuana in the CDSA was unconstitutional because of
he discretionary way, i.e. via a s.56 exemption, in
which individuals were being authorized to obtain
marihuana for medical purposes.

JCT: Rejection of the Crown's argument that S.56 did the job
wasn't the only reason they lost, it's the only reason they want
this court to remember!

> In response to the decision, the Government established the
MMAR, which set out a scheme by which any seriously ill Canadian
can, with the support of a medical practitioner, obtain an
authorization to possess marihuana for their own personal medical
use. Under the current MMAR, authorized persons have three
options in terms of procuring a supply of dried marihuana:

They can produce their own supply under a Personal Use Production
Licence (PUPL);
They can designate an individual to produce it on their behalf
under a Designated Person Production Licence (DPPL); or
They can purchase dried marihuana from the Government of Canada,
who contracts a private company to produce marihuana for the
Program.
While the Program was originally intended to authorize access for
a small number of persons, and was never intended to cover the
widespread production of marihuana in individual personal
residences, it has continued to grow in size since its inception.
At present, there are approximately 4 000 persons authorized to
possess marihuana under the Program, and this number is expected
to grow to at least 6 000 by 2011.
Of those approximately 4 000 authorized persons:
- 60% hold a PUPL;
- 10% access supply produced by a designated person on their
behalf;
- 20% purchase dried marihuana from the Government supply; and
- 10% obtain dried marihuana from an unknown source.
It is also important to note that due to amendments to
the MMAR in 2005 that sought to introduce a greater
sharing of the responsibility between persons seeking
to possess marihuana for medical purposes and their
medical professional in determining an appropriate
daily amount (dosage), an increasing proportion of
Program participants are being authorized to possess
higher and higher daily amounts of marihuana. Higher
daily amounts translate into larger crops for those
authorized persons who also hold PUPLs and/or for
designated persons cultivating marihuana under DPPLs.
For example, approximately 20% of all PUPL-holders and
28% of all designated persons are licensed to produce
25 plants or more, while 1% of all DPPL- and PUPL-
holders are licensed to produce at least 100 plants, a
quantity that is similar to what is routinely seen by
law enforcement agencies investigating illicit "grow
ops."

The invalidation of subsection 41(b.1), therefore, has the direct
result of impeding the Government of Canada's ability to limit
the number of authorized persons for whom a single designated
person can produce marihuana, thus enabling a situation in which
individuals can be licensed to produce large numbers of marihuana
plants in "legal" production operations in the absence of the
tight controls applied to the production and handling of other
controlled substances regulated under the CDSA.

JCT: Because the courts found the government's limiting of the
number of authorized persons to one unconstitutional.

> More specifically, this could result in large quantities of
marihuana being produced in unsuitable locations or environments,
thus potentially increasing the risk that marihuana produced for
medical purposes will be diverted to illicit markets; and,
compromising the health of licensed persons, other inhabitants of
the same or neighbouring dwellings and/or surrounding community
members as a result of mould, infrastructure damage and fire
hazards associated with the cultivation of a significant number
of plants in a single location.
Health Canada has therefore elected to bring forward amendments
to the MMAR that restore a level of control on the amount of
marihuana for medical purposes production in Canada. In the
absence of such amendments, the Federal Court of Appeal decision
may result in the proliferation of large scale marihuana
production operations within the context of a program that was
never intended to allow more than the production of small amounts
of marihuana for personal medical use.

JCT: They never intended it to be constitutional and are going to
look for ways to keep doing it wrong.

> Objectives
The primary objective of these amendments is to address the
regulatory void caused by the Federal Court of Appeal decision in
Sfetkopoulos. Health Canada has elected to examine amendments to
the MMAR that restore some level of control on the size of
marihuana for medical purposes production operations designated
persons are allowed to establish. Marihuana is a controlled
substance in Canada and there is concern that in the absence of
subsection 41(b.1) of the MMAR, the Program that is intended to
help Canadians who are seriously ill and/or suffering from
debilitating medical conditions will now facilitate the
production of larger quantities of marihuana that can be diverted
to the illicit market.

Description
The amendments will introduce a new limit on the number of
licences to produce a designated person can hold, and thus the
number of authorized persons they can supply. By instituting a
new limit of no more than two (2) on the number of licences to
produce a designated person can hold, the Government is still
respecting the original intent of the Program, i.e., allowing
Canadians with debilitating medical conditions to access a legal
source of dried marihuana for their own personal use. It also
restores some level of control over the level of marihuana for
medical purposes production in Canada. The amendments also
provide authorized persons with an additional supply through the
option of selecting a designated person who already holds one
licence to produce.

JCT: Makes you want to puke, doesn't it, how they are laughing at
everyone by changing their unconstitutional limit of 1 to a
constitutional limit of 2.

> Regulatory and non-regulatory options considered
The dismissal by the SCC of the Government's application for
leave to appeal the Federal Court of Appeal decision invalidating
subsection 41(b.1) of the MMAR has signaled the need to revisit
the overall Program as well as the Regulations that underpin it.
To be specific, the regulatory regime, which was originally
designed to meet the need of a small number of persons producing
only small quantities of marihuana under personal production
licences, was never intended to regulate larger production
operations which may result from the lifting of the restriction
on the number of marihuana for medical purposes licences to
produce a single designated person can hold.

Three options were considered in addressing the issue.

The first option involves taking no action in response
to the invalidation of subsection 41(b.1) of the MMAR.
However, such a response would not mitigate the
potential risk of diversion, or the potential health,
safety and security risks that may result from the
unsafe levels of production of marihuana for medical
purposes in an under-regulated environment.

The second option would make an incremental change to
the MMAR in order to allow designated persons to supply
more than one authorized person but not more than two
authorized persons.

JCT: Why not three or four? or more? or most efficient?

> Because this option only requires a relatively simple
regulatory change, the advantages of pursuing it are that it
allows for a timely response to the court decion. It also re-
introduces some level of control on the amount of marihuana
produced for medical purposes while minimizing the impact on
authorized persons. It also recognizes that doubling the
designated person to authorized person ratio may simplify growing
for co-located authorized persons who are also PUPL holders, e.g.
spouses living in the same household, and may result in reduced
production costs for some designated persons.
The disadvantages of this option are that it may result in Health
Canada receiving and having to process an increased number of
applications from current authorized persons looking to modify
their supply arrangements, and may also result in Health Canada
having to generate an increased number of licences to produce to
designated persons. It may also increase the number of new
applications from prospective authorized persons as some people
may associate the change with an opportunity to join the Program.

The third option examined in response to this issue would involve
the establishment of a new licensing regime for entities
interested in being involved in larger scale marihuana
production, including for example, comprehensive requirements
such as labelling, security, record-keeping, etc., similar to
those in place for the production and handling of other
controlled substances. While this option offers the most thorough
response to the court decision, the policy development work and
stakeholder consultation required to establish a suitable
framework would be extensive. Thus, this option would not provide
a timely response to the SCC's dismissal of the Government's
application for a leave to appeal the decision in Sfetkopoulos.

Given the time sensitivity and the minimal impacts of the second
option, Health Canada has selected it as an interim measure while
a broad review of the Program and the MMAR is undertaken.

JCT: So they chose to make as little change to their
unconstitutional limit as possible in compliance with the august
court's ruling.

> Benefits and costs
The cost-benefit analysis pertaining to this proposal has been
conducted with the assumption that failing to control the level
of marihuana for medical purposes production will lead to
increased risk to public health, safety and security.
Quantification and/or monetization of these impacts is, however,
limited by the availability of quantitative data.

JCT: Count on government shysters to bring a cost analysis to a
question of justice and rights.

> Benefits
In general, social benefits are not limited to reductions in
expenses or increased earnings but also include non-monetary
gains to society such as avoiding the pain and suffering of
illness. In this regard, they can be assessed and measured in
terms of avoided social losses. The two main groups within the
Canadian public who will benefit from the amendments are
authorized persons and other Canadians.

JCT: Isn't "authorized persons and others" everybody!

> Because the amendments will enable designated persons to hold
more than one licence to produce, some authorized persons may
benefit by having more choice as to who to nominate as their
designated person. Canadians may benefit from tighter controls on
the production of marihuana for medical purposes because of a
potential reduction in the risk of marihuana for medical purposes
being diverted to the illicit market, and property damage and/or
fire hazards associated with the production of a significant
number of marihuana plants in one location.

JCT: Yes, "because the amendments will enable designated persons
to hold more than one licence to produce... Canadians may benefit
from tighter controls on the production because of a potential
reduction in the risk of marihuana being diverted and property
damage and/or fire hazards associated with the production of a
significant number of marihuana plants in one location." You'll
note that they contradict this argument later.

> Costs
The ability to supply up to two authorized persons may result in
a small "economy of scale" for some designated persons and this
may, if anything, decrease the overall production price for
marihuana and therefore the cost to authorized persons. In this
regard, there is not expected to be any changes to the costs
facing authorizing persons.

JCT: Yes, they sure are admitting everything.

> The incremental costs to Government associated with the
proposed amendments are those related to minor administrative
system adjustments that are required to deal with tracking which
authorized persons are being supplied by each designated person,
and costs associated with the increased burden on law enforcement
and the court system. These costs will be absorbed using existing
resources. Overall, the incremental costs of these amendments on
society are expected to be negligible. There is also, given the
nature of the MMAR, no anticipated impact on competition or
domestic/international trade.

JCT: So almost no extra costs for the benefits to exemptees of
not being limited to one exemptee per grower but being limited to
only two exemptees per grower.

> Rationale
Without a reasonable limit on production by designated persons,
the current street price for marihuana, e.g. $10-15 per gram, may
encourage the potential establishment of "grow-op" size crops and
the considerable potential that marihuana being produced for
medical purposes may be diverted to the illicit market.

JCT: Imagine this "so far as yet unrealized" risk.

> Given that the Federal Court of Appeal did not provide any
direction as to the number of licences to produce a designated
person should be able to hold, the incremental change is an
interim step that respects the original intent of the Program
while Health Canada undertakes a broader review of the Program
and associated regulatory framework.

JCT: No they said limiting it limited efficiency. So I guess the
cap would be the cut point where it became inefficient. Hasn't
the government already done this to come to the conclusion that
two delivered maximum efficiency? Of course not, they had all
those other international considerations to take into account.

> Immediate amendments to the Regulations are necessary because
Health Canada has already received applications from authorized
persons wishing to be supplied by a designated person who already
holds a licence to produce for another authorized person and/or a
new designated person who is also referenced in other pending
applications. By way of illustration, Health Canada has already
received an expression of interest from a designated person who
is capable of supplying marihuana for up to 200 authorized
persons.

JCT: And this would be harder to police than 200 individual grow-
ops? They'll say so later!

> Consultation
In acknowledgement of the pending SCC ruling with regard to
whether or not it would hear an appeal of the Sfetkopoulos
decision, Health Canada initiated a review of the impacts of
potential negative outcomes from the court some months ago. That
review entailed a range of limited consultations with relevant
federal partners, e.g., Public Safety Canada, the Department of
Justice, the Royal Canadian Mounted Police, and the Department of
Foreign Affairs and International Trade. Health Canada officials
also met with the Canadian Association of Chiefs of Police and
representatives from the Office of the Ontario Fire Marshal.

JCT: Yes, police and government officials but no one from the
Ministry of Agriculture to explain cost efficiency?

> Federal partners were supportive of introducing enhanced
controls on the production of marihuana for medical purposes
should the leave to appeal not be granted. They emphasized the
ongoing trend towards increased personal production and the
increased risk of diversion to illicit markets this represents.

JCT: Federal partners who have no idea of cost efficiency in
Agriculture.

> Law enforcement also raised particular concerns with the
potential for situations in which a single address could house
multiple authorized persons and/or designated persons all
licensed to cultivate increasing numbers of plants, and how these
types of situations often hampers their ability to investigate
and shut down illicit "grow ops."

JCT: "Duhhhh. Having them all in one place makes it easier to
hide the illegal ones from us." RCMP Sgt. Dudley Do-Right.

> Law enforcement stressed that the lack of controls on
production combined with the possibility of producing a large
quantity of marihuana would most certainly lead to increased
numbers or licence violations, e.g., where the amount of
marihuana being produced is far more than what has been
authorized via licence.

JCT: "All in one place makes it harder for us to catch over-
production." RCMP Sgt. Dudley Do-Right

> The Office of the Ontario Fire Marshal was particularly
concerned with the potential risk of fire in situations where
large amount of marihuana for medical purposes are being
produced. They stressed their preference for the introduction of
much tighter security requirements and enhanced controls on the
size of production sites allowed under the MMAR.

JCT: "Even though all legal grow-ops are up to code, the bigger
ones won't be." RCMP Sgt. Dudley Do-Right

> Implementation, enforcement and service standards
Health Canada will have to review all applications from
authorized persons seeking to modify their current supply
arrangements via the designation of a new person to produce on
their behalf. An assessment of whether or not the changes are
allowed according to the new limit on the number of production
licences a single designated person can hold will also have to be
made. Health Canada will also need to develop a system that
tracks exactly which authorized persons are being supplied by
which designated persons in order to avoid the issuance of too
many licences to produce to existing and new designated persons.

JCT: Health Canada's going to have avoid screwing up and we know
how almost-impossible that is.

> The current service standard for the processing of an
application from a prospective authorized person and/or an
existing authorized person wishing to make changes to their
authorizations and/or licences is up to eight (8) weeks. Despite
the increased administrative burden referenced above, it is not
expected that this service standard will change with the
implementation of the amendments.

JCT: And we can use the Federal Court Rouleau decision from the
Robert Neron - Johnny Dupuis case to demand our answers in 30
days before we can ask a judge to a judicial review. Why should
it take 10 weeks for the paperwork to get done? I'd love to get
them under examination and ask the timeline. "It sits on his desk
for 2 weeks, then her desk for 3 weeks, then his desk for 2 more,
then..."

> At the present time, compliance and enforcement with the MMAR
is handled cooperatively with law enforcement in that Health
Canada has limited powers for administrative enforcement, e.g.,
ability to revoke a licence, etc., and is able to share certain
information about production licence holders with law
enforcement, who can then, as required, carry out criminal
investigations and lay associated charges under the CDSA, the
Criminal Code or other relevant deferral statutes. Implementation
of the amendments will not have any direct impact on these
arrangements, although increased information exchange with law
enforcement may be required as they continue to carry out
investigations of suspected illegal marihuana production and
require confirmation as to who is licensed by Health Canada, what
quantity of marihuana a particular production licence holder is
authorized to produce, etc. There may also be an increase on the
number of marihuana for medical purposes-related cases presented
before the courts.

Wider stakeholder consultation will have to be carried out as
Health Canada proceeds with its broader review of the Program and
related regulations.
Contact  Daniel Galarneau
Policy and Regulatory Affairs Division
Office of Controlled Substances
Tobacco and Drugs Directorate
Health Environments and Consumer Safety Branch
Telephone: 613-946-6521
Email: OCS_policy_and_regulatory_affairs@hc-sc.gc.ca

JCT: So that's what the Government did to correct the flaw in
S.41 found in the MMAR by Sfetkopoulos Note what they said:
"on April 23, 2009, and subsection 41(b.1) became invalid
immediately" and note what they did: " AMENDMENT
1. Paragraph 41(b.1) of the Marihuana Medical Access
Regulations (see footnote 1) is replaced by:
(b) if the designated person would become the holder of
more than two licences to produce;"

If S.41 was struck down and is to be deemed repealed, can it be
amended to bring it back to life? Or would they have to say:
S.41(b.1) is repealed and now we're re-enacting it? Probably not
because the Court repealed it and they only have to re-enact it.
Like the Hitzig Court repealed it and they had to put it back.
More coming on this "repeal" or not issue.

Now for the R v. Beren case where the court ruled both the S.41
limit on exemptees per grower unconstitutional but also the
s.54.1 limit on growers per site as unconstitutional.

R v. BEREN
http://www.gazette.gc.ca/rp-pr/p2/2010/2010-03-31/html/sor-dors63-eng.html

Canada Gazette
Vol. 144, No. 7 - March 31, 2010
Registration
SOR/2010-63 March 11, 2010

CONTROLLED DRUGS AND SUBSTANCES ACT

Regulations Amending the Marihuana Medical Access Regulations

P.C. 2010-289 March 11, 2010

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. Paragraphs 32(d) and (e) of the Marihuana Medical
Access Regulations (see footnote 1) are replaced by the
following:

(d) the proposed production site would be a site for
the production of marihuana under more than four
licences to produce; or

(e) the applicant would be the holder of more than two
licences to produce.

2. Section 54.1 of the Regulations is repealed.

3. Subsection 63(2)...

JCT: Notice here that they repealed the S.54.1 regulation with
the cap on growers and move the cap on growers/site to S.32(d).
And they also moved the cap on exemptees/grower to S.32(e). But
they never repealed S.41 did they? Of course, they didn't have
to. Sfetkopoulos had struck it down, they didn't need to repeal
it, it was already deemed repealed. Also here, they don't need to
repeal it after Beren struck it down, it's already deemed
repealed.
So why do they say here they repeal the S.54.1 limit before
reinstating it under s.32(d) but only reinstate the s.41 limit
struck down by Sfetkopoulos under S.32(e) without first repealing
like they did for Beren?

REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)

Executive summary
Issue:On February 2, 2009, the British Columbia Supreme Court
(BCSC) in the case of R. v. Beren and Swallow declared paragraph
41(b.1) and section 54.1 to be invalid on the grounds that it
infringes section 7 of the Canadian Charter of Rights and
Freedoms (the Charter). Section 54.1 of the Marihuana Medical
Access Regulations (MMAR) stipulated that the holder of a licence
to produce shall not produce marihuana in common with more than
two other holders of licences to produce. The effect of the
declaration of invalidity was stayed for one year, however, in
order to provide the Government with time to modify the MMAR as
required.

While the Government had already addressed the issue with
paragraph 41(b.1) in amendments to the MMAR made in May 2009, it
sought leave to appeal the BCSC decision to the Supreme Court of
Canada (SCC). The leave to appeal was dismissed, however, on
January 14, 2010, and thus the stay of the declaration
invalidating section 54.1 of the MMAR was set to expire on
February 2, 2010.

The Government put forward a motion for a further stay
of the declaration of invalidity until May 2, 2010 and
the BCSC agreed to extend the stay to March 3, 2010.
However, they imposed conditions to consider this
request that could not be met in light of the Cabinet
confidentiality. Therefore, section 54.1 of the MMAR
became invalid on March 3, 2010.

The declaration that section 54.1 of the MMAR is invalid has
created a significant regulatory void in that the Minister of
Health no longer has the authority to restrict the number of
production licences that can be issued with reference to the same
site. While the government is still considering longer term
options for the Marihuana Medical Access Program (the Program)
and the MMAR, these amendments provide a swift response to
address the regulatory void created by the declaration of
invalidity.

Description: This regulatory initiative amends the MMAR by
repealing the current restriction on the number of production
licence-holders who can produce marihuana in common, and by
introducing a new limit of four (4) on the number of production
licences that can be issued with reference to the same production
site.

JCT: So why did they repeal S.54.1 in Beren before introducing a
new S.32(d) cap and not repeal S.41(b.1) in Sfetkopoulos before
introducing the new S.32(e) limit?

> The initiative will also introduce two new revocation
authorities pertaining to the production of marihuana licensed
under the MMAR. The first provides the Minister with the
authority to revoke the excess production licence issued with
reference to a site already authorized for four (4) production
licences. The second provides the Minister with the authority to
revoke a production licence in the case where a licence-holder is
not compliant with section 52 of the MMAR which stipulates that
production licence-holders can only produce marihuana at the
production site authorized in their licence and only in
accordance with the authorized production area. Finally, the
initiative also amends paragraph 32(e) of the MMAR in order to
increase the maximum number of production licences a holder of a
personal-use production licence can hold to two (2). As described
in more detail in the Objectives section, this is a consequential
amendment aimed at addressing issues arising from the
implementation of amendments to the MMAR published under
SOR/2009-142.

Cost-benefit statement: As described below, large-scale
marihuana production creates potential risks to public
health, safety and security of not only those persons
directly involved, but also those living at the same
address, adjacent residential units, and/or in the
surrounding community.

JCT: Without prohibition leaving it in the hands of criminals, it
wouldn't be more dangerous than large-scale tomato production.

> The attractive street value of marihuana (approximately $10-
15/gram) and the wide use of marihuana as a recreational drug
could make large-scale marihuana production operations more
vulnerable to theft and diversion which may result in potential
risk to public health, safety and security. Government
intervention to introduce a new limit on the number of production
licences that can be issued with reference to a single site will
provide benefits by constraining the number of marihuana plants
that can be grown at one site, thereby reducing the
aforementioned risks. The amendments also respect the original
intent of the Program, (i.e. enabling seriously ill Canadians to
have access to marihuana for medical purposes).

Business and consumer impacts: The amendments still provide
production licence-holders with a small potential economy of
scale as four (4) production licenses for medical marihuana can
exist for the same site.

Implementation of the amendments will result in a minimal
increase in the administrative burden on Health Canada, as
systems and processes to administer the MMAR are already in
place, and no changes to the system currently used to track
production licence-holders, authorized persons and the amount of
marihuana being produced under licence at the same site are
required.

Domestic and international coordination and cooperation: This
initiative underscores the Government's commitment to controlling
the production and distribution of marihuana, as required by the
Controlled Drugs and Substances Act (CDSA) and the United Nations
Single Convention on Narcotic Drugs, 1961, to which Canada is a
signatory. It is expected that the International Narcotics
Control Board and Canada's law enforcement will be supportive of
the proposed amendments as they serve to limit the amount of
marihuana for medical purposes that can be produced at a single
site, reducing the potential for commercial size grow operations,
and the potential for diversion to the illicit market.

JCT: I told you they'd contradict themselves. Earlier they
explained how less grow-ops made diversion harder and how they're
saying reducing size reduces potential for diversion. Har har.
Don't you just love the lawying done by bureaucrats.

> Issue
JCT: Same as above May 14 2009 Sfetkopoulos reasoning

> The recent invalidation of subsection 54.1 of the MMAR
establishes a regulatory void in that the Government of Canada no
longer has the ability to restrict the number of production
licences (either PUPL or DPPL) that could be issued in reference
to the same site. The decision in Sfetkopoulos, Dora et al v. AG
of Canada invalidated the one to one designated person to
authorized person ratio. The MMAR were amended to address the
Sfetkopoulos court decision in May 2009 (SOR/2009-142) in order
to introduce a new limit on the number of production licences a
designated person can hold. Currently, a designated person can
only cultivate marihuana for a maximum of two authorized persons.

JCT: Note, the MMAR were amended to cap exemptees/grower at 2.
Not repealed and re-enacted like for Beren.

> The invalidation of section 54.1 impedes the Government of
Canada's ability to limit the number of licences and, by the same
fact, the amount of marihuana plants legally produced at a single
site. The absence of a limit could, in turn, give rise to
situations in which large numbers of marihuana plants could be
legally produced at a single site, without the benefit of the
tight controls applied to the production and handling of
marihuana by the private company under contract for the
government or for other controlled substances regulated under the
CDSA. The Government's inability to limit the number of licences
and thereby the amount of marihuana plants could compromise the
intent of the MMAR, which is to authorize the possession and/or
production of marihuana for medical purposes on an individual
basis while minimizing the potential risks to public health,
safety and security.

JCT: The Government's inability to limit size could compromise
the intent to keep it on an individual basis while minimizing the
potential risks to public health, safety and security. Keeping it
on an individual basis is what was found unconstitutional and
limiting size does not minimize risks, remember, less grow-ops
reduces risk! Ah, how the lawying shysters are blind.

> The inability of the Government to restrict the number of
production licence-holders who can produce at the same site could
mean that it would be possible for multiple production licence
holders who are authorized to produce a high number of plants to
also cultivate at the same site. Such a situation may blur the
line for law enforcement between legal production under the
auspices of the MMAR and illicit marihuana "grow operations."

JCT: The line for law enforcement between legal production by one
large grow-op under the auspices of the MMAR and illicit
marihuana "grow operations" among 200 small ones may be blurred?
Har har har. Again, the opposite is true.

> The Minister of Health has therefore elected to make amendments
to the MMAR which are intended to reduce the possibility that the
declaration of invalidity of section 54.1 might result in the
proliferation of large scale marihuana production operations
within the auspices of its Marihuana Medical Access Program.

JCT: So their intent is to impose unconstitutional limits no
matter how many times they get struck down.

> Objectives
The primary objective of these amendments is to address the
regulatory void resulting from the striking down of section 54.1,
thus maintaining a degree of control over the production of
marihuana, a controlled substance whose production, except as
authorized under the Regulations, is prohibited. The introduction
of a new limit on the number of production licences (PUPLs or
DPPLs) that can be issued with reference to the same site as well
as the introduction of two new revocation authorities pertaining
to the production of marihuana licensed under the MMAR is
intended to mitigate the potential risks to public health and
safety (where this includes the risk of diversion and/or theft)
associated with the large-scale under-regulated production of
marihuana.

The second objective is to introduce an amendment required to
address issues arising out of the amendments published under
SOR/2009-142. In the aforementioned amendment, the limit on the
maximum number of production licences a designated person can
hold was increased to two (2). The Government omitted, however,
to consider the impact of this new limit on designated persons
who are not currently PUPL-holders but who may wish at some point
to hold a PUPL. Accordingly, the Government is now seeking to
increase the maximum number of production licences a holder of a
PUPL can hold to two (2), so that an individual who is already a
designated person can also apply for and be issued with a PUPL.

By instituting these amendments, the Government is still allowing
Canadians with debilitating medical conditions to access a legal
source of dried marihuana for their own personal use, while
minimizing the potential risks to public health, safety and
security associated with large-scale production. The amendments
may also provide production licence-holders with the opportunity
to realize some economies of scale via production in common with
other licence-holders.

Regulatory and non-regulatory options considered

Three options were considered in addressing the invalidation of
section 54.1 of the MMAR.

The first option considered was to take no action in response to
the invalidation of subsection 54.1 of the MMAR. This would,
however, do nothing to mitigate the potential but not
insignificant health, safety and security risks associated with
large-scale production of marihuana in an under-regulated
environment.

JCT: Do they really have to mitigate unproven potential? Has
normal policing proven insufficient? Have the regular police so
failed us that it takes Justice Ministry officials to take care
that exemptees don't break the Criminal Code? Har har har. How
stupid of their worries when no one's done anything yet.

> The second option considered was to amend the MMAR to introduce
security requirements for high-volume production sites (e.g.
persons cultivating over a certain number of plants and/or at
sites where more than a certain number of persons are cultivating
in common). This option would likely restore some level of safety
and security over the production of marihuana within the confines
of the Program, and it may address some concerns raised by fire
chiefs. However, as with the first option, it does not address
the potential proliferation of legal commercial-size "grow
operations." Furthermore, it does not allow the government to
respond swiftly to the regulatory void resulting from this recent
court decision.

The third option considered was to repeal section 54.1 of the
MMAR and establish a new limit on the number of production
licences that can be issued with reference to the same site, and,
in order to ensure appropriate enforcement of this limit,
introduce new revocation authorities that would allow the
Minister to revoke the excess production licences issued with
reference to a site authorized under more than four (4) other
production licences. The advantages of this option are that it
restores a certain level of control over the production of
marihuana under the auspices of the MMAR, while not imposing any
new restrictions on licensed producers. This option also
mitigates the potential health safety and a security risk
associated with the large-scale production of marihuana while
respecting the original intent of the program, i.e. enabling
seriously ill Canadians to have access to marihuana for medical
purposes.

JCT: "It restores a certain level of control over the production
of marihuana" which has so far been twice found too limiting. And
they're trying again.

> Benefits and costs
The cost-benefit analysis assumes that failing to restore a limit
on the number of licences will result in larger amounts of
marihuana being produced under the auspices of the MMAR at one
site, which would lead to increased risk to public health, safety
and security. Quantification and/or monetization of these impacts
are, however, limited by the availability of quantitative data.

JCT: Again, the original part of the contradiction, less larger
grow-ops for Canada's 5,000 exemptees means increased risk of
diversion over 5000 small grow-ops. 25 200-exemptee grow-ops
would be harder to police than 5000 1-exemptee grow-op like they
tried before. So now they'll have 2,500 2-exemptee sites to
police instead of 25 200-exemptee sites to police. Government th
thinking at its best.

> Benefits
In general, social benefits are not limited to reductions in
expenses or increased earnings but also include non-monetary
gains to society such as avoiding the pain and suffering of
illness. In this regard, they can be assessed and measured in
terms of avoided social losses.

The three main groups within the Canadian public who will benefit
from the amendments are production licence-holders (either PUPL
or DPPL), persons who are authorized to possess marihuana for
medical purposes, and other Canadians.

JCT: These guys and the others too add up to?

> More specifically, production licence-holders may be able to
achieve some economy of scale by growing in common with other
production licence-holders up to the point where four (4)
licences to produce may be issued with reference to the same
site. Persons who are authorized to possess marihuana but who do
not hold a licence to produce may also benefit but only if they
obtain their supply from someone who produces in common with
other production licence-holders.

Canadians at large also benefit from the re-establishment of
tighter controls on the size of production operation of marihuana
for medical purposes because of reduced exposure to the potential
health, safety and security risks, including, but not limited to,
the risk of theft, diversion and/or fire hazards that could be
associated with the production of a significant number of
marihuana plants in one site.

JCT: And of course, Canadians do not benefit from more small
grows rather than less big grows.

> Costs
The ability for four production-licence to be issued with
reference to a single site may result in a small "economy of
scale" for the holders of the licences and this may, if anything,
decrease the overall production price for marihuana and therefore
the costs borne by PUPL- and DPPL-holders. Thus, there is not
expected to be any increase in the costs borne by authorized
persons.

JCT: Yes, upping it from 3 to 4 growers per site offers a small
economy scale but why should they not seek the maximum efficiency
and lowers costs?

> The incremental costs to Government associated with the
amendments are those related to minor administrative/program
adjustments in order to monitor the number of production licences
issued with reference to the same site. The costs associated with
these changes will be absorbed using existing resources. The
overall costs of these amendments on society are expected to be
negligible. There is also, given the nature of the MMAR, no
anticipated impact on competition or domestic/international trade
resulting from these amendments.

JCT: Right, changing it from 3/site to 4/site changes almost
nothing in the twice-declared unconstitutional limit.

> Rationale
Establishing a means by which the Government can control the size
of the legal production of marihuana in Canada is consistent with
its policy direction on controlling the production and
distribution of controlled substances. It also underlines the
message that the production of marihuana under the auspices of
the MMAR must be limited at providing reasonable access to
Canadians suffering from serious illnesses who are authorized to
possess marihuana under the same regulations. In addition,
without a reasonable limit on legal cultivation of marihuana
under the auspices of the MMAR, the current street price for
marihuana (e.g. $10-15 per gram) and the wide use of marihuana as
a recreational drug could make large-scale marihuana production
operations more vulnerable to theft and diversion, which may
result in potential risk to public health, safety and security.

JCT: Worried about diversion that hasn't been shown in 10 years
of exemptions so far.

> In additional consultations further to the SCC's dismissal of
the Government's request for leave to appeal and subsequent
motion for a stay, the RCMP stressed its concern for potential
situations in which a single site could house multiple authorized
persons and/or designated persons all licensed to produce
increasing numbers of plants. They also reiterated that, any time
production licences under the MMAR allows for the cultivation of
more than 50 plants, their ability to distinguish between
licensed production and illicit "grow ops" is seriously hampered.
In correspondence to the Department, the RCMP indicated its
support for any changes to the MMAR that Health Canada could make
expeditiously, thereby avoiding a situation where there would be
an influx of current and/or prospective licences issued in
reference to a same site further to the invalidation of section
54.1.

Jct: "For  more than 50 plants, our ability to distinguish
between licensed production and illicit "grow ops" is seriously
hampered." RCMP Sgt. Dudley Do-Right.

> Implementation, enforcement and service standards
Promulgation of the amendments will result in Health Canada
having to review each incoming application for a production
licence (DPPL or PUPL) carefully in order to ascertain that the
proposed production site is not already referenced in four (4)
other production licences.

JCT: Instead of Health Canada humans doing it, I'll write them a
few lines of computer code that checks the database for anyone
with more than 5 licences! Har har har har. Dudley Do-Right.

> The same process will apply for applications to renew or amend
a production licence.

JCT: Renewals and amendments will have to have their "Licences"
field checked by humans again? I can write them a piece of code..

> As mentioned previously, Health Canada does not need to modify
the system it uses to track authorized persons, DPPL-holders and
PUPL-holders.

JCT: But they can't track the number of licenses?

> The current service standard for the processing of an
application from a prospective production licence-holder or an
existing production licence-holder wishing to make changes to
their licence is eight (8) to ten (10) weeks.

JCT: Takes a lot human time to process a doctor-signed form they
can't refuse, doesn't it?

> Despite the increased administrative burden referenced above,
it is not expected that this service standard will change with
the implementation of the amendments.

JCT: The increased administrative burden, their service standard
will be up to par. Har har har. Spending time looking for people
with too many licenses!

> Implementation of the amendments is not likely to have an
impact on the present way in which compliance and enforcement
with the MMAR is handled. Should a scenario arise where excess
production licence are authorized at a site, and/or a licence-
holder is found to be producing marihuana for medical purposes at
a site or production area not authorized on their licence, Health
Canada now has the authority to revoke the non-compliant
production licences.

JCT: The scenario where they screw up and issue more licenses to
one site than it should have, they can now revoke their erroneous
license.
Contact  Daniel Galarneau

JCT: I think the point is that caps are unconstitutional because
they are not efficient. Let's say that it's found that 1 grower
can handle 20 exemptees optimally. Let's say it's found that 1
site can handle 10 growers optimally. So instead of the 1 grower
for 200-exemptees that Health Canada fears on one hand or the 200
growers for 200 exemptees Health Canada has striven for, it
would be found that cost efficiency would cap grow size and site
size naturally.

So, they've reinstituted the S.41 exemptees/grower cap at 2
instead of 1 in S.32(e) and the S.54 growers/site cap at 4
instead of 3 in S.32(d). So we can argue the law's dead again and
was only alive since Feb 2 2010 when Beren officially took effect
and the government felt so helpless and Mar 31 2010 when they
decided to reinstate caps again and make the MMAR flawed once
again. Or so we'll have to now prove once again that 2 isn't
enough better than 1 nor is 4 enough better than 3. A job for
Alan Young, no doubt.

This may bave been long but I had to read it too, as well as
write it too, so it's information we all should know. We're
dealing with the trickiest, lawyingest shysters the Canadian
government has so we may as well have the facts at hand.

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