THE DEVELOPMENT OF MEDICAL MARIHUANA

LAW IN CANADA AND ITS EFFECT ON

MICHIGAN MARIHUANA STATUTES
David Rudoi1 & Savannah Priebe

I. INTRODUCTION ...................................................................................... 335

II.THE LAW................................................................................................ 336
A.Canada ........................................................................................ 336
B.Marihuana Medical Access Regulations (MMAR) .................... 339
C.Marihuana for Medical Purposes Regulations (MMPR) ............ 342
D. Proposed Decriminalization of Marihuana in Canada ................ 352
E. The United States ........................................................................ 353
III.THE RELATIONSHIP BETWEEN CANADA AND MICHIGAN.................... 370
IV. CONCLUSION ....................................................................................... 372

I. INTRODUCTION

The cannabis plant has been utilized as a resource by civilizations

throughout the world over thousands of years.2 Cannabis has been used
as medicine, fuel, food, clothing, and as a means of intoxication.3 In
depth studies have been conducted to determine the physical and
psychological effects of “mari[h]uana (the dried bud of the female
plant).”4 These studies have found a few minor risks, but overall have
discovered a multitude of benefits that can be derived from the use of
marihuana.5 In fact, it has been stated that “the single greatest risk
encountered by the user of marihuana in any state in this country [the
United States] is that of being apprehended as a common criminal,

1. David Rudoi is an attorney at Rudoi Law in Royal Oak, Michigan. Mr. Rudoi
presented this material at the February 19, 2016 Michigan State International Law
Review symposium entitled “Emerging Narratives: Developments in Global Drug
Policies.”
2. Leah Spicer, Historical and Cultural Uses of Cannabis and the Canadian
“Marijuana Clash,” PARLIAMENT CAN., L. & GOV’T DIV. (Apr. 12, 2002),
http://www.parl.gc.ca/Content/SEN/Committee/371/ille/library/Spicer-e.htm.
3. Id.
4. Carolynn Conron, Canada’s Marihuana Medical Access Regulations: Up in
Smoke, 6 ALB. GOV’T L. REV. 259, 261 (2013).
5. Id.
336 Michigan State International Law Review [Vol. 25.2
incarcerated, and subjected to untold damage to his social life and
career.”6
Recreational use of marihuana has been criminalized in both Canada
and the United States for decades. However, the medical use of
marihuana has been decriminalized in Canada since 2001, defensible in
areas of the United States beginning in 1996, and defendable in Michigan
following the passing of a voter initiative in 2008.7 Due to the close
proximity and inevitable social comingling of Canada and Michigan, the
evolution of Canadian medical and recreational marihuana regulations
may impact parallel statutes in Michigan specifically, as well as the
United States generally. Similarly, the accessibility of Canadians to
Michigan and Michiganders to Canada creates an undeniable relationship
between marihuana regulations in either location and marihuana
consumption in the other. The question remains, will Canada’s medical
marihuana reforms and movement towards federal decriminalization
shift Michigan’s regulations along with the United States’ federal
statutes in a similar direction?

II. THE LAW

A. Canada

The recreational use of marihuana is not permitted in Canada;

however, residents are permitted to use cannabis for medical purposes.8
Cannabis is prescribed in Canada “for conditions such as cancer,
multiple sclerosis, spinal cord injury, hepatitis, and arthritis . . . [as well
as] anxiety, stress, depression, and pain.”9

6. Ruth C. Stern & J. Herbie DiFonzo, The End of the Red Queen’s Race:
Medical Marijuana in the New Century, 27 QUINNIPIAC L. REV. 673, 687 (2009) (quoting
Lester Grinspoon, Associate Professor Emeritus in Psychiatry at Harvard Medical
School).
7. Marihuana Medical Access Regulations, SOR/2001-227 (Can.); 28 Legal
Medical Marijuana States and DC, PROCON, http://medicalmarijuana.procon.org/
view.resource.php?resourceID=000881 (last updated Nov. 9, 2016, 11:49 AM); Michigan
Medical Marihuana Act (MMMA), MICH. COMP. LAWS Ch. 333 (2008).
8. Legal Medical Cannabis Use in Canada, MARIJUANALAWS.CA,
http://www.marijuanalaws.ca/legal-laws.html (last visited Mar. 24, 2017).
9. Id.
2017] Medical Marihuana Law Development in Canada and Michigan 337
1. Criminalization of Marihuana

In 1923, the Canadian Parliament amended the Opium and Narcotic

Drug Act to include cannabis as a federally–prohibited narcotic.10 The
current Canadian legislation barring marihuana is the Controlled Drugs
and Substances Act (CDSA), which was passed in 1996.11 The CDSA
prohibits, as a federal offense, the possession, trafficking, importation or
exportation or production of any scheduled substances.12 Schedule II
substances include,

Cannabis, its preparations and derivatives, including[;] (1) Cannabis

resin, (2) Cannabis (marihuana), (3) Cannabidiol . . . (4) Cannabinol . . .
(7) Tetrahydrocannabinol . . . but not including (8) Non–viable
Cannabis seed, with the exception of its derivatives, (9) Mature
Cannabis stalks that do not include leaves, flowers, seeds or branches;
and fiber derived from such stalks.13

If a person is found possessing, selling, producing, or

importing/exporting cannabis, under the CDSA they may be incarcerated
for up to five years.14 Furthermore, if a defendant is found guilty of
trafficking cannabis they may receive a penalty of life in prison.15 Under
the CDSA, “[t]rafficking is a ‘designated substance offense,’ which is
proven once a person is found to have given or delivered a drug to
another.”16 Moreover, trafficking may be established for minor behaviors
such as handing a small amount of marihuana to a person.17 Although, a
transformation in public opinion of marihuana began in the 1960s when
its use increased, and numerous young people were being subjected to
drug investigations, criminal charges and arrests continue to persist.18

10. Diane Riley, Drugs and Drug Policy in Canada: A Brief Review &
Commentary, CANADIAN FOUNDATION FOR DRUG POLICY & INTERNATIONAL HARM
REDUCTION ASSOCIATION, Prepared for the Senate of Canada (Nov. 1998).
11. See generally Controlled Drugs and Substances Act, S.C. 1996, c 19 (Can.).
12. Id. pt. 1; Conron, supra note 4, at 263.
13. Controlled Drugs and Substances Act, sched.. II, § 1(9) (emphasis added).
14. Id. pt. I, § 4, sched. VIII.
15. Id. pt. I, §5(3).
16. Conron, supra note 4, at 264 (quoting R. v. Larson (1972), 6 C.C.C. 2d 145
(Can. B.C. C.A.)).
17. Id. (citing R. v. Lauze (1980), 17 C.R. 3d 90 (Can. Que.)).
18. Id. at 263.
338 Michigan State International Law Review [Vol. 25.2
2. The Beginning of Reform

In 1997, Terrance Parker, a Canadian citizen, was charged with

possession of marihuana following a doctor’s prescription of marihuana
as medicine for Parker’s epilepsy.19 Parker was forced to grow his own
medical marihuana when he was unable to find the medicine any other
way and was subsequently caught with the “contraband.”20 Parker
appealed the charge, claiming that it violated his rights under the
Canadian Charter of Rights and Freedoms (the Charter).21 Section 7 of
the Charter guarantees every person “the right to life, liberty and security
of the person and the right not to be deprived of those rights except in
accordance with the principles of fundamental justice.”22
Parker had severe epilepsy and had suffered from the disease for close
to forty years at the time he was arrested.23 Parker tried to control his
seizures with surgeries and other forms of medicine; however, these
treatments were only moderately successful at alleviating his
symptoms.24 Smoking marihuana “substantially reduce[d] the incidence
of [Mr. Parker’s] seizures.”25 The medicinal value of marihuana was
known at this time, yet there was no legal way to obtain the drug.26 A
company could have applied for a license to sell versions of marihuana
components, such as Canabidiol (CBD), but aside from a synthetic
version of tetrahydrocannabinol (THC), no company had done so at that
time.27 Consequently, Parker began growing the life-changing medicine
himself and was subsequently arrested for violating the Narcotics
Control Act, and later the Controlled Drugs and Substances Act.28
Parker fought the charges, and the Ontario Court of Justice found that
in fact, Parker did need the marihuana to manage his epilepsy and that
his rights had been violated under section 7 of the Charter.29 Moreover,

19. Regina v. Parker (1997), 49 O.R. 3d 481, 490 (Can. Ont. C.A.).
20. Id. at 487.
21. Id.
22. Id.
23. Id.
24. Id.
25. Parker, 49 O.R. 3d at 490.
26. Id.
27. Id.
28. Id.
29. Id. at 488.
2017] Medical Marihuana Law Development in Canada and Michigan 339
to protect Parker and others like him who need marihuana as medicine,
“the trial judge read into the legislation an exemption for persons
possessing or cultivating marijuana for their ‘personal medically
approved use.’”30 The Court of Appeals of Ontario upheld this decision
in 2000 and “concluded that the prohibition on the cultivation and
possession of marijuana is unconstitutional” in Canada.31
Nonetheless, the Court of Appeals of Ontario stated that the new
legislation should be established by the Parliament, not the court, and
provided one year for Parliament to amend the current statute so as not to
be in violation of the Charter.32 Parliament’s response came in the form
of the Marihuana Medical Access Regulations.33

B. Marihuana Medical Access Regulations (MMAR)

The Marihuana Medical Access Regulations (MMAR) were originally

enacted in July 2001.34 The Marihuana Medical Access Regulations
authorized possession of dried marihuana, “for the medical purpose of
the holder.”35 The permitted medical conditions enumerated in these
regulations include cancer, AIDS/HIV, multiple sclerosis, spinal cord
injury or disease, epilepsy, and severe forms of arthritis.36 MMAR also
allows for the use of medical marihuana to treat symptoms caused by
these specified medical conditions.37 A Canadian resident over the age of
18 may possess medical marihuana once they have received an
authorization from the Minister, and may manufacture marihuana if they
have a license to produce.38

30. Id. at 481.

31. Parker, 49 O.R. 3d at 489.
32. Id.
33. See Marihuana Medical Access Regulations, SOR/2001-227, § 2 (Can.)
[hereinafter MMAR].
34. Id. pt. 4, § 73.
35. Id. pt. 1, § 2.
36. Id. sched. [1].
37. Id.
38. Id. pt. 2, § 35(a).
340 Michigan State International Law Review [Vol. 25.2
1. Possession of Medical Marihuana

In order to be eligible to possess marihuana under the MMAR, a

person must ordinarily reside in Canada and obtain authorization to
possess by the Canadian government through an application sent to the
Minister.39 The application for authorization must include “a declaration
of the applicant . . . a medical declaration made by the medical
practitioner treating the applicant; and . . . two copies of a current
photograph of the applicant.”40 The declaration must certify that the
applicant is aware that no notice has been issued “concerning the safety
and effectiveness of marihuana as a drug.”41 The applicant must also
certify that they: (1) have “discussed the potential risks” and benefits of
marihuana use with their medical professional; (2) are aware these risks
are not fully understood or identified; and (3) accept these risks.42
Finally, the applicant must assert, “that [the] marihuana will be used only
for the treatment of the symptom stated for the applicant.”43
The medical declaration is fairly detailed and must include itemized
information about the applicant’s medical condition.44 The medical
professional must explain the applicant’s medical condition; the
symptom(s) the condition or treatment causes; the maximum amount of
marihuana authorized; the daily amount of marihuana and the method of
use the applicant intends to use; and the “anticipated period of usage, if
less than 12 months.”45 Additionally, the medical professional must
affirm that the applicant has tried the conventional methods of treatment
and they are either “ineffective or medically inappropriate for . . . the
applicant.”46

39. MMAR, pt. 1, §§ 3-4.

40. Id. pt. 1, § 4(2)(a)–(c).
41. Id. pt. 1, § 5(1)(f).
42. Id. pt. 1, § 5(1)(f), (i).
43. Id. pt. 1, § 5(1)(j).
44. See id. pt. 1, §§ 6, 8.
45. MMAR. pt. 1, § 6(1)(b)–(d).
46. Id. pt. 1, § 6(2)(b)(v).
2017] Medical Marihuana Law Development in Canada and Michigan 341
2. Production of Medical Marihuana

A person may produce marihuana for their own medical purposes

once he or she has obtained a personal-use production license.47 In order
to obtain this license, an individual must ordinarily reside in Canada and
be over the age of 18.48 An individual with a personal-use production
license may produce marihuana in his or her ordinary place of residence,
or at a site that is not his or her ordinary residence if he or she has a
signed declaration from the owner consenting to the production.49 A
personal-use producer may produce marihuana indoors or outdoors;
however, if the production is partly outdoors then “the production site
[may] not [be] adjacent to a school, public playground, day care facility
or other public place frequented mainly by persons under 18 years of
age.”50
Once an individual is granted a personal-use production license, the
number of marihuana plants and amount of dried marihuana he or she is
allowed to produce is determined by a formula that takes into account
whether the marihuana is grown indoors, outdoors, or partially both.51
Ultimately, these formulas are complex and can be confusing for
personal-use producers, and could result in unintentional violations of the
law.52

47. Id. pt. 2, § 24.

48. Id. pt. 2, § 25(1).
49. Id. pt. 2, § 27(1)–(2).
50. Id. pt. 2, § 28(1)(g).
51. MMAR, pt. 2, § 30.
52. For purposes of the following formulas, A stands for “the daily amount of
dried marihuana [permitted], in grams,” B is the expected yield of each plant, and C is
“the growth cycle of a marihuana plant from seeding to harvesting;” C is a constant that
is always 1. The formulas are broken down based on the growth cycle of the plant, the
expected yield per plant, and whether the plants are grown inside, outside, or a
combination of both. Id. “If the production area is entirely indoors,” the expected yield of
each plant (B) is 30 grams, and the formula is: The maximum number of plants= [A x
365] y [(B x 3C)] x 1.2. Id. pt. 2, § 30(2)(a). If the production is entirely outdoors, B is
equal to 250 grams, the formula is: “D= [(A x 365) y (B x C)] x 1.3. Id. pt. 2, § 30(2)(b).
Where production occurs “pt.ly indoors and partly outdoors,” the formula “for the indoor
period” is: D = [(A x 182.5) y (B x 2C) x 1.2 where 30 grams is the expected yield, and
the outdoor portion follows the formula: D = [(A x 182.5) y (B X C)] x 1.3 where the
expected yield is 250 grams. Id. pt. 2, § 30(2)(c). Where the formula produces a fraction,
the number is to be rounded up. Id pt. 2, § 30(4).
342 Michigan State International Law Review [Vol. 25.2
A person may obtain a designated-person production license to
produce marihuana for the medical use by another person.53 An
individual is eligible for this type of license as long as they have never
“been found guilty, as an adult, within the 10 years preceding the
application, of . . . a designated drug offence, or” an offense that would
have been a drug offense in Canada.54 A Designated-Person Production
License permits an individual to transport marihuana from the site of
production directly to the residence of the licensed individual.55 The
Designated-Person must not send more than the maximum quantity
granted in the right to possess, and the dried marihuana must be securely
packaged in a way that it is indistinguishable, and will not be opened
without breaking a seal.56

3. Role of Law Enforcement in the Regulations

Generally, an officer may demand a holder of a license to possess, or

a license to produce, to display their license at any time.57 However, the
Marihuana Medical Access Regulations do not specifically provide
defenses or prohibitions on arrest or prosecution of authorized users or
producers of medical marihuana.58 In 2013, the Canadian Parliament
passed a new set of medical marihuana regulations, the Marihuana for
Medical Purposes Regulations, which significantly altered the ways in
which a person may obtain medical marihuana.59

C. Marihuana for Medical Purposes Regulations (MMPR)

The Marihuana for Medical Purposes Regulations (MMPR) were

adopted on June 6, 2013 as an annex to the Controlled Drugs and
Substance Act.60 The new Marihuana for Medical Purposes Regulations

53. MMAR, pt. 2, § 34(1)(a).

54. Id. pt. 2, § 35(b).
55. Id. pt. 2, § 34(1)(d).
56. Id. pt. 2, § 34.
57. Id. pt. 3, § 58.
58. See generally MMAR.
59. See generally Marihuana for Medical Purposes Regulations, SOR/2013-119
(Can.) [hereinafter MMPR].
60. Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 (Can.).
2017] Medical Marihuana Law Development in Canada and Michigan 343
effectively terminated the previous Marihuana Medical Access
Regulations.61 These new medical marihuana protocols shift production
away from personal home growing and toward corporate industrial
production of medical marihuana.62

1. Possession of Medical Marihuana

Similar to the MMAR, the MMPR permits a person to possess dried

marihuana if they have “obtained the dried marihuana for their own
medical purposes or for those of another person for whom they are
responsible.”63 This dried marihuana may be purchased “from a licensed
producer, in accordance with a medical document . . . from a health care
practitioner in the course of treatment for a medical condition, or . . .
from a hospital.”64 Dried marihuana is vaguely defined as, “harvested
marihuana that has been subjected to any drying process.”65
The MMPR also permits a person to possess dried marihuana if he or
she is a healthcare practitioner, a hospital employee, or a licensed
producer using it in the course of his or her profession or employment.66
Moreover, an individual may possess a portion of a patient’s dried
marihuana, not exceeding the daily quantity of dried marihuana the
patient is authorized to possess, if he or she is providing assistance in the
administration of the marihuana as medicine.67
Possession of cannabis is also permitted under certain
circumstances.68 The MMPR adopted the Controlled Drug and
Substances Act’s classification of cannabis as; “Cannabis, its
preparations and derivatives including Cannabis resin, Cannabis
(marihuana), Cannabidiol . . . but not including Non-viable Cannabis
seed, with the exception of its derivatives[,] Mature Cannabis stalks that

61. Id.
62. See generally id; see infra § II(3)(b) Production of Medical Marihuana.
63. MMPR, § 3(2)(a).
64. Id.
65. Id. pt. 1, § 1(1).
66. Id. pt. 1, § 3(2)(b), (c).
67. Id. pt. 1, § 3(6).
68. Id. pt. 1, § 4(1), (2).
344 Michigan State International Law Review [Vol. 25.2
do not include leaves, flowers, seeds or branches; and fiber derived from
such stalks.”69

a. Possession Limitations

The MMPR limits the quantity of dried marihuana an individual may

possess to no more than thirty times their daily dose, as determined by a
health care practitioner or hospital, which may not exceed 150 grams.70

2. Production of Medical Marihuana

A large portion of the MMPR focuses on licensed producers.71 A

licensed producer of marihuana has the ability to “possess, produce, sell,
provide, ship, deliver, transport and destroy marihuana.”72 They also
have permission to possess and produce cannabis, that is not marihuana,
for the purposes of testing and may then “sell, provide, ship, deliver,
transport and destroy [that] cannabis . . . [which] was obtained or
produced solely for” the testing.73
A licensed producer is permitted to “sell or provide dried marihuana
to” clients or their caregiver, hospital staff for use within their
employment, or any person the Minister permits due to medical or
scientific need.74 However, none of these transactions may occur within a
dwelling, and must occur in the place specified on the producer’s
license.75 In order to be eligible to apply for a producer’s license, a
person must be “an adult who ordinarily resides in Canada; [or] . . . a
corporation that has its head office in Canada or operates a branch office
in Canada and whose officers and directors are all adults.”76
The application for a producer’s license must be submitted to the
Minister.77 The application is extensive and includes general identifying

69. Controlled Drugs and Substances Act, S.C. 1996, c 19, sched. II (Can.)
(emphasis added).
70. MMPR, § 5; id. pt. 5, § 129.
71. See generally id. pt. 1.
72. Id. pt. 1, § 12(1)(a).
73. Id. pt. 1, div. 1, § 12(1)(c).
74. Id. pt. 1, div. 1, § 12(4)(a).
75. Id. pt. 1, div. 1, § 13.
76. MMPR, pt. 1, div. 2, § 21.
77. Id. pt. 1, div. 2, § 23(1).
2017] Medical Marihuana Law Development in Canada and Michigan 345
information of the individual or company, the “name, date of birth and
gender of . . . the proposed senior person in charge, . . . [and] the
proposed responsible person in charge,” along with the “name and
gender of each of the persons authorized” to order cannabis for the
applicant.78 In addition, the application also requires a considerable
amount of more detailed information including, “the proposed activities
that are to be conducted at each building . . . a detailed description of the
security measures . . . [and] a detailed description of the methods that the
applicant proposes to use for keeping records,” along with an agreement
to give the Minister access to the site.79 Applicants must also provide the
maximum quantity (in kilograms) of dried marihuana they plan to
produce under the license, their production period, and “the maximum
quantity ( . . . in kilograms) of dried marihuana to be sold or provided by
the applicant under the licence.”80 If the applicant for a producer’s
license intends to have more than one site, he or she must complete a
separate application for each proposed site.81 Finally, the applicant must
attach multiple signed documents including, among other things, an
affirmation from the senior person in charge stating they claim
responsibility; copies of any document filed with the province in which
they plan to have a site; a declaration that the senior person owns the
entire proposed site or a declaration signed by the owner consenting to
the proposed use; a declaration that the site is not a “dwelling place;” a
declaration stating that notices to local authorities have been provided
specifying the names of the officials and dates they were contacted; and
floor plans for the proposed site.82
Once a person or corporation has been approved as a licensed
producer, they must designate one senior person to have responsibility
for the activities carried out by the producer.83 In addition, the licensed
producer must designate a person, physically present, at the site of
production, to be in charge and have responsibility for their activities,
ensuring they comply with their license and the Food and Drugs Act.84

78. Id. pt. 1, div. 2, § 23(1)(d)–(e).

79. Id. pt. 1, div. 2, § 23(1)(g)–(i).
80. Id. pt. 1, div. 2, § 23(1)(k).
81. Id. pt. 1, div. 2, § 23(2).
82. MMPR, pt. 1, div. 2, § 23(4).
83. Id. pt. 1, div. 2, §§ 21, 22(1)(a).
84. Id. pt. 1, div. 2, § 22(1)(b).
346 Michigan State International Law Review [Vol. 25.2
These designated persons, as well as the individual or officers and
directors of the corporation, must hold a security clearance with the
Canadian government.85
After an applicant has submitted a complete producer’s license
application, “the Minister must, after examining the information and
documents required . . . and after all of the security clearances required . .
. have been granted . . . issue to the applicant a producer’s licence.”86 The
producer’s license may be effective for no more than three years before
an individual or corporation must renew.87 However, the Minister must
refuse issue or renewal of a producer’s license if the applicant is not a
resident of Canada, the applicant did not comply with the requirements
before submitting the application, or the issue or renewal would “likely
create a risk to public health, safety or security, including the risk of
cannabis being diverted to an illicit market or use.”88 The Minister is
permitted to request additional information before granting or denying a
producer’s license or renewal.89

a. Security of the Production Site

A licensed producer’s site must be designed in a way that prevents

unauthorized access.90 The site “must be visually monitored at all times
by visual recording devices[;]”91 in addition, “[t]he perimeter of the
licensed producer’s site must be secured by an intrusion detection system
that operates at all times and that allows for the detection of any
attempted or actual unauthorized access” and must be monitored at all
times by personnel.92 Records must be kept of any unauthorized access
and how the licensed producer responded to these incidents.93
Only those employees whose work responsibilities require them to be
present are allowed in areas where cannabis is present, and the

85. Id. pt. 1, div. 2, § 24.

86. Id. pt. 1, div. 2, § 25 (emphasis added).
87. See id.
88. MMPR, pt. 1, div. 2, §26(h).
89. Id.
90. See id. pt. 1, div. 3, § 41.
91. Id. pt. 1, div. 3, §43(1).
92. Id. pt. 1, div. 3, §§ 43, 44, 45(1).
93. Id. pt. 1, div. 3, § 45(2).
2017] Medical Marihuana Law Development in Canada and Michigan 347
responsible person in charge must accompany those employees.94
Additionally, areas with cannabis present must keep record of every
person entering and exiting the area, have physical barriers preventing
access, and monitor “visual recording . . . to detect illicit conduct.”95

b. Clients

A licensed producer is able to sell dried marihuana to an unlimited

number of clients; however, their clients must “ordinarily reside in
Canada.”96 Before an individual may become a client, they, or an
individual responsible for them, must submit an application to the
licensed producer.97 The application must include the applicant’s general
identifying information, the address at which they ordinarily reside in
Canada—or the name of the place they receive “food, lodging or other
social services” if they do not have a residence—and a shipping address
if it is different.98 The applicant, or the person responsible for them, must
also include their medical document and a signature affirming,

the applicant is ordinarily [a] resident in Canada; [] the information in

the application and the medical document is correct and complete; []
the medical document is not being used to seek or obtain dried
marihuana from another source; [] the original of the medical document
accompanies the application; and [] the applicant will use dried
marihuana only for their own medical purposes.99

The licensed producer must ensure the authenticity of the medical

document and verify it was “provided by a health care practitioner to a
person who is under their professional treatment.”100 The medical
practitioner must indicate, their general information,

the province in which the practitioner is authorized to practise[,] their

profession and the[ir authorization] number . . . the [applicant client’s]

94. MMPR, pt. 1, div. 3, § 46(1)–(2).

95. Id. pt. 1, div. 3, §§ 46(3), 47, 48(1).
96. Id. pt. 2, § 107.
97. Id. pt. 2, § 108(1).
98. Id. pt. 2, § 108(1).
99. Id. pt. 2, § 108(3).
100. MMPR, pt. 4, § 129(1).
348 Michigan State International Law Review [Vol. 25.2
given name, surname and date of birth; [] the address of the . . .
consult[ation] with the practitioner; [] the daily quantity of dried
marihuana to be used by the person, expressed in grams; and [] the
period of use.101

A client is required to provide a new medical document to the

licensed producer every year.102
Once the information in the medical document and on the client
application is confirmed, the licensed producer may register the
individual as a client.103 The licensed producer must then send the client
a registration document with the name of the producer, the client’s
general information, and a “unique identifier for the purpose of ordering
dried marihuana.”104 Conversely, the licensed producer must terminate
the registration of a client in the following circumstances: the client, or
someone responsible for them, tells the producer to cancel the
registration; “the client dies, ceases to be ordinarily [a] resident in
Canada or ceases to have a shipping address in Canada; [] the licensed
producer has reasonable grounds to believe” the application was made
using false or misleading information; or “the health care practitioner
who provided the medical document to the client is named in a notice
issued under . . . the Narcotics Control Regulations” that prohibits dried
marihuana from being shipped to them.105

c. Processing Orders

Prior to fulfilling an order for a client, a licensed producer must first

receive a dated order, in writing, for dried marihuana that provides the
client’s and the person making the order’s name, date of birth, the
shipping address, and the client’s unique identifier, along with “the
quantity and the brand name of the dried marihuana being ordered.”106
When fulfilling the order, a licensed producer may only provide the dried

101. Id.
102. Id. pt. 4, § 129(2)–(3).
103. Id. pt. 2, § 111(1).
104. Id. pt. 2, § 111(2).
105. Id. pt. 2, § 117(1); Narcotics Control Regulations, C.R.C., c 1041 (Can.).
106. MMPR, pt. 2, § 121(2).
2017] Medical Marihuana Law Development in Canada and Michigan 349
marihuana by shipping it to the client’s address.107 A client may only
seek and obtain dried marihuana from one source at a time.108 The
regulations also limit the ways in which dried marihuana may be sold.109
The sale of dried marihuana is prohibited “in any dosage form, such as in
a roll or capsule.”110
Further, the licensed producer must adhere to a multitude of
packaging requirements when shipping dried marihuana.111 For example,
the packaging must be “in direct contact with the dried marihuana . . .
keep[] the [] marihuana dry and free from contamination,” provide
security from being opened in transit, be child resistant, and hold no
more than 30 grams of marihuana.112 The package must also have a label
with several required specific identifiers, including: the name of the
licensed producer; the marihuana brand name; lot number; net weight;
percentage of cannabinoids; recommended storage conditions; packaging
date; the symbol “N”; the words “Dried marihuana/ Marihuana séchée;”
warnings to keep away from children; and instructions to consult the
Health Canada document.113

3. Violations of the MMPR

The MMPR provides immunity for the licensed producers and

patients who are medically prescribed marihuana.114 The CDSA creates
exceptions where the Minister is able to exempt any controlled substance
under the Act if “the exemption is necessary for a medical or scientific
purpose or is otherwise in the public interest.”115 In accordance with this
allowance, medical marihuana is exempt from the CDSA’s prohibition of
the use of marihuana in non-medical situations.116 However, stringent
regulations have been instituted in order to ensure strict adherence to the
MMPR regulations, and producers are regularly inspected by Health

107. Id. pt. 2, § 122.

108. Id. pt. 3, § 126.
109. See Id. § 6(1).
110. Id. § 6(1)(b).
111. See id. pt. 1, div. 5.
112. MMPR, pt. 1, div. 5, § 64.
113. Id. pt. 2, div. 5, §66.
114. See generally MMPR.
115. Controlled Drugs and Substances Act, S.C. 1996, c. 19, § 56(1) (Can.).
116. Id.
350 Michigan State International Law Review [Vol. 25.2
Canada.117 Furthermore, if a patient is found to possess more marihuana
than the 150 gram maximum, they may be charged with possession of
cannabis under the Controlled Drugs and Substances Act.118
As a result of these new regulations the medical industry in Canada
has experienced a shift towards a commercial paradigm that is regulated
much like the current practice with prescription drug retailers.119
Consequently, the price and daily dose of marihuana are both anticipated
to rise dramatically in adaptation of the new regulations.120 For example,
the recommended average daily dose may increase in order for
consumers to maintain a supply to last them longer than the allowed 30
days.121 Furthermore, there have been changes made to the MMPR,
Canadian case law, and the Canadian Government that have created an
unwillingness of law enforcement to prosecute marihuana possession.

a. Judicial Changes in the MMPR

In 2015, the Supreme Court of Canada found that the allowance for
medical marihuana patients to possess and use only dried marihuana,
with the continued prohibition of all other forms of marihuana, was
against the Charter of Rights.122 In R. v. Smith, the defendant, Owen
Edward Smith, was employed by Cannabis Buyers Club (The Club),
which sold marihuana and cannabis products to members of The Club.123
In order to become a member, a person was required to show The Club
that they had a bona fide medical condition qualifying them for use of
medical marihuana, as indicated by a physician.124 The Club sold dried
marihuana along with edible products, “cookies, gel capsules, rubbing
oil, topical patches, butters and lip balms[,]” along with “recipe books for
how to make . . . products by extracting the active compounds from dried

117. Archived-Accessing Marijuana for Medical Purposes- Information Bulletin,

HEALTH CAN., http://www.hc-sc.gc.ca/dhp-mps/marihuana/info/
licencedproducer-producteurautorise/access-usage-eng.php (last visited Apr. 24, 2017).
118. Possession of Marihuana, CAN. B. ASS’N, http://www.cbabc.org/For-the-
Public/Dial-A-Law/Scripts/Criminal-Law/201 (last visited Mar. 31, 2017).
119. Conron, supra note 4, at 287.
120. Id.
121. Id.
122. R. v. Smith, [2015] 2 S.C.R. 602 (Can.).
123. Id. at 607.
124. Id.
2017] Medical Marihuana Law Development in Canada and Michigan 351
marihuana.”125 Smith’s job was to extract chemicals from the cannabis
plant in order to produce the edibles and other cannabis derivatives sold
by The Club.126 Smith was not a medical marihuana user and the Club
was not licensed to produce under the MMAR.127
A complaint was made to police regarding an “offensive smell,” and
upon investigation, police discovered cookies, dried marihuana, and
liquids labeled as “massage oil” and “lip balm”.128 Testing showed the
seized evidence contained THC, which was not protected under the
MMAR.129 Smith was charged with “possession of THC for the purpose
of trafficking . . . and possession of cannabis.”130
Smith challenged the charges against him claiming the permission to
use only dried marihuana medicinally was a violation of the Charter.131
The trial court held, “The active compounds of the cannabis plant, such
as THC and cannabidiol [CBD], have established medical benefits and
their therapeutic effect is generally accepted, although the precise basis
for the benefits has not yet been established.”132 The trial court further
explained:

Different methods of administering marihuana offer different medical

benefits. For example, oral ingestion of the active compounds, whether
by way of products baked with THC-infused oil or butter, or gel
capsules filled with the active compounds, may aid gastro-intestinal
conditions by direct delivery to the site of the pathology. Further, oral
administration results in a slower build-up and longer retention of
active compounds in the system than inhaling, allowing the medical
benefits to continue over a longer period of time, including while the
patient is asleep. It is therefore more appropriate for chronic
conditions.133

125. Id.
126. Id.
127. Id. at 607–08.
128. Smith, 2 S.C.R. at 608.
129. Id.
130. Id.
131. Id.
132. Id.
133. Id. at 609.
352 Michigan State International Law Review [Vol. 25.2
In addition, the trial court noted the negative effects of inhaling
marihuana smoke, such as the introduction of carcinogens.134 The trial
judge held the prohibition against the medicinal use of marihuana in any
form other than dried was a violation of the medical marihuana user’s
liberty.135 Moreover, he held that “limiting the medical exemption to
dried marihuana does little or nothing to enhance the state’s interest in
preventing diversion of illegal drugs or in controlling false and
misleading claims of medical benefit.”136 Therefore the prohibition was
unjustified under the Charter.137
The Court of Appeals upheld the trial court’s decision.138 The
Supreme Court of Canada found that the restriction of medicinal use to
dried marihuana only limited Canadian citizens’ rights in multiple
ways.139 The Court held that, “by forcing a person to choose between a
legal but inadequate treatment and an illegal but more effective choice,
the law also infringes [on the] security of the person.”140
It appears that the Supreme Court of Canada’s decision in R. v. Smith
has paved the way for more extensive reform of marihuana use in
Canada.

D. Proposed Decriminalization of Marihuana in Canada

As of April 2016, Prime Minister Justin Trudeau promised that his

government would legalize recreational marihuana use in Canada.141 Jane
Philpott, the Canadian Health Minister, has stated that Canada’s
government “will introduce legislation to decriminalise and regulate
recreational marijuana in spring 2017.”142 Though there appears to be a
shift towards decriminalization of recreational marihuana, only time will

134. Smith, 2 S.C.R. at 609.

135. Id.
136. Id. (internal quotations omitted).
137. Id. at 610.
138. Id.
139. Id. at 612.
140. Smith, 2 S.C.R. at 613.
141. Reuters in Toronto, Canada to Introduce Legislation to Decriminalize
Recreational Cannabis, THE GUARDIAN (Apr. 20, 2016, 12:38pm),
https://www.theguardian.com/world/2016/apr/20/canada-legislation-decriminalize-
recreational-cannabis-weed-marijuana.
142. Id.
2017] Medical Marihuana Law Development in Canada and Michigan 353
show if and how recreational marihuana may be legally consumed in
Canada.

E. The United States

1. Federal Criminalization of Marihuana

In the early 1900s marihuana was not prevalent in the United States,
nor was its existence popularly known.143 Around that time, Mexican
workers were bringing over marihuana into Texas and California.144
Once cannabis was introduced to these states its use spread amongst
minorities and across multiple states.145 It is suspected that the fear of
migrant workers led to a ban on marihuana, the migrants’ choice
relaxation aide.146 Initially, cannabis was banned in El Paso, Texas in
1914.147 By 1930, the distribution of cannabis was banned in twenty-four
states, but the medicinal use of the plant was still permitted.148 It was not
until 1920 when marihuana took the hardest hit in the United States.149
“In 1920, Dr. Oscar Dowling of the Louisiana Board of Health warned
the governor and, subsequently, the U.S. Surgeon General about the
powerful narcotic that caused exhilaration, intoxication [and] delirious
hallucinations.”150 In the early 1930s physicians began publishing articles
describing the use of marihuana as a prelude to violence and criminal
acts, paving the way for Federal illegality.151 First, The Marihuana Tax
Act of 1937 was passed, which essentially banned the use and sale of
marijuana.152 This Act was ultimately found unconstitutional and
replaced with the Controlled Substances Act in 1970, which prohibited

143. Stern & DiFonzo, supra note 6, at 680.

144. Id.
145. Id.
146. Id.
147. Id.
148. Id.
149. Stern & DiFonzo, supra note 6, at 680.
150. Id. (internal quotations omitted).
151. Id. at 681–82.
152. David Solomon, The Marihuana Tax Act of 1937,
http://www.druglibrary.org/schaffer/hemp/taxact/mjtaxact.htm (last visited Apr. 25,
2017).
354 Michigan State International Law Review [Vol. 25.2
the use of substances based on schedules.153 This Act categorized
cannabis as a Schedule I drug, which was reserved for the most
dangerous and potentially addictive substances with no accepted medical
use.154 Originally, cannabis was only labeled a schedule I substance until
a report on its potential for danger could be compiled.155 However, even
after a recommendation that marijuana was not an illicit substance and
should not be a Schedule I drug, it remains in this category.156

2. The Michigan Medical Marihuana Act (MMMA)

Like the Federal Controlled Substance Act, the State of Michigan

categorizes Cannabis as a schedule I substance and prohibits the
manufacture, delivery, and possession of marijuana.157 In 2008, per a
voter referendum, the State of Michigan created a criminal defense for
the medical use of marijuana.158 Based on findings that marihuana does
in fact provide significant medicinal benefits to patients, the state of
Michigan now permits the use of marihuana to treat specified medical
ailments, such as “[c]ancer, glaucoma, [HIV], acquired immune
deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s
disease, agitation of Alzheimer’s disease, nail patella, or the treatment of
these conditions.”159 The MMMA relies on modern medical research and
the scientifically proven medicinal benefits of marihuana and the active
compounds found within it.160 The MMMA’s primary focus is on the
immunities and defenses provided for individuals who are licensed to
possess and produce marihuana for medical purposes.161
Outright, the MMMA addresses the potential conflict between the
State of Michigan’s defense for marihuana use and the United States’

153. Malik Burnett & Amanda Reiman, How Did Marijuana Become Illegal in the
First Place? (Oct. 9, 2014), http://www.drugpolicy.org/blog/how-did-marijuana-become-
illegal-first-place.
154. Id.
155. Id.
156. Id.
157. MICH. COMP. LAWS §§ 333.7212, 333.7401 (2008).
158. See Michigan Medical Marihuana Act, MICH. COMP. LAWS § 333.26421
(2008) [hereinafter MMMA].
159. Id. § 333.26423(b)(1).
160. Id. § 333.26422(a).
161. See generally id. § 333.26421.
2017] Medical Marihuana Law Development in Canada and Michigan 355
federal prohibition against any marihuana use. Specifically the MMMA
states, “[a]lthough federal law currently prohibits any use of marihuana
except under very limited circumstances, states are not required to
enforce federal law or prosecute people for engaging in activities
prohibited by federal law.”162 Furthermore, the MMMA explains that
statistics show that the majority of marihuana arrests are made under
state statutes rather than federal laws.163 The MMMA goes on to reiterate
that, “[t]he laws of Alaska, California, Colorado, Hawaii, Maine,
Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and
Washington do not penalize the medical use and cultivation of
marihuana. Michigan joins in this effort for the health and welfare of its
citizens.” 164

a. Permission to Possess Marihuana Under the MMMA

The MMMA allows for a qualifying patient, who has been licensed
and registered under the Act, to possess up to 2.5 ounces of usable
marihuana, up to twelve marihuana plants, if they have not designated a
primary caregiver, and any amount of stalks, seeds or unusable roots.165
Each patient may designate a caregiver to provide medical marihuana for
him– or herself if they choose not to grow their own.166 However, if a
patient designates a caregiver they are then unable to cultivate their own
plants.167 All marihuana plants must be in an enclosed, locked, facility at
all times.168
Though the MMMA is not entirely specific or lengthy, it does provide
several definitions to clarify some of the key terms used throughout the
Act. For instance, the definition of marihuana is taken directly from the
Michigan Public Health Code and defined as, “all parts of the plant
Cannabis sativa L., growing or not; the seeds of that plant; the resin
extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant or its seeds or

162. Id. § 333.26422(c).

163. Id. § 333.26422(b).
164. MMMA, § 333.26422(c).
165. Id. § 333.26424(a).
166. Id.
167. See id.
168. Id.
356 Michigan State International Law Review [Vol. 25.2
resin.”169 In contrast, usable marihuana is defined as, “the dried leaves
[and] flowers . . . of the marihuana plant, [and any mixture or preparation
thereof,] but does not include the seeds, stalks, and roots of the plant.”170
The aforementioned enclosed locked facility “means a closet, room, or
other comparable, stationary, and fully enclosed area equipped with
secured locks or other functioning security devices that permit access
only by a registered primary caregiver or registered qualifying
patient.”171 A qualifying patient is, “a person who has been diagnosed by
a physician as having a debilitating medical condition.”172
In order to become licensed as a patient under the MMMA, a person
must provide to the Department of Licensing and Regulatory Affairs
(LARA): “(1) [a] written certification; (2) Application or renewal fee; (3)
Name, address [unless homeless], and date of birth of the qualifying
patient, . . . (4)” general contact information for the patient’s physician;
(5) general information for the planned caregiver (if any), including
proof that the person is allowed to possess the marihuana for medical
use, and (6) “[p]roof of Michigan residency.”173 The written certification
is,

a document signed by a physician, stating all of the following:

(1) The patient’s debilitating medical condition.

(2) The physician has completed a full assessment of the patient’s

medical history and current medical condition, including a relevant, in-
person, medical evaluation.

(3) In the physician’s professional opinion, the patient is likely to

receive therapeutic or palliative benefit from the medical use of
marihuana to treat or alleviate the patient’s debilitating medical
condition or symptoms associated with the debilitating medical
condition.174

169. MICH. COMP. LAWS § 333.7106(4) (2015).

170. MMMA, § 333.26423(n) (emphasis added).
171. Id. § 333.26423(d).
172. Id. § 333.26423(l).
173. Id. § 333.26426(a).
174. Id. § 333.26423(q).
2017] Medical Marihuana Law Development in Canada and Michigan 357
In addition, the individual must be over 18 years of age, with an
exception for patients whose parents have fulfilled additional
requirements.175 Once an individual has submitted their application,
accurately, and in accordance with the department’s requirements, they
must then be issued a patient identification card within five days of
approval.176 An application may be denied only if the applicant failed to
provide all the required portions of the application, or provided false
information.177 If an applicant specified a caregiver at the time of their
application, a caregiver identification card will also be issued for their
caregiver.178 The MMMA requires that a caregiver be at least 21 years of
age, have no felony convictions within ten years of the application, and
no convictions of an illegal drug or assaultive felony.179 Each licensed
caregiver is permitted to care for up to five patients, and may possess 2.5
ounces of usable marihuana and 12 plants per patient.180

b. Immunity & Defenses Provided Under the MMMA

Section 4 of the MMMA states,

A qualifying patient who has been issued and possesses a registry

identification card is not subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to,
civil penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for the medical use of
marihuana in accordance with this act.181

However, in order to receive this immunity from arrest, a patient must

have “both his or her registry identification card and a valid driver[‘s]
license or government-issued identification card” with their image to
show to the officer.182 Furthermore, if the patient possesses in excess of

175. Id. § 333.26426(b).

176. MMMA, § 333.26426(e).
177. Id. § 333.26426(c).
178. Id. § 333.26426(d).
179. Id. § 333.26423(k).
180. Id. § 333.26424.
181. Id. § 333.26424(a).
182. MMMA, § 333.26424(a) (emphasis added).
358 Michigan State International Law Review [Vol. 25.2
his or her allowable 2.5 ounces or 12 plants, they are not permitted this
immunity.183 Similarly,

A primary caregiver who has been issued and possesses a registry

identification card is not subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to
civil penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for assisting a qualifying patient
to whom he or she is connected through the department’s registration
process with the medical use of marihuana in accordance with this
act.184

Likewise, the caregiver must also have their registration card and
photo ID, and be in strict compliance with the amount of usable
marihuana and number of plants in their possession.185 Further, Section 4
provides a presumption that a patient or caregiver is in possession of
marihuana for medical purposes as long as they have their registration
card and do not exceed their permitted amount of marihuana.186
However, this presumption may be rebutted by evidence showing
otherwise.187 It is also important to note that section 4 of the MMMA
provides an immunity for a person who “provid[es] a registered
qualifying patient or . . . primary caregiver with marihuana paraphernalia
for purposes of a qualifying patient’s medical use of marihuana,”188 as
well as a person who is “in the presence or vicinity of the medical use of
marihuana . . . or for assisting . . . with using or administering [medical]
marihuana.”189
Though Section 4 affords immunities for the medical provision of
marihuana, it also specifies consequences for those who disregard the
limitations of the MMMA.190 As such, if a registered patient or caregiver
sells marihuana to a person for the purposes of recreational marihuana
use, their registration may be revoked and they may be “guilty of a

183. See id.

184. Id.
185. Id. § 333.26424(b).
186. Id. § 333.26424(e).
187. Id.
188. MMMA, § 333.26424(h).
189. Id. § 333.26424(j).
190. Id. § 333.26424(l),
2017] Medical Marihuana Law Development in Canada and Michigan 359
felony punishable by imprisonment for not more than 2 years or a fine of
not more than $2,000.00, or both, in addition to any other penalties for
the distribution of marihuana.”191 In the event a licensed patient,
caregiver, or unlicensed individual is not in compliance with section 4 of
the MMMA, but does not explicitly disregard the Act, they may still be
provided a defense under Section 8 of the Act.192
Section 8 of the MMMA states:

a patient and a patient’s primary caregiver, if any, may assert the

medical purpose for using marihuana as a defense to any prosecution
involving marihuana, and this defense shall be presumed valid where
the evidence shows that:

(1) A physician has stated that, . . . after having completed a full

assessment of the patient’s medical history and current medical
condition made in the course of a bona fide physician-patient
relationship, the patient is likely to receive therapeutic or palliative
benefit from the medical use of marihuana to treat or alleviate the
patient’s serious or debilitating medical condition or symptoms of . . . ;

(2) The patient and the patient’s primary caregiver, if any, were
collectively in possession of a quantity of marihuana that was not more
than was reasonably necessary to ensure the uninterrupted
availability of marihuana for the purpose of treating or alleviating the
patient’s serious or debilitating medical condition or symptoms of the
patient’s . . . condition; and

(3) The patient and the patient’s primary caregiver, if any, were
engaged in the acquisition, possession, cultivation, manufacture, use,
delivery, transfer, or transportation of marihuana . . . [for medical use
only].193

An individual may assert this defense and is entitled to have the

charges dropped after showing the above elements at an evidentiary
hearing.194 In other words, Section 8 provides a defense for individuals
who can show the amount of marihuana they possessed was reasonable,

191. Id.
192. Id. § 333.26428
193. Id. § 333.26428 (emphasis added).
194. MMMA, § 333.26428.
360 Michigan State International Law Review [Vol. 25.2
only for medical use, and that a physician, through a bona fide patient
relationship, believed they would receive therapeutic or palliative effects
from medical marihuana use.195
The MMMA further addresses the potential federal preemption issue
in Section 7(e) where it states, “[a]ll other acts and parts of acts
inconsistent with this act do not apply to the medical use of marihuana as
provided for by this act.”196 Section 3(f) further defines “medical use” to
include “the acquisition, possession . . . transfer, or transportation of
marihuana.”197

c. Judicial Interpretation

The Michigan Medical Marihuana Act is not a lengthy Act, and

consequently defendants have often had to rely on judicial interpretation
to determine their fate. In the short time the MMMA has been in effect,
several cases have been in front of Michigan Judiciaries for clarification.
In Ter Beek v. City of Wyoming, the Michigan Supreme Court held
that the Federal Controlled Substances Act (CSA) did not preempt the
Michigan Medical Marihuana Act.198 Further, the Court held that the City
of Wyoming’s local ordinance prohibiting the use of land for any
purpose “contrary to federal law” was in direct conflict with and
preempted by the MMMA.199
Initially, the prosecutorial interpretation of the MMMA laws believed
there could be no affirmative defense of compliance with Section 8
unless the elements of Section 4 were satisfied.200 Luckily, the Michigan
Supreme Court fixed this discrepancy with People v. Kolanek.201 The
Court in Kolanek held that, when a defendant asserts their Section 8

195. Id.
196. Id. § 333.26427(e).
197. Id. § 333.26423(f) (emphasis added).
198. Ter Beek v. City of Wyoming, 846 N.W.2d 531, 534 (Mich. 2014).
199. Id.
200. People v. Redden, 799 N.W.2d 184, 192–93 (Mich. Ct. App. 2010)
(“Nevertheless, the prosecution argues that the affirmative defense under § 8 is
unavailable to defendants because they did not possess valid registry identification cards
at the time of the offense, in violation of § 4.”).
201. People v. Kolanek, 817 N.W.2d 528, 540–41 (Mich. 2012).
2017] Medical Marihuana Law Development in Canada and Michigan 361
defense, the defendant has a right to an evidentiary hearing on said
Section 8 defense.202 In order

to establish the elements of the affirmative defense in § 8, a defendant

need not establish the elements of § 4. Any defendant, regardless of
registration status, who possesses more than 2.5 ounces of usable
marijuana or 12 plants not kept in an enclosed, locked facility may
satisfy the affirmative defense under § 8. As long as the defendant can
establish the elements of the § 8 defense and none of the circumstances
in § 7(b) exists, that defendant is entitled to the dismissal of criminal
charges.203

Kolanek provided a step in the right direction for the clarification of

the Act’s intent to protect all who are medical marihuana users, not just
those who are registered with LARA. As the Court stated, “The stricter
requirements of § 4 are intended to encourage patients to register with
the state and comply with the act in order to avoid arrest and the
initiation of charges and obtain protection for other rights and
privileges.”204 Though, if an individual does not register or is not in strict
compliance with Section 4, they are still entitled to a defense.205
Individuals who are not eligible for Section 4 defenses are entitled to
an affirmative defense under Section 8 of the MMMA.206 In People v.
Hartwick, the Michigan Court of Appeals concluded that a Section 8
defense “specifies three elements that an MMMA defendant must
demonstrate before he can assert this defense.”207 The three elements that
a defendant must demonstrate are: (1) proof of a bona fide physician-
patient relationship under § 8(a)(1); (2) proof of the caregiver’s
awareness of the quantity of marijuana the patient is supposed to receive
and for what period of time the patient should be prescribed marijuana;
and lastly (3) whether or not the marijuana that is provided by the
caregiver is “actually being used by the patient for medical reasons.”208

202. Id. at 546.

203. Id. at 540–41.
204. Id. at 540.
205. Id.
206. See People v. Hartwick, 842 N.W.2d 545, 547 (Mich. Ct. App. 2013).
207. Id. at 552.
208. Id. at 553.
362 Michigan State International Law Review [Vol. 25.2
The bona fide physician-patient relationship would be proved by
presenting evidence that a

physician has stated that, in the physician’s professional opinion, after

having completed a full assessment of the patient’s medical history and
current medical condition made in the course of a bona fide physician-
patient relationship, the patient is likely to receive therapeutic or
palliative benefit from the medical use of marihuana to treat or alleviate
the patient’s serious or debilitating medical condition or symptoms of
the patient’s serious or debilitating medical condition.209

The court detailed the boundaries of what a bona fide physician-

patient relationship would entail and reasoned that the “mere possession
of a patient’s or caregiver’s identification card does not satisfy the first
element of a § 8(a)’s affirmative defense.”210 The second element of the
Section 8 affirmative defense requires that the patient and the patient’s
primary caregiver are not collectively in possession of a quantity of
marihuana that is more than reasonably necessary for the patient’s
treatment.211 A defendant must prove that he is “intimately aware of
exactly how much marijuana is required to treat a patient’s condition,
which he learns from a doctor with whom the patient has an ongoing
relationship.”212 The court held that “the amounts permitted in § 4 do not
define what is ‘reasonably necessary’ to establish the § 8 defense.”213 The
third and final element a defendant must prove for an affirmative defense
under Section 8 would be a presentation of evidence that the patient
actually used marihuana in a medical fashion prescribed under the
MMMA; a mere state-issued registry identification card would not prove
that the holder of the card subsequently “used” marihuana for medical
purposes.214 Although exacting, the court’s decision in Hartwick proved
to be a definitive guide as to what situations would give rise to a
successful affirmative defense under Section 8 of the MMMA.

209. Id.
210. Id. at 555.
211. Id.
212. Hartwick, 842 N.W.2d at 556.
213. Id.
214. Id. at 557.
2017] Medical Marihuana Law Development in Canada and Michigan 363
Even though the MMMA allows for caregivers to supply their patients
with medical marihuana through transfer or sale, the Michigan Supreme
Court held in State v. McQueen that Ҥ4 of the MMMA, MCL
333.26424, does not permit a registered qualifying patient to transfer
marijuana for another registered qualifying patient’s medical use.”215 In
McQueen, the defendants had a business that facilitated patient-to-patient
sales of marihuana.216 Although the defendants intended to “benefit the
transferee patient’s debilitating medical condition or symptoms,”217 the
Court found that the transfers did not qualify for immunity under Section
4 of the MMMA because “they encompass marijuana-related conduct
that is not for the purpose of alleviating the transferor’s debilitating
medical condition or its symptoms.”218 The Court interpreted that “using
or administering marijuana” under Section 4(i) would permit a “spouse
of a registered qualifying patient to assist the patient in ingesting
marijuana,”219 however it would not permit the assistance the defendants
have provided to patients in acquiring marihuana in this case.220 The
narrow interpretation of the Court’s decision with regards to “using
marijuana” was later broadened in the iconic case of People v. Mazur.221
In People v. Mazur, the defendant Cynthia Mazur helped her husband
David, who was both a registered qualifying patient and primary
caregiver for two medical marijuana patients, by “writing the date of
harvest for marijuana plants on several sticky notes.”222 The Court
focused on the definition of “paraphernalia” based on the legislation
behind the MMMA and came to the conclusion that paraphernalia
encompassed both items specifically designed for marihuana use and
items actually used in the course of ingesting marihuana.223 Thus,
anything that was actually was used to aid “a qualifying patient’s
transfer, delivery, acquisition, or cultivation of marijuana is a medical
use according to a plain-language reading of the statute” and is also

215. State v. McQueen, 828 N.W.2d 644, 657 (Mich. 2013).

216. Id. at 646.
217. Id. at 655.
218. Id.
219. Id. at 656.
220. Id.
221. People v. Mazur, 872 N.W.2d 201 (Mich. 2015).
222. Id. at 203.
223. Id. at 208.
364 Michigan State International Law Review [Vol. 25.2
paraphernalia.224 Mazur’s sticky notes were considered “marihuana
paraphernalia” because “the objects were actually used in the cultivation
or manufacture of marijuana” by detailing which plants would be
harvested at what time.225 The Court held that the sticky notes fell within
the scope of § 4(g) of the MMMA and the prosecution was “prohibited
from introducing or otherwise relying on the evidence relating to [the]
defendant’s provision of marijuana paraphernalia . . . as a basis for the
criminal charges against [the] defendant.”226 Section 4(g) of the MMMA
states that

A person shall not be subject to arrest, prosecution, or penalty in any

manner, or denied any right or privilege, including but not limited to
civil penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for providing a registered
qualifying patient or a registered primary caregiver with marihuana
paraphernalia for purposes of a qualifying patient’s medical use of
marihuana.227

The effect of this holding demonstrates that the Court has understood
this provision of the MMMA to be broadly construed in favor of a
patient’s or caregiver’s medical use of marihuana.
Another controverted portion of the MMMA centers on the ways in
which a medical marihuana patient must ingest their medicine, and in
which consumable forms the marihuana is permitted. In Carruthers, a
medical marihuana patient, and caregiver, was found with brownies
containing THC in his possession and subsequently was charged and
convicted of possession with intent to deliver marijuana.228 The
defendant appealed this conviction.229 In their original analysis of
whether those brownies were considered marihuana, The Michigan Court
of Appeals noted,

The definition [of marihuana under the MMMA] specifically excludes

the ‘mature stalks’ of the plant ‘except the resin extracted therefrom.’

224. Id.
225. Id. at 209.
226. Id.
227. MICH. COMP. LAWS §333.26424(g) (2008).
228. See People v, Carruthers, 837 N.W.2d 16, 19 (Mich. Ct. App. 2013).
229. Id. at 20.
2017] Medical Marihuana Law Development in Canada and Michigan 365
By virtue of that exception, therefore, resin extracted from mature
stalks is also expressly included within the definition of ‘marihuana.’
There is no dispute that both the raw marijuana and the brownies found
in defendant’s possession constitute marijuana under the MMMA.230

However, the Court of Appeals then discussed the MMMA’s

definition of usable marihuana, which does not include all parts of the
plant.231 Specifically, under the MMMA’s definition of usable
marihuana, the resin of the plant is not included, nor is every mixture or
preparation.232 Thus, the Court of Appeals held that in order to
“constitute usable marijuana under the MMMA, any mixture or
preparation must be of the dried leaves or flowers of the marijuana
plant.”233 The Court of Appeals relied on statutory interpretation and
failed to take into account the fact that the MMMA was created by a
voter referendum, with the purpose of “allow[ing] under state law the
medical use of marihuana; [and] to provide protections for the medical
use of marihuana.”234 The sole purpose of the act was to permit the use of
medical marihuana, not to create a confusing regulation designed to trap
medical patients in technicalities and accidental violations. Ultimately,
the defendant in Carruthers was not afforded a protection under the
MMMA because the marihuana he possessed within the brownies was
not considered usable marihuana based on the court’s analysis.235

d. Newly Enacted Legislation to the Michigan Medical

Marihuana Act

The Michigan legislature has passed a package of bills in an effort to

reform the current medical marihuana laws. Enrolled House Bill No.
4209, also known as the “Medical Marihuana Facilities Licensing Act”
was approved by the governor of Michigan, Rick Snyder, on September
21, 2016 and sets up a new scheme legalizing, licensing, and regulating
commercial medical marihuana growing, commercial medical marihuana

230. Id. at 22 (internal citations omitted).

231. Id.
232. Id.
233. Id. at 23. (internal quotations omitted).
234. MICH. COMP. LAWS §333.26424 (2008), Refs & Annos.
235. Carruthers, 837 N.W.2d at 18–19.
366 Michigan State International Law Review [Vol. 25.2
processing (creating edibles, oils, and other medical marihuana infused
products), medical marihuana provisioning centers (otherwise known as
dispensaries), safety compliance facilities, and secured transporters for
the transportation of the medical marihuana or associated products.236
This would create a very highly regulated scheme that would not directly
affect the Michigan Medical Marihuana Act; however, it would have far
reaching consequences on the state’s medical marijuana producers and
users.
The Act creates a system of checks and balances to ensure safe
consumption of medical marihuana, from seed to sale. First, a medical
marihuana licensing board of bi-partisan members appointed by the
governor will be created to ensure the Act is implemented effectively,
with the board members’ responsibilities consisting of licensing,
regulating, and enforcing the regulations throughout the state.237 Other
duties of the board include: providing oversight of a marihuana facility;
implementing and collecting the application fees, taxes and regulatory
assessments for licensees; and ensuring compliance by licensees in
accordance with health and safety standards involved with marihuana-
infused products.238 An advisory panel, consisting of seventeen members
from different occupations in relation to medical marihuana or law
enforcement, will be formed to recommend rules regarding the
administration, implementation, and enforcement of the act to the
board.239
A licensee under the Act must apply for a growing license, secured
transport license, processing license, safety compliance license, or
provision center license.240 A growing license comes in three different
classes, each prescribing a maximum number of plants that can be grown
in a growing facility.241 A safety compliance facility will test marihuana
to ensure the patients of Michigan receive unadulterated and chemical-
free medical marihuana.242 The secured transporter license “authorizes
the licensee to store and transport marihuana and money associated with”

236. 2016 Mich. Pub. Acts 281.

237. Id. § 302.
238. Id. § 302(e)–(h).
239. Id. § 801.
240. Id. § 201.
241. Id. § 501(1).
242. 2016 Mich. Pub. Acts 281, § 505.
2017] Medical Marihuana Law Development in Canada and Michigan 367
all of the different licensed entities among the Act.243 Through a secured
transport, the grower and the other different inter-connected entities of
marihuana facilities may transfer marihuana or seeds amongst each other,
but must comply with the rules set forth in the Act.244 A processing
center extracts resin from marihuana provided by a grower and creates
marihuana-infused products in compliance with the Act.245 A
provisioning center is similar to medical marihuana “dispensaries”
located throughout the state; except the provisioning center is statutorily
allowed to sell to both registered qualifying caregivers and patients.246
This facility can sell both marihuana and marihuana-infused products,
which were previously held to not qualify as “usable marihuana.”247 This
new legislation provides for a bountiful source of revenue in the form of
application fees, regulatory assessments, local and state licensing fees,
and taxes.248 A new tax will be imposed on the provisioning centers
throughout the state at the rate of three percent of gross retail receipts.249
These new sources of revenue will go towards municipalities and
counties in which a marihuana facility is located, the state treasury, the
Worker’s Disability Compensation Act of 1969, and law enforcement
agencies.250
Enrolled House Bill No. 4210 was passed by the Michigan Senate on
September 8, 2016, signed by the governor on September 21, and will be
effective on December 20, 2016.251 The bill will amend the Michigan
Medical Marihuana Act and allow for marihuana infused products to fall
within the definition of usable marihuana under the Michigan Medical
Marihuana Act and therefore receive immunity protections under the
Act.252 It would also expand the definition of medical use in order to
cover actions consistent with extracting and processing the marihuana

243. Id. § 503(1).

244. Id.
245. Id. § 502.
246. Id. § 504.
247. See People v. Carruthers, 837 N.W.2d 16, 26 (Mich. Ct. App. 2013).
248. 2016 Mich. Pub. Acts 281 §§ 601–02.
249. Id. § 601.
250. Id. § 602.
251. House Bill 4210 (2015) History, MICHIGAN LEGISLATURE,
http://www.legislature.mi.gov/(S(y1ro2pulgrh21ybnuocb2bpt))/mileg.aspx?page=GetObj
ect&objectname=2015-HB-4210 (last visited Apr. 4, 2017).
252. See 2016 Mich. Pub. Acts 283.
368 Michigan State International Law Review [Vol. 25.2
plant.253 The Act also allows for a person under the age of eighteen who
has a debilitating condition to be a registered qualifying patient as long
as their parent or legal guardian, submits a written certification from two
physicians; consents in writing to “allow the . . . patient’s medical use of
marihuana; [s]erve[s] as the qualifying patient’s primary caregiver[,]
and[;] [c]ontrol[s] the acquisition of the marihuana, the dosage, and the
frequency of the medical use of marihuana by the qualifying patient.”254
The intent of the legislature is to streamline the industry with acceptable
standards to benefit anyone who needs to use medical marihuana, while
also limiting the risk involved with the abuse of medicinal marihuana.
For example, similar to alcohol and tobacco regulations, the new act will
establish restrictions on: marihuana-infused products that are shaped to
appeal to minors, daily purchasing limits, marketing and advertising, and
maximum tetrahydrocannabinol (THC) levels for marihuana-infused
products.255
Finally, Michigan House Bill 4827256 passed by the Michigan Senate
on September 8, 2016, will require all licensees under Senate Bill 4209
to use an approved software for the seed to sale tracking of all marijuana
and marijuana related products of any kind.257 In order to comply with
the rules promulgated by Senate Bill 4209 a licensee would have to
comply with rules promulgated in House Bill 4287.258
This Act, also known as the “Marihuana Tracking Act,” will monitor
the medical use of marihuana more efficiently. The Marihuana Tracking
Act will ensure that the state has access to all of the medical marihuana
being grown, transported, processed, rejected, sold and consumed by
implementing a statewide “integrated marihuana tracking, inventory, and
verification system.”259 This system will allow law enforcement agencies
and authorized state departments and agencies to “verify[] registry
identification cards,” track the transfer and transportation of marihuana

253. Id. § 3(h).

254. Id. § 6(b).
255. 2016 Mich. Pub. Acts 281 § 206(o)–(q), (s).
256. 2016 Mich. Pub. Acts 282.
257. See id.; see also House Bill 4827 History, MICHIGAN LEGISLATURE,
http://www.legislature.mi.gov/(S(iu52yi4ct2egvnxtj5aql2er))/mileg.aspx?page=GetObjec
t&objectname=2015-HB-4827 (last visited Apr. 3, 2017).
258. See 2016 Mich. Pub. Acts 282.
259. Id. § 3(1).
2017] Medical Marihuana Law Development in Canada and Michigan 369
between licensees, and verify that transfers will not exceed the limit a
registered patient or caregiver is authorized to receive under Section 4 of
the MMMA.260 The system will provide real-time updates which would
show that a patient’s or primary caregiver’s registry card is valid or
invalid, which has been a concern of law enforcement agencies and those
who must medically use marihuana since the beginning of the MMMA’s
enactment.261
Most importantly, the system will provide data regarding the “date,
time, quantity, and price of each sale or transfer of marihuana to a
registered qualifying patient or registered primary caregiver,” and
“[e]ffective monitoring of marihuana seed-to-sale transfers.”262 The aim
of this system is to fight fraudulent and black-market transactions from
occurring due to the abuse or reckless disregard for the newly-enacted
act.
A safeguard of privacy aimed to enshroud any participant’s
involvement of the system is enabled in Section 4 of the Act. It protects
the participant’s privacy by exempting information in the system from
disclosure under the Freedom of Information Act.263 However, the
information is not completely confidential. The act continues, stating
“[i]nformation in the system may be disclosed for purposes of enforcing
this act; the Michigan medical marihuana act . . . and the medical
marihuana facilities licensing act.”264
The Act took effect on December 20, 2016.265 It is the Michigan
legislature’s response to the issues regarding the vagueness and
obscurities with the MMMA and its modern application, specifically to
“provide immunity from prosecution for marihuana-related offenses for
persons engaging in marihuana-related activities in compliance with this
act.”266 The people of Michigan have seen the ways in which the initial
MMMA laws have been interpreted adversely to patient’s and
caregivers’ needs, such as in the case of People v. Carruthers.267 This

260. Id. § 2(g).

261. Id. § 3(2)(a).
262. Id. § 3(2)(b), (d).
263. Id. § 4.
264. 2016 Mich. Pub. Acts 282, § 4.
265. See generally id.
266. 2016 Mich. Pub. Acts 281.
267. People v, Carruthers, 837 N.W.2d 16, 16 (Mich. Ct. App. 2013).
370 Michigan State International Law Review [Vol. 25.2
new Act will improve Michigan’s medical marihuana industry,
illuminating the dark crevice of ambiguous judicial interpretation that
has harmed the legislative intent of the MMMA and the patients it heals.

e. Proposed Decriminalization of Marihuana in Michigan

MILegalize, an organization which plans to introduce legislation in

Michigan that would effectively legalize marihuana and its various uses,
has recently been campaigning to decriminalize marihuana.268
Specifically, the aim of the legislation is to:

legalize and regulate marihuana and hemp cultivation, production,

testing, sale, distribution, possession, and use for medical and
nonmedical purposes; to provide for licensing of certain marihuana
establishments; to provide certain rights to persons with a doctor’s
recommendation for the use of marihuana; to authorize collection of
fees; to allow an excise tax on marihuana transfers at the point of sale;
to provide for the powers and duties of certain state and local
governmental officers and agencies; to authorize local units of
government to adopt limited regulation of marihuana facilities and
stores; and to require the promulgation of rules.269

Some details regarding the scope of the act involve: setting the
minimum age of consumption to twenty-one (unless medically
prescribed); defining medical marihuana as not only the bud of the
flower but also in the form of oils, wax, tinctures, etc.; allowing the
cultivation of marihuana plants; enacting a tax on marihuana sales, and;
licensing marihuana stores and similar facilities.270

III. THE RELATIONSHIP BETWEEN CANADA AND MICHIGAN

Though the Marihuana for Medical Purposes Regulations and the

Michigan Medical Marihuana Act have distinctly different
concentrations in their written regulations, both Canada and Michigan
share an understanding of the benefits its’ residents can receive from the

268. Read the Initiative!, MILEGALIZE, http://www.milegalize.com/read_the (last

visited Apr. 3, 2017).
269. Id.
270. Id.
2017] Medical Marihuana Law Development in Canada and Michigan 371
facilitation of medical marihuana use. In enacting the Marihuana Medical
Access Regulations, Canada benefited its citizens by permitting them to
use marihuana medically; aiding its citizens who were dealing with
serious diseases such as cancer, multiple sclerosis, spinal cord injury,
hepatitis, arthritis, as well as, anxiety, stress, depression, and pain.271
Michigan has almost identically understood and recognized the benefits
its’ citizens would receive from using medical marihuana by enacting the
MMMA, which allows patients to use medical marihuana for treating
medical ailments such as “[c]ancer, glaucoma, [HIV], acquired immune
deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s
disease, agitation of Alzheimer’s disease, nail patella, or the treatment of
these conditions.”272
Under Canada’s MMAR and Michigan’s MMMA, widely differing
systems of regulation are utilized, with Canada reducing rights for home
grows and focusing on commercial distribution and Michigan focusing
on small production for a limited number of patients.273 In Canada, the
cultivators must go through the process of obtaining a “Designated-
Person Production License” and in Michigan the cultivators are either
patients or go through the process of becoming a “caregiver.”274
Although the terminology and initial licensing procedures may be
different, the relationships between the cultivators and patients are very
much the same, taking into consideration that there are many limits under
both laws, such as limiting the number of plants to be cultivated to an
apportioned amount, and specifics regarding the maximum amount of
usable medical marihuana to be possessed by the cultivator at any given
time.275
With recent changes in Canada’s medical marihuana legislation came
the Marihuana for Medical Purposes Reform, which did not change
many aspects about the previous law except for the cultivation
requirements and allocations.276 It shifted the “Designated Person
Production License” procedures to a more stable and regulated “licensed
producers,” who had to undergo more extensive licensing procedures and

271. Legal Medical Cannabis Use in Canada, supra note 8.

272. MICH. COMP. LAWS §§ 333.26422(a) (2016).
273. See MMAR; see MMMA § 333.26424.
274. See MMAR, §38; see MMMA § 333.26424(a), (b).
275. See MMAR, §34; see MMMA § 333.26424(a), (b).
276. MMPR, SOR/2013-119 (Can.).
372 Michigan State International Law Review [Vol. 25.2
who would be under stricter guidelines than the previous “designated
person production license” holders.277 These guidelines include securing
and enclosing a marihuana cultivation facility by means of video
surveillance, gates and locks, and employing personnel to monitor the
premises constantly.278 Under the MMMA, a caregiver who cultivates
marihuana plants must keep them in an “enclosed, locked facility” and
must not allow anyone other than himself or a registered qualifying
patient to have unauthorized access to the enclosure.279 These two laws
intend for the cultivation of medical marihuana to be in the control of
those who are licensed as producers or caregivers, for practical reasons.
Lastly, Michigan case law had previously determined that “edibles”
and other marihuana-infused products for consumption are prohibited
and not recognized under the MMMA as marihuana intended for
“medical use.”280 In Canada, R. v. Smith the Supreme Court of Canada
paved the way with ruling that the prohibition of the consumption of
marihuana-infused products was disadvantageous to its’ intentions of
allowing its citizens to benefit from the uses of all medical marihuana
consumption.281 Although there are many similarities between
Michigan’s and Canada’s medical marihuana laws, this difference
between “usable marihuana” is a crucial tilting point that has recently
pushed state senators to amend Michigan’s current MMMA laws with a
further-reaching application of medical marihuana uses which now
include marihuana-infused products for consumption and regulating
state-wide sales of medical marihuana.282

IV. CONCLUSION

It seems that the new set of bills in Michigan will, in many ways,
imitate the commercial medical marihuana scheme set up in Canada

277. Id. pt. 1, div. 1, §12; Id. pt. 2, §34(1)(a).

278. Id. pt. 2, div. 3, §§ 41–48.
279. MICH. COMP. LAWS § 333.26424(a) (2016).
280. People v, Carruthers, 837 N.W.2d 16, 19 (Mich. Ct. App. 2013).
281. R. v. Smith, [2015] 2 S.C.R. 602 (Can.).
282. Michael Gerstein, Michigan Senate OKs Medical Marijuana Reform Bills,
DETROIT NEWS (Sept. 8, 2016, 6:30 PM),
http://www.detroitnews.com/story/news/local/michigan/2016/09/08/medical-
marijuana/90003264/.
2017] Medical Marihuana Law Development in Canada and Michigan 373
under the Marijuana for Medical Purposes Reform. If Michigan wants to
follow in the footsteps of Canada it is important that they also learn from
the mistakes that Canada has made. Canada now appears to be moving in
the direction of full recreational legalization of marijuana throughout the
country under the policies of new Prime Minister Justin Trudeau.
Michigan should watch Canada closely as ballot initiatives like
MILegalize are likely to legalize recreational cannabis use in Michigan
in the near future. Canada’s recreational legalization should be looked at
as an experiment for Michigan to learn from. Michigan does not have to
copy Canada blindly, but rather should reject the policies that have failed
so as to not make the same mistakes.