The Supreme Court of Canada has ruled that users of medical
marihuana need not “smoke their medicine” but rather can get access to the drug
in other forms. In the case of R. v. Smith, 2015 SCC 34, the
court ruled that under the Controlled Drugs and Substances Act (“Act”),
a medical access regime that permits access to only dried marihuana
unjustifiably violates the guarantee of life, liberty and security of a person
contrary to section 7 of the Canadian Charter of Rights and Freedoms (“Charter”).
The Act prohibits the possession, production and
distribution of cannabis, its active compounds and its derivatives.
However, in recognition of the fact that controlled substances may have
beneficial uses, the Act empowers the government to create exemptions by regulation
for medical, scientific or industrial purposes. The Marihuana Medical
Access Regulations created such an exemption for people who can demonstrate
a medical need for cannabis. Applicants are required to provide a
declaration from a medical practitioner certifying that conventional treatments
were ineffective or medically inappropriate for treatment of their medical
condition. Once they had met all regulatory requirements patients were
legally authorized to possess dried marihuana, defined as “harvested marihuana
that has been subjected to any drying process”.
The regulations were replaced in 2013 with new regulations,
but the situation remained unchanged – for medical marihuana patients the
exemptions from the offence was still confined to dried marihuana.
In this case, the accused, Owen Smith worked for an entity
called the Cannabis Buyers Club of Canada located on Vancouver Island.
The club sold marihuana and cannabis derivative products to its members.
It sold dried marihuana for smoking but also edible and topical cannabis
products – cookies, gel capsules, rubbing oil, topical patches, butters and lip
balms. It also provided members with recipe books for how to make
products by extracting the active compounds from dried marihuana.
Responding to a complaint about the smell of pot, police raided Mr. Smith’s
apartment and charged him with possession of THC for the purpose of trafficking
contrary to the Act and with possession of cannabis contrary to the Act.
At trial, the judge held that the prohibition on non-dried
forms of medical marihuana unjustifiably infringed section 7 of the
Charter. A majority of the British Columbia Court of Appeal dismissed the
Crown’s appeal. The matter was further appealed to the Supreme Court of
Canada.
The judgment of the seven member court was delivered by “the
court”. The court dismissed the appeal. It held that the
prohibition on possession of non-dried forms of medical marihuana limited the
section 7 Charter right to liberty of the person in two ways: (1)
the prohibition deprived Smith as well as medical marihuana users of their
liberty by imposing a threat of imprisonment or conviction under the Act;
and (2) it limited the liberty of medical users by foreclosing reasonable
medical choices through the threat of criminal prosecution. The court
ruled that by forcing a person to choose between a legal but inadequate treatment
(smoking) and an illegal but more effective one, the law also infringed
security of the person.
The court held that the limits in the regulations were
contrary to the principles of fundamental justice because they were
arbitrary. The effects of the prohibition contradicted the objective of
protecting health and safety.
The evidence presented at trial amply supported the trial
judge’s conclusions that inhaling marihuana can present health risks and that
it is less effective for some conditions than administration of cannabis derivatives.
In other words, there was no connection between the prohibition of
non-dried forms of medical marihuana and the health and safety of the patients
who qualified for legal access to it.
The expert evidence, along with the anecdotal evidence from
the medical marihuana patients who testified did more than establish a
subjective preference for oral or topical treatment forms. The evidence
demonstrated that the decision to use non-dried forms of marihuana for treatment
of some serious health conditions was medically reasonable. To put it
another way, there were cases where alternative forms of cannabis will be
“reasonably required” for the treatment of serious illnesses. In those
circumstances, the criminalization of access to the treatment infringed the
liberty and the security of the person.
In this case, the objective of the prohibition frustrated
the requirement under section 1 of the Charter that the limit on the right be
rationally connected to a pressing objective. The court found that it was
not and therefore the infringement of section 7 was not justified under section
1 of the Charter.
Regards,
Blair
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