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.