June 11, 2015
The Canadian HIV/AIDS Legal Network, the Canadian AIDS Society and HIV & AIDS Legal Clinic Ontario (HALCO) welcome the decision today in the case of R v. Smith, in which the Supreme Court of Canada unanimously decided that patients with a legal authorization to use cannabis as medicine are entitled to consume it in various forms such as edible or topical products, and not just smoke or vapourize it in dried form.
The legal context of the case
Under the Controlled Drugs and Substances Act, it is generally a crime to possess cannabis without authorization, whether for personal use or for the purposes of “trafficking” (which is defined very broadly to include any transfer of a controlled substance from one person to another). Since 2001, there have been regulations in place creating a scheme for providing legal authorization to individuals to possess and/or produce cannabis for medical use. These regulations have been, and are subject, to ongoing criticism that they are unnecessarily restrictive.
One restriction that has remained unchanged throughout was the limitation that any authorization could only permit the legal possession of “dried marihuana,” defined as “harvested marihuana that has been subjected to any drying process.” Therefore, possessing or supplying cannabis for medical use in any other form was still a crime.
The case decided today involved charges against an employee of the Cannabis Buyers Club of Canada in Victoria, B.C. The club sold not only dried marihuana, but also edible and topical cannabis products – such as cookies, gel capsules, rubbing oil, topical patches, butters and lip balms – to its members, who are people the Club was satisfied had a bona fide medical condition for which cannabis might provide relief, based on a doctor’s diagnosis or laboratory test. His job was to produce edible and topical cannabis products for sale by extracting the active compounds from the cannabis plant.
He was charged in 2009 with both possession of cannabis and possession for the purpose of trafficking. He challenged the restriction in the regulations that limits any authorization to simply permitting the legal possession of dried marihuana.
The Canadian HIV/AIDS Legal Network, the Canadian AIDS Society and HALCO jointly intervened in the case, supporting the challenge to this unjustifiable restriction in the regulations.
The Supreme Court’s ruling
The Supreme Court’s ruling against the federal government abolishes the unjustifiable restriction in the regulations that only permits the legal possession of “dried marihuana.”
The Supreme Court unanimously concluded that the restriction permitting only the legal possession of dried marihuana infringes the rights to liberty and to security of the person under the Canadian Charter of Rights and Freedoms.
First, it infringes the right to liberty, because it exposes someone to the risk of imprisonment for possessing cannabis derivatives for medical use. Second, prohibiting possession of cannabis derivatives for medical purposes also “limits liberty by foreclosing reasonable medical choices through the threat of criminal prosecution.” In addition, “by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the law also infringes security of the person.” Forcing people to take their medicine by smoking dried marihuana as opposed to ingesting it in other forms that might be more suitable treatment for them, and without the harms associated with smoking, would affect a person’s health.
The Court declared that this restriction in the regulations infringes these rights “in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice.” The restriction was arbitrary because, while the stated goals of prohibiting other forms of medical cannabis were health and safety, in fact the prohibition “forces people with a legitimate, legally recognized need to use marihuana to accept the risk of harm to health that may arise from chronic smoking of marihuana. It follows from these findings that the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care. The effects of the prohibition contradict its objective, rendering it arbitrary.”
Arbitrary limits on the rights to liberty and security of the person, which are protected by section 7 of the Charter, are “not in accord with the principles of fundamental justice.”
By the same reasoning, the Court concluded that there was “no rational connection” between the prohibition on non-dried forms of marihuana and the stated goal of protecting health and safety – and therefore the violation of Charter rights could not be justified under section 1 of the Charter.
To remedy this violation of constitutional rights, the Supreme Court declared that it is now legal to possess cannabis derivatives, and not just dried marihuana, for medical purposes. This ruling takes effect immediately.
The Court’s judgment can be read here: http://tinyurl.com/plqo84z.