Medical marijuana legal in all forms, Supreme Court rules

medical weed
Medical marijuana patients will now be able to consume marijuana — and not just smoke it — as well as use other extracts and derivatives, the Supreme Court of Canada ruled today.

The unanimous ruling against the federal government expands the definition of medical marijuana beyond the "dried" form.

The country's highest court found the current restriction to dried marijuana violates the right to liberty and security "in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice."

Restricting medical access to marijuana to a dried form has now been declared "null and void" — Sections 4 and 5 of the Controlled Drug and Substances Act, which prohibits possession of non-dried forms of cannabis, will no longer be in effect.

The decision upholds earlier rulings by lower courts in British Columbia that said they went against a person's right to consume medical marijuana in the form they choose.

Many users felt smoking it was even potentially harmful. However, methods such as brewing marijuana leaves in tea or baking cannabis into brownies left patients vulnerable to being charged with possession and trafficking under the law.

According to evidence submitted to a prior judge, it came down to forcing a person to choose between a legal but inadequate treatment, and an illegal but more effective choice.

The case stems from the 2009 arrest of Owen Smith in Victoria.

Smith, a baker for the Victoria Cannabis Buyers' Club, was found with more than 200 cookies and 26 jars of liquids, including cannabis-infused massage oils and lip balms. The baker was charged with possession for the purpose of trafficking and unlawful possession of marijuana.

The club delivers medical marijuana products to its members.

Smith was acquitted by a British Columbia judge, who gave the federal government a year to change the laws around extracts.

A B.C. Appeal Court also ruled in Smith's favour, leading the federal government to take the case to Canada's top court.

The Appeal Court had also suspended its declaration for a year to give Parliament time to rewrite the law. The Supreme Court has now deleted that suspension, saying otherwise it would "leave patients without lawful medical treatment and the law and law enforcement in limbo."

Thursday's decision also affirms Smith's acquittal.

From the decision:

"S produced edible and topical marihuana derivatives for sale by extracting the active compounds from the cannabis plant. He operated outside the Marihuana Medical Access Regulations(“MMARs”), which limit lawful possession of medical marihuana to dried marihuana. S does not himself use marihuana for medical purposes. The police charged him with possession and possession for purpose of trafficking of cannabis contrary to ss. 4(1) and 5(2) , respectively, of the Controlled Drugs and Substances Act (“CDSA ”). The trial judge held that the prohibition on non‑dried forms of medical marihuana unjustifiably infringes s. 7 of the Charter and a majority of the Court of Appeal dismissed the appeal."

The S.C.C. held (7:0) the appeal is dismissed, the Court of Appeal’s suspension of the declaration of invalidity deleted and S’s acquittal affirmed.

The Court wrote as follows (at paras. 1-2, 20-21, 25-32):

"Regulations under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA ”),permit the use of marihuana for treating medical conditions. However, they confine medical access to “dried marihuana”, so that those who are legally authorized to possess marihuana for medical purposes are still prohibited from possessing cannabis products extracted from the active medicinal compounds in the cannabis plant. The result is that patients who obtain dried marihuana pursuant to that authorization cannot choose to administer it via an oral or topical treatment, but must inhale it, typically by smoking. Inhaling marihuana can present health risks and is less effective for some conditions than administration of cannabis derivatives.

… This appeal requires us to decide whether a medical access regime that only permits access to dried marihuana unjustifiably violates the guarantee of life, liberty and security of the person contrary to s. 7 of the Charter . The British Columbia courts ruled it did, and we agree.

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 fact that the lay witnesses did not provide medical reports asserting a medical need for an alternative form of cannabis is not, as the Crown suggests, determinative of the analysis under s. 7 . While it is not necessary to conclusively determine the threshold for the engagement of s. 7 in the medical context, we agree with the majority at the Court of Appeal that it is met by the facts of this case. The evidence demonstrated that the decision to use non-dried forms of marihuana for treatment of some serious health conditions is medically reasonable. To put it another way, there are cases where alternative forms of cannabis will be “reasonably required” for the treatment of serious illnesses (C.A. reasons, at para. 103). In our view, in those circumstances, the criminalization of access to the treatment in question infringes liberty and security of the person.

We conclude that the prohibition on possession of non-dried forms of medical marihuana limits liberty and security of the person, engaging s. 7 of the Charter . This leaves the second question — whether this limitation is contrary to the principles of fundamental justice.

The question is whether there is a connection between the prohibition on non-dried forms of medical marihuana and the health and safety of the patients who qualify for legal access to medical marihuana. The trial judge concluded that for some patients, alternate forms of administration using cannabis derivatives are more effective than inhaling marihuana. He also concluded that 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: see Bedford, at paras. 98-100.

The Crown says there are health risks associated with extracting the active compounds in marihuana for administration via oral or topical products. It argues that there is a rational connection between the state objective of protecting health and safety and a regulatory scheme that only allows access to drugs that are shown by scientific study to be safe and therapeutically effective. We disagree. The evidence accepted at trial did not establish a connection between the restriction and the promotion of health and safety. As we have already said, dried marihuana is not subject to the oversight of the Food and Drugs Act regime. It is therefore difficult to understand why allowing patients to transform dried marihuana into baking oil would put them at greater risk than permitting them to smoke or vaporize dried marihuana. Moreover, the Crown provided no evidence to suggest that it would. In fact, as noted above, some of the materials filed by the Crown mention oral ingestion of cannabis as a viable alternative to smoking marihuana.

Finally, the evidence established no connection between the impugned restriction and attempts to curb the diversion of marihuana into the illegal market. We are left with a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object. This renders it arbitrary: see Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 83.

We conclude that the prohibition of non-dried forms of medical marihuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice. It therefore violates s. 7 of the Charter .

The remaining question is whether the Crown has shown this violation of s. 7 to be reasonable and demonstrably justified under s. 1 of the Charter . As explained in Bedford, the s. 1 analysis focuses on the furtherance of the public interest and thus differs from the s. 7 analysis, which is focused on the infringement of the individual rights: para. 125. However, in this case, the objective of the prohibition is the same in both analyses: the protection of health and safety. It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the limit on the right be rationally connected to a pressing objective (R. v. Oakes, [1986] 1 S.C.R. 103). Like the courts below, we conclude that the infringement of s. 7 is not justified under s. 1 of the Charter .

…We have concluded that restricting medical access to marihuana to its dried form is inconsistent with the Charter . It follows that to this extent the restriction is null and void.

The precise form the order should take is complicated by the fact that it is the combination of the offence provisions and the exemption that creates the unconstitutionality. The offence provisions in the CDSA should not be struck down in their entirety. Nor is the exemption, insofar as it goes, problematic — the problem is that it is too narrow, or under-inclusive. We conclude that the appropriate remedy is a declaration that ss. 4 and 5 of the CDSA are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.

We would reject the Crown’s request that the declaration of invalidity be suspended to keep the prohibition in force pending Parliament’s response, if any. (What Parliament may choose to do or not do is complicated by the variety of available options and the fact that the MMARs have been replaced by a new regime.) To suspend the declaration would leave patients without lawful medical treatment and the law and law enforcement in limbo…”

Note: The summary is a reprint of a CBC News article. The body is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.