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Canada: Supreme Court Rules That All Forms of Medical Marijuana Are Permissible

(June 19, 2015) On June 11, 2015, in the case of R. v. Smith (2015, SCC 34, JUDGMENTS OF THE SUPREME COURT OF CANADA), the Supreme Court of Canada rendered a unanimous decision stating that all forms of medical marijuana are permissible for use. The Marihuana Medical Access Regulations, issued under the Controlled Drugs and Substances Act (CDSA), had prohibited the possession of medical marijuana of any type other than dry marijuana. (Marihuana Medical Access Regulations, SOR/2001-227 [rep. 2013 – 119, s. 267], ss.1 “dried marihuana”, 24, 34; CDSA S.C. 1996, c. 19, Justice Laws website.) The accused, who had been in possession of other forms of medical marijuana, contested the legislation on the basis of section 7 of the Canadian Charter of Rights and Freedoms, which insures the protection of the rights to “life, liberty and security of the person.” (Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c.11 (U.K.), § 7, Justice Laws website.)

The Court found that the threat of conviction for possession of other forms of medical marijuana under sections 4(1) or 5(2) of the CDSA was an infringement of the liberty of the accused. Furthermore, the limitation of viable medical options that patients could access without risking imprisonment was deemed an infringement of liberty by the Court. The restriction also violated the right to security, the Court held, by creating the choice between legal and ineffective treatment and illegal and more effective treatment. (R. v. Smith, supra, ¶ 17-18)

The seven Court justices, in examining the limitations to section 7 rights in the light of Canadian principles of fundamental justice, found that the prohibition was arbitrary and contradicted its purpose of protecting the health and safety of Canadians. Rather than protecting Canadians, they held, the restriction was imposing a treatment that can present more risks and be less effective than its derivatives. (Id. ¶ 25, 28.)

Lastly, the Court found that the violations of section 7 were not justifiable under section 1 of the Canadian Charter of Rights and Freedoms, which allows the infringement on individual rights “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Constitution Act, 1982, § 1.) In applying the Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103, JUDGMENTS OF THE SUPREME COURT OF CANADA), the Court found that the provisions failed to satisfy the need for a “rational connection” between the purpose of the legislation and the infringement on Charter Rights. (R. v. Smith, supra, ¶ 29.)

The Court did not strike down the sections of the CDSA in question, but rather declared that they are “of no force and effect, to the extent that they prohibit a person with medical authorization from possessing cannabis derivatives for medical purposes.” (Id. § 31.) The restriction, the Court stated, is “null and void.” (Id. ¶ 30.)

Prepared by Julia Heron, Law Library Intern, under the supervision of Tariq Ahmad, Senior Legal Research Analyst.