Focus On

SCC strikes down feds’ law on marijuana

Thursday, June 25, 2015 @ 8:00 PM | By Cristin Schmitz

The Supreme Court’s invalidation of medicinal marijuana regulations marks the court’s latest refusal to uphold measures that reflect “a total disconnect” between a law’s professed positive aims and its Charter-violating effects.

According to the top court’s Charter jurisprudence, judges may strike down laws as “arbitrary” if the law’s impugned measures limit life, liberty or security of the person protected by s. 7 of the Charter in a way that has no connection to, or contradicts, the laws’ purposes.

A recent example was Canada (Attorney General) v. PHS Community Services Society [2011] S.C.J. No. 44, which invalidated the Harper government’s refusal to exempt a Vancouver safe injection site from drug possession laws.

In another drug law ruling June 11 in R. v. Smith [2015] S.C.J. No. 34, the Supreme Court held 7-0 that part of the Marihuana Medical Access Regulations which restrict sick people to using medical marijuana in its dried form (which can only be smoked or vaporized) “contradicted” the law’s objectives of promoting Canadians’ health and safety.

According to evidence, some of it from Health Canada itself, forms of marijuana or its derivatives that can be eaten or applied topically are as medically beneficial as dried marihuana, and sometimes more beneficial. Dried cannabis, when smoked, can lead to bronchitis and cancer.

“We are left with a total disconnect between the limit on liberty and security of the person imposed by the [law’s] prohibition and its object,” the court held in a per curiam judgment. “This renders it arbitrary.”

The court went on to declare that the “too narrow, or under-inclusive” regulations, which only exempt from prosecution possession of dried marijuana, are of no force or effect to the extent that they prohibit a person with a medical authorization for marijuana “from possessing cannabis derivatives for medical purposes.”

The Supreme Court’s rejection of Ottawa’s request to suspend the declaration of invalidity to give Parliament time to come up with a legislative response is a welcome development in the area of Charter remedies, said Nader Hasan of Toronto’s Ruby Shiller, co-counsel with Gerald Chan for the intervener Criminal Lawyers’ Association.

Over the years, the Supreme Court has strayed somewhat from the leading Charter remedies case of Schachter v. Canada [1992] S.C.J. No. 68, which identified three types of cases for which suspended declarations are appropriate, Hasan said.

“An additional rationale seems to have emerged, although the court has not acknowledged it explicitly, and that was a doctrine of deference to Parliament” to the effect that declarations of invalidity should be suspended to give legislators time to act.

That rationale and justification for suspended declarations in the area of criminal law “in my view, is particularly weak,” Hasan said. He added it is unfair to continue to prosecute and punish people pursuant to constitutionally defective laws.

Smith also sends a strong message that “the government has really got to stop legislating solutions in search of a problem,” he said. “There is no problem with medicinal marijuana and there is no problem with people who are in need of medical help using non-dried marijuana. So to legislate this distinction between dried and non-dried smacks of ideology-driven policy-making, and it is not rooted in the evidence.”

The key to the successful s. 7 Charter challenge was that the defence built a strong evidentiary record to show that marijuana derivatives have medical benefits, Hasan noted.

“Constitutional litigation is not simply built on soaring rhetorical principles. It’s built on evidence,” he said. “Government cannot brazenly assert that a given measure has a beneficial purpose. If it is going to make that assertion, it has to back it up with evidence, and the evidence was lacking in this case.”

Counsel for the intervener British Columbia Civil Liberties Association, Jason Gratl of Vancouver’s Gratl & Company, said the Conservative government, like its Liberal predecessor, “has been hanging on to the residual sensibility that marijuana should be as illegal as possible,” thus prompting an “unreasonable and parsimonious approach” to what constitutes reasonable access to medical marijuana. (The blanket ban against medical use of marijuana was struck down by the Court of Appeal for Ontario in R. v. Parker [2000] O.J. No. 2787.)

In Smith, the Supreme Court ruled that people with medical authorizations can use marijuana derivatives. “So that opens up the supply question,” Gratl said.

“It occurs to me that there are three potential sources of supply: (1) authorized users can bake their own goods or derive their own derivatives; (2) the government can enact regulations to provide reasonable access to marijuana derivatives in addition to dried marihuana; or (3) a niche gray market for marijuana derivatives would be created that is, practically speaking, difficult to prosecute because there is no lawful supply, and there is always a potential that persons who unlawfully supply people who are lawfully entitled to possess marijuana may have a good defence to criminal charges.”

He noted the regulations the court struck down were replaced in 2013 by a mail-order licensing and prescription regime which has yet to be modified to allow for home delivery of marijuana derivatives.

“It’s entirely irrational not to extend the regime to allow doctors to decide what type of marijuana will be medicinal,” Gratl argued.

“It’s perfectly predictable that police forces will be less likely to take an interest in investigating marijuana-derivative suppliers, and prosecutors will be less enthusiastic about prosecuting the cases, and judges may have a reasonable basis to declare invalid the trafficking provisions of the Controlled Drug and Substances Act (CDSA) as they apply to medical marijuana supply.”

The federal government did not provide evidence or arguments that convinced the court, pursuant to s. 1 of the Charter, to uphold the s. 7 Charter violation as reasonable and demonstrably justified in a free and democratic society.

The Supreme Court concluded the same disconnect between the law’s effects and its objective frustrated the s. 1 requirement that a limit on a Charter right must be “rationally connected” to a pressing objective before it can be upheld.

The court affirmed the acquittal of respondent Owen Smith on charges of possession of cannabis, and possession of THC for the purposes of trafficking, contrary to ss. 4(1) and 5(2) of the CDSA.

Smith was a baker with the Cannabis Buyers Club of Canada on Vancouver Island. The club sold marijuana and cannabis-derived products such as cookies, gel capsules, rubbing oil, topical patches, butters and lip balms to people with medical conditions for which the club believed marijuana might provide relief.

In response to a complaint of an offensive odour in 2009, police went to Smith’s Victoria apartment where they seized 211 cannabis cookies, a bag of dried marijuana, and 26 jars of liquids whose labels included “massage oil” and “lip balm.” The liquids contained THC, the main active compound in cannabis.

Smith successfully challenged the constitutionality of the regulations in the B.C. courts.

Based on the evidence, the trial judge found that cannabis has established medical benefits and that different methods of administering it have different benefits.

The Supreme Court held that the dried-marijuana restriction deprived medical marijuana users of their liberty by imposing a threat of prosecution and incarceration for possessing the active compounds in cannabis, and also by foreclosing their “reasonable medical choices” via that threat. Moreover, by forcing a person to choose between a legal, but inadequate treatment and an illegal but more effective treatment, the law also infringed security of the person.

Those limits were arbitrary, and thus contrary to the s. 7 principles of fundamental justice, because “there is no 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 court held.