Supreme Court of Canada: Dealing as to whether limitations under the regulations of Controlled Drugs and Substance Act, 1996 (CDSA) to permit the use of only “dried marijuana” for treating medical conditions, and prohibiting administration of cannabis derivates is violative of Section 7 of the Canadian Charter of Rights and Freedoms, a bench of McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Côté JJ gave a landmark judgment and held that the blanket prohibition on medical access to marijuana violates the guarantee of life, liberty and security of the person contrary to Section 7 of the Charter.
In the instant case, the respondent was arrested by the police for possession of dried marijuana and cannabis derivative products contrary to Section 4 (1); and for the purpose of trafficking contrary to S. 5 of the CDSA and Marihuana Medical Access Regulations, which allows use of marijuana only for medicinal purpose. The Court of Appeal upheld the decision of the trial court, which stated that restriction on use of only “dried marijuana” instead of “cannabis derivative products” deprives the medical marijuana users of their liberty to choose how to take medication by imposing a threat of prosecution and incarceration for possession of active compounds in cannabis, which is contrary to Section 7 of the Charter, and is also not justified under Section 1 of the Charter, as the same offends the principle of fundamental justice because they are arbitrary, doing “little or nothing” to further its objective to protect public health and safety.
The Court observed that forcing a person to choose a method of treatment which is more prone to risk of cancer and bronchial infections by smoking (inhaling) dry marijuana instead of choosing a more effective treatment by way of cannabis derivatives in the form of cookies, gel, oil etc is infringement of liberty and security of a person as enshrined under the provisions of Charter. The Court concluded that restricting medical access to marijuana to its dried form is inconsistent with the Charter, and as per Section 52 of the Constitution Act, 1982, a law is “of no force or effect” to the extent it is inconsistent with the guarantees of the Charter. Accordingly, the Court declared that Section 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. The Court also clarified that the said declaration is not suspended because it would leave patients without lawful medical treatment and the law and law enforcement in limbo. R v. Smith, 2015 SCC 34, decided on 11.06.2015
