Ban on liquid forms of medical marihuana infringes security of the person
Police Powers Newsletter
By: Justice Michelle Fuerst, Michal Fairburn and Scott Fenton
1. Medical Marihuana Legal Even When in Liquid Form
Facts: Owen Smith worked at the Cannabis Buyers Club of Canada. The Club sold marihuana and cannabis derivatives, distilled into various products, including cookies, gel capsules, rubbing oil, topical patches, butters and lip balm. The Club sold to members who were prior approved upon satisfaction that they had a bona fides medical condition for which marihuana may provide relief. This determination was made on the basis of a doctor’s diagnosis or a laboratory test.
The Club sold both dried marihuana and cannabis products made from dried marihuana. The police searched the Club and found dried marihuana and tetrahydrocannabinol (”THC) in various products. Mr. Smith was charged with trafficking contrary to s. 5(2) and possession of cannabis contrary to s. 4(1) of the Controlled Drugs and Substances Act (”CDSA)”. The Marihuana for Medical Purposes Regulations (”MMPRs”) exempt approved medical marihuana patients from criminality under the CDSA where they are using “dried marihuana”. There is no exemption under the MMPR for the possession of THC from the marihuana plant. Only dried marihuana meets the regulatory exemption. Mr. Smith challenged the constitutionality of the MMPR regulations, suggesting that they were overly narrow. He argued that confining the exemption to dried marihuana compromises the liberty and security of the person under s. 7 of the Charter and the limitation is not in accordance with the principles of fundamental justice. He succeeded in this argument both before his trial judge and a majority of the British Columbia Court of Appeal.
The Crown appealed on the dissenting judgment in the Court of Appeal.
Held: The Supreme Court of Canada released a unanimous judgment authored by the Court. They first dealt with a standing issue that had arisen in the court below. The Court concluded that Mr. Smith had standing to raise the s. 7 argument.
The fact that Mr. Smith was not a medical marihuana user himself, and did not possess a licence to produce under the regulatory regime, did not preclude him from challenging the constitutionality of the scheme that he was charged under: “[a]ccused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them [para. 12]”. While Mr. Smith was charged under the CDSA, the constitutionality of the provision is entirely dependent upon the constitutionality of the MMAR exemption and, as such, he was entitled to challenge the provision.
Both liberty interests and security of the person are engaged by the limitations imposed under the MMARs. Any offence that includes incarceration within the range of acceptable sanctions will engage a liberty interest. Here, liberty interests are engaged because people are liable to imprisonment if convicted for possessing or distributing outside of the strict limitations within the MMAR (e.g., possessing non-dried marihuana).
Liberty interests are also engaged by the fact that the MMAR forecloses reasonable medical choices by threat of criminal sanction. People who have an already established medical need for marihuana are precluded from choosing how they wish to administer the substance. There was evidence in this case, accepted by the trial judge, that smoking dried marihuana carries with it adverse health implications that do not arise with other forms of administration of the substance. By using oils and other products, distilled by the marihuana plant, the person can avoid the higher risk of cancer and bronchial infections that may arise more frequently by smoking dried marihuana. The evidence was that cannabis derivatives are a more effective and less dangerous manner of using medical marihuana than smoking or otherwise inhaling dried marihuana. The Court concluded that in these circumstances, the criminalization of access to alternative forms of treatment infringes upon the liberty of the individual and his or her security of the person.
This infringement was found not to be in accord with the principles of fundamental justice. The Court found no connection between the prohibition on non-dried forms of medical marihuana and the health and safety of those who are authorized to use it. Indeed, the prohibition on non-dried marihuana serves to undermine the health and safety of the authorized users. As such, the legislation fails to further the objectives of the legislation. Instead, it forces people with an already recognized legitimate health condition, sufficient to permit the use of medical marihuana, to risk harm by forcing them into a situation of chronic smoking.
There was also no connection between the impugned restrictions and attempts to curb diversion into the illegal markets.
The Court concluded that the provision compromised individual liberty and security of the person and was not in accord with the principles of fundamental justice. Nor is the provision saved under s. 1 of the Charter. As for remedy, the Court concluded that 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. This declaration is effective immediately.
As for Mr. Smith, his acquittal was affirmed.
Commentary: This is an interesting case on a number of levels. It is a succinct approach to a s. 7 analysis, commencing with an important discussion about standing. To the extent that it was not clear before, the Court has quite clearly said that s. 7 of the Charter is available to anyone charged with an offence. It would appear that accused people will always have standing to challenge the law under which they are been charged: R. v. Morgentaler,  1 S.C.R. 30.
In addition, the Court has again clarified the fact that potential imprisonment is sufficient to trigger the right to liberty. This would appear to be an easy threshold to meet when the crime is punishable by imprisonment: Re B.C. Motor Vehicle Act,  2 S.C.R. 486 at p. 515. What will create more of a challenge is whether the deprivation, or potential deprivation, of liberty will accord with the principles of fundamental justice. This is determined by assessing the objectives of the legislation, which in this case were determined to be entirely arbitrary in nature.
R. v. Smith (2015), 2015 SCC 34, 2015 CSC 34, 2015 CarswellBC 1587, 2015 CarswellBC 1588 (S.C.C.)