Thursday, June 11, 2015

Medical marijuana includes cookies, brownies

R. v. Smith, 2015 SCC 34:              

Accused persons have standing to challenge the constitutionality of the law under which they are charged, even if the alleged unconstitutional effects are not directed at them, or even if not all possible remedies for the constitutional deficiency will end the charges against them. 

The prohibition on possession of non‑dried forms of medical marihuana limits the s. 7 Charter  right to liberty of the person in two ways. First, the prohibition deprives S as well as medical marihuana users of their liberty by imposing a threat of imprisonment on conviction under s. 4(1)  or 5(2)  of the CDSA . Second, it limits the liberty of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution.Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringes security of the person.

These limits are contrary to the principles of fundamental justice because they are arbitrary; the effects of the prohibition contradict the objective of protecting health and safety. The evidence amply supports the trial judge's conclusions that inhaling marihuana can present health risks and that it is less effective for some conditions than administration of cannabis derivatives. In other words, 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. 

In this case, the objective of the prohibition is the same under both the ss. 7  and 1  Charter 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. The infringement of s. 7  is therefore not justified under s. 1 

However, ss. 4 and 5 of the CDSA  should not be struck down in their entirety. The appropriate remedy is a declaration that these provisions 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; however, that declaration is not suspended because it would leave patients without lawful medical treatment and the law and law enforcement in limbo.

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