On June 11, 2015, the Supreme Court of Canada released its unanimous opinion in R. v. Smith, 2015 SCC 34 that the law prohibiting medical access to marihuana other than dried marihuana is unconstitutional. In a per curiam ruling, the court held that the legislation violated the right to life, liberty and security of the person under s. 7 of the Charter of Rights.

The legal regime in issue was governed by the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA) and the Marihuana Medical Access Regulations, SOR/2001-227 (MMARs) which were the predecessor to to the current MMPRs, SOR/2013-119. Under ss. 4 and 5 of the CDSA, the possession, production and distribution of cannabis including its active compounds and derivatives are prohibited. However, s. 55 empowers the federal government to create exemptions by regulation for medical, scientific or industrial purposes. The MMARs created an exemption for people who could demonstrate medical need. When patients met the regulatory requirements, they were legally authorized to possess dried marihuana defined as “harvested marihuana that has been subjected to any drying process”.

The case arose when Owen Smith, a former baker for the Victoria Cannabis Buyers Club, produced edible and topical marihuana derivatives for sale by extracting the active compounds from the cannabis plant. He was not a user of marihuana for medical purposes. The police charged him with possession and possession for the purpose of trafficking contrary to ss. 4(1) and 5(2) of the CDSA. He was acquitted when the trial judge concluded that the prohibition on non-dried forms of medical marihuana unjustifiably infringes s. 7 of the Charter reported as R. v. Smith, 2012 BCSC 544. A majority of the British Columbia Court of Appeal dismissed the Crown’s appeal in a decision reported as R. v. Smith, 2014 BCCA 322. Justice Edward C. Chiasson, dissenting, held that Smith did not have standing to raise the constitutional issue and that, in any event, the restriction did not violate s. 7 because medical users could legally convert dried marihuana into other forms.

The first question, then, was whether Smith had standing. Standing is the general legal term used for the ability of a party to demonstrate that he or she has a sufficient connection to the law or action in dispute to support their participation in the case. The state waffled on the point throughout the litigation. The prosecutor took no issue with Smith’s standing at trial. Crown counsel on appeal conceded that the principle “that no one can be convicted of an offence under an unconstitutional law” applied to Smith. (See: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295). In the Supreme Court, the Crown adopted the dissenting reasons of Justice Chiasson arguing that Smith did not have standing because he did not use medical marihuana and operated outside the regulatory scheme. The court gave short shrift to the standing argument concluding as follows, at para. 12:

“Accused 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: R. v. Morgentaler, [1988] 1 S.C.R. 30; Big M Drug Mart. Nor need accused persons show that all possible remedies for the constitutional deficiency will as a matter of course end the charges against them. In cases where a claimant challenges a law by arguing that the law’s impact on other persons is inconsistent with the Charter, it is always possible that a remedy issued under s. 52 of the Constitution Act, 1982 will not touch on the claimant’s own situation: see R. v. Latchmana, 2008 ONCJ 187, 170 C.R.R. (2d) 128, at para. 16; R. v. Clay (2000), 49 O.R. (3d) 577 (C.A.).

The court then turned to a consideration of Smith’s liberty and security interests under s. 7, at paras. 17-18. First, the prohibition of cannabis derivatives infringed his liberty interest by exposing him to the threat of imprisonment. The court affirmed its previous ruling in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that, “…any offence which includes incarceration in the range of possible sanctions engages liberty.” The prohibition also engaged the liberty interest of medical marihuana users as they could face criminal sanctions by producing or possessing non-dried marihuana. Second, the prohibition of possession limits liberty by foreclosing reasonable medical choices through the threat of criminal prosecution. The state prevented people from choosing the method of administering the drug. On the evidence before the trial judge, this denial subjected people to the risk of cancer and bronchial infections associated with smoking dry marihuana. The court went on to conclude, at para. 18, that the law also infringed security of the person, “…by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice…”.

Finally, the court completed the s. 7 analysis by holding, at para. 27, that the evidence did not establish a connection between the restriction and attempts to curb the diversion of marihuana into the illegal market. The court was thus left with, “…a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object.” This rendered the law arbitrary and hence not in accord with the principles of fundamental justice in violation of s. 7.

The burden therefore shifted to the state to establish that the violation of s. 7 was reasonable and demonstrably justified under s. 1 of the Charter. That analysis focused on the furtherance of the public interest and differed from the s. 7 analysis which was focused on the infringement of individual rights. In this case, however, the objective of the prohibition was the same in both analyses: the protection of health and safety. The court therefore concluded, at para. 29, that the same disconnect between the prohibition and its object that rendered it arbitrary under s. 7 frustrated the requirement under s. 1 that the limitation of the rights be rationally connected to a pressing objective. The infringement of s. 7 was thus not justified under s. 1 of the Charter. A declaration was therefore issued under s. 52 of the Constitution Act, 1982 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.”

The ruling was welcomed with cheers from medical marihuana campaigners and outrage from the Conservative government. In a report by Geordon Omand and Terry Pedwell titled Supreme Court rejects government’s limited definition of medical marijuana in the Ottawa Citizen edition dated June 11, 2015, former baker Smith, the man at the centre of the controversy, was quoted as saying: “Across the country there will be a lot more smiles and a lot less pain.” But federal Health Minister Rona Ambrose said she was “outraged” that “judges have decided something is a medicine”. Ms. Ambrose appears to have forgotten that the Canadian judiciary is the guardian of the Constitution. Not Parliament. And certainly not the Conservative Party. The Prime Minister should remind the members of his cabinet that they all would do well to remember that.

It is surprising that the government pursued this case to the Supreme Court losing every step of the way. There was ample evidence before the trial judge to support the finding that the law was unconstitutional. Maybe the case is a good example of how an ill-founded dissent at the appellate level can fuel pointless litigation at the tax payers expense. Maybe it’s another good example of how the government is a sore loser when it comes to its law and order agenda. Maybe the crux of the debate was put best in an Editorial titled Court’s ruling ends Ottawa’s arbitrary rules on medical pot in The Globe and Mail edition of June 14, 2014: “It makes no sense to have a rule that legalizes a drug – while threatening someone with jail unless they use it in its most archaic form.” The Supreme Court hit the bull’s eye on this one.