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R. v. Smith

This case was concerns the scope of access to medical marijuana products under the Marihuana Medical Access Regulations (“MMAR”). Under the MMAR, patients are only legally permitted to access “dried marihuana” for treatment purposes. This means that ingestion is limited to smoking or vapourizing the marijuana – oral ingestion through capsules or food is prohibited. Among the issues being considered by the Court is whether this restriction is constitutional.

Owen Smith worked for the Cannabis Buyers Club of Canada, which produces, among other things, edible marijuana products. He was arrested and charged for producing baked goods containing marijuana, in violation of the Controlled Drugs and Substances Act. At trial, Mr. Smith challenged the constitutionality of the MMAR’s restriction to dried marijuana. The BC Supreme Court found that the restriction violated s. 7 Charter rights of medical marijuana patients, and Mr. Smith was acquitted of the charges against him. The BC Court of Appeal upheld the finding of unconstitutionality. The case was appealed to the Supreme Court of Canada.

The BCCLA intervened in this case and was granted leave to present argument at the hearing, held on March 20, 2015. The BCCLA argued that the criminalization of modes of ingestion of medical marijuana infringes the liberty interest protected by s. 7 of the Charter. Medical autonomy should be conceived broadly to include not only amelioration of injury or illness, but also non-trivial enhancement, maintenance and preservation of health or well-being. The choice of individuals to use what they experience as the most efficacious mode of ingesting a medication is a non-trivial choice, and restricting that choice infringes the right to liberty.

The Supreme Court of Canada agreed. In a unanimous decision, the Court held that the prohibition on possession of non-dried forms of marijuana infringed on s. 7 liberty interests by exposing medical marijuana users to threat of imprisonment and by “foreclosing reasonable medical choices through the threat of criminal prosecution”. The Court also found that forcing an individual to choose between a legal but less effective treatment and an illegal but more effective treatment also infringes on security of the person. It held that there was no connection between the prohibition on non-dried forms of medical marijuana and the government’s objective of protecting health and safety of medical marijuana users – thus, the infringement on s. 7 liberty and security of the person interests are (1) not in accordance with principles of fundamental justice and (2) not justified under s. 1 of the Charter. The Court declared the provisions prohibiting a medical marijuana user from possessing and using non-dried forms of medical marijuana to be of no force and effect.

The BCCLA is represented by Jason Gratl of Gratl & Company.

The BCCLA’s argument in this case is available here.

The Supreme Court of Canada judgment is available here.