Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Sunday, June 14, 2015

Supreme Court of Canada issues big medical marijuana ruling (and highlights import of judiciary in marijuana reform)

As reported in this local Canadian article, headlined "Medical marijuana includes cookies, brownies, Supreme Court rules," the top court in Canada issues a significant medical marijuana ruling last week. Here are the details:

A former cannabis club head baker at the centre of a Supreme Court of Canada ruling is both thrilled and relieved after the high court struck down limits on what constitutes legally acceptable medical marijuana products. The court ruled unanimously on Thursday that medical marijuana can be legally consumed in a range of ways, from cannabis-infused cookies and brownies to cooking oils and teas. “I think across the country there will be a lot more smiles and a lot less pain,” said Owen Smith with the Victoria Cannabis Buyers Club, whose 2009 arrest was the focus of the decision.

Smith was charged after police found hundreds of pot cookies and cannabis-infused olive and grapeseed oils in his Victoria apartment. He was acquitted at trial and won an appeal.

The outpouring of gratitude since the ruling was handed down has been overwhelming, Smith said. He received a phone call from a mother who used cannabis-infused oil to treat her daughter’s epilepsy. “She was just overjoyed and in tears about the decision,” he said. “It’s been emotional, that’s for sure.”

Not only was it a unanimous 7-0 ruling, but the court made a point of attributing the written decision to the entire court — something the justices do when they want to underline a finding.

It was yet another rebuke of the Harper government’s tough-on-crime agenda. Until now, federal regulations stipulated that authorized users of physician-prescribed cannabis could only consume dried marijuana.

But limiting medical consumption to dried pot infringes on liberty protections under the Charter of Rights and Freedoms, the court said. “The prohibition of non-dried forms of medical marijuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice,” said the written judgment.

Cheryl Rose, whose daughter Hayley takes cannabis for a severe form of epilepsy, said the 22-year-old’s seizures have dropped dramatically. Under the previous law, Hayley had to take 15 capsules of dried cannabis daily. Now, she will only have to take one concentrated capsule made with oil. “Without having extracts available for her, I don’t think we’d be able to keep it up. It’s way too much for a person to consume,” she said. “She’s finally going to fully have her life back.”

Alex Repetski, of Thornhill, Ont., could have been charged with possession and trafficking for converting dried bud into oil for his 3-year-old daughter, Gwenevere, whose debilitating epilepsy has left her developmentally delayed. Since starting on the low-THC marijuana, Gwenevere has seen an incredible recovery, Repetski said. He no longer fears prosecution.

Limiting medical marijuana use to dried pot “limits life, liberty and security of the person” in two ways, the court said. First, the prohibition on possession of cannabis in forms other than dried pot places a person at risk of imprisonment when they wouldn’t face the same threat if they possessed dried marijuana buds. It also exposes people with a legitimate need for marijuana to other potential medical ailments, it stated. “It subjects the person to the risk of cancer and bronchial infections associated with smoking dry marijuana and precludes the possibility of choosing a more effective treatment.”...

Health Minister Rona Ambrose said she was “outraged” by the marijuana decision. “The big issue here is the message about normalization,” she said. “The message that judges, not medical experts, judges have decided something is a medicine.” Ambrose noted that marijuana has never faced a regulatory approval process through Heath Canada.

The full 24-page ruling in R. v. Smith, 2015 SCC 34 (Canada June 11, 2015) is available at this link.

As the last line of my post headline emphasizes, I think this ruling highlights the importance and impact of how a judiciary responds to a jurisdiction's marijuana reform efforts. For any jurisdiction that reforms blanket marijuana prohibition in any ways, the dynamics of just how courts interpret and apply reform statutes and regulations will necessarily have an impact on the actions of other government officials and individuals seeking to comply with reformed laws and practices.

https://lawprofessors.typepad.com/marijuana_law/2015/06/supreme-court-of-canada-issues-big-medical-marijuana-ruling-and-highlights-import-of-judiciary-in-ma.html

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