Medical Marihuana: Smoking Not Required

On the marihuana file, it seems the federal government can’t win for losing. The Supreme Court of Canada on June 11 released its judgment in R. v. Smith, the Crown’s appeal of Mr. Smith’s acquittal on charges under the Controlled Drugs and Substances Act (CDSA). Mr. Smith’s premises in Victoria were being used to produce edible and topical marihuana derivatives for medical uses, and he was charged in 2009 with possession and trafficking offences. At the time, the now repealed Marihuana Medical Access Regulations were in effect; like the current Marihuana for Medical Purposes Regulation (MMPR), the MMAR permitted the possession for medical purposes of only dried marihuana, which must be inhaled to have any medicinal effect. The B.C. Supreme Court found the CDSA to be unconstitutional, unjustifiably interfering with the rights of persons who require marihuana for the treatment of medical conditions and cannot or do not wish to inhale marihuana, under the Canadian Charter of Rights and Freedoms. Both the B.C. Court of Appeal and, now, the Supreme Court of Canada, have agreed with this outcome. The decision is based on the trial judge’s finding of fact that edible and topical marihuana are more effective for some medical conditions, and less dangerous than, inhaled marihuana, and that the CDSA prohibition infringes on the Charter right to liberty by threatening imprisonment for possession of those medically required forms of marihuana. The Supreme Court of Canada has held that the prohibition is “totally disconnected” from the objectives that the Crown asserted it served, being health and safety and the curbing of diversion of marihuana into the illegal market, and therefore cannot be justified.

The Government of Canada will now have to consider amending the MMPR to allow commercial producers of dried marihuana, which it has been licensing for over a year now, to produce and distribute marihuana derivatives as well. (Many commercial marihuana producers were likely anticipating the result in the Smith case, and will be more than willing to gear up to produce marihuana derivatives as well should they be licensed to do so.) As it considers such measures, Health Canada will also be watching for the Federal Court’s decision in Allard v. The Queen, in which medicinal marihuana users are alleging that the MMPR is itself unconstitutional to the extent that it prohibits them from growing their own marihuana. The Federal Court hearing wrapped up in Vancouver last month, and a decision is pending.

Neither the Supreme Court’s decision in Smith nor the Federal Court’s decision in Allard has any direct bearing on the “marihuana dispensary” business licensing issues that many B.C. local governments are currently facing. On that topic, see Francesca Marzari’s piece in our upcoming client newsletter.

Link to the Smith decision:

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