The Supreme Court in Canada has ruled that Medical marijuana patients can now legally use all forms of the drug, not only smoke it. Previously, regulations under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), only permitted the use of marijuana for treating medical conditions to “dried marijuana”, so that those who were legally authorized to possess marijuana for medical purposes were still prohibited from possessing cannabis products extracted from the active medicinal compounds in the cannabis plant.
The decision comes after the case was taken to court in 2009 by Owen Smith, who had been producing edible and topical marijuana derivatives for sale by extracting the active compounds from the cannabis plant. The Club sold marijuana and cannabis derivative products to members: people the Club was satisfied had a bona fide medical condition for which marijuana might provide relief, based on a doctor’s diagnosis or laboratory test. It sold not only dried marijuana for smoking, but edible and topical cannabis products; cookies, gel capsules, rubbing oil, topical patches, butters and lip balms. However, he operated outside the Marijuana Medical Access Regulations (“MMARs”), which limited lawful possession of medical marijuana to dried marijuana. The police charged him with possession and possession for purpose of trafficking of cannabis.
The defendant argued that inhaling marijuana, typically through smoking, provides quick access to the medical benefits of cannabis, but also has harmful side effects. Although less harmful than tobacco smoke, smoking marijuana presents acknowledged risks, as it exposes patients to carcinogenic chemicals and is associated with bronchial disorders. Despite this, the active compounds of the cannabis plant, such as THC and cannabidiol, have established medical benefits and their therapeutic effect is generally accepted, although the precise basis for the benefits has not yet been established. Moreover, Mr Smith insisted on the fact that different methods of administering marijuana offer different medical benefits. For example, oral ingestion of the active compounds, whether by way of products baked with THC-infused oil or butter, or gel capsules filled with the active compounds, may aid gastro-intestinal conditions by direct delivery to the site of the pathology. Furthermore, oral administration results in a slower build-up and longer retention of active compounds in the system than inhaling, allowing the medical benefits to continue over a longer period of time, including while the patient is asleep. It is therefore more appropriate for chronic conditions.
All in all, the accused managed to convince the judge by appealing to the Court to determine whether restricting medical access of marijuana to dried marijuana violated s. 7 of the Charter:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The accused argued that the prohibition on possession of non‑dried forms of medical marijuana limited the s. 7 Charter right to liberty of the person. He argued that the prohibition deprived medical marihuana users of their liberty by imposing a threat of imprisonment on conviction under s. 4(1) or 5(2) of the CDSA. Secondly, he said that it limited the liberty of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution. By forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringed the security of the person.
Therefore, the trial judge found that the restriction to dried marijuana deprived Mr. Smith and medical marijuana users of their liberty by imposing a threat of prosecution and incarceration for possession of the active compounds in cannabis. He also found that it deprived medical users of the liberty to choose how to take medication they are authorized to possess, a decision which he characterized as “of fundamental personal importance”, contrary to s. 7 of the Charter.