The Supreme Court of Canada has opened Pandora’s cookie jar by blessing pot-infused ginger snaps and cannabis derivatives, causing a fuming federal health minister to insist that patients must smoke their bud.
In a unanimous decision, stinging in its brevity and common sense, the country’s highest court said Thursday medical marijuana patients should not be restricted to just the dried plant.
The seven justices said the national medical pot program was flawed, impinged patients’ rights, and was not saved by the section of the constitution that allows reasonable infringements for worthy societal goals.
Lawyers involved in the case said it also had broader implications because the right to use comes with an implicit right of access to a supply.
Although the court didn’t address the issue, the lawyers said the situation is analogous to the rulings that led to the creation of the medical marijuana scheme at the turn of the century.
Although this case was supported by the Victoria Cannabis Buyers Club, such clinics and dispensaries that have long provided derivative products as well as dried pot have always been illegal.
The landmark Supreme Court ruling, however, appears to give them arguable legal ground on which to sell derivatives, since there are no authorized suppliers.
That could have huge repercussions in Vancouver where civic officials are faced with nearly 100 unregulated outlets, most offering a range of pot products as well as dried weed.
Health Minister Rona Ambrose was apoplectic the high court ruled that patients now can have cannabis tea, brownies, cookies, chocolate bars, hash, balms, creams, lotions, tinctures, infused oils, salves …
“Marijuana has never gone through the regulatory approval process at Health Canada, which requires rigorous safety reviews and clinical trials with scientific evidence,” she told reporters in Ottawa.
“So frankly, I’m outraged by the Supreme Court.”
Ambrose maintained that cannabis didn’t become therapeutic “because judges deemed it so.”
The Conservative insistence that patients smoke or vape their medication once again finds them clashing with the judiciary, which considers that nonsensical.
“Inhaling marihuana (the archaic legal spelling) can present health risks and is less effective for some conditions than administration of cannabis derivative,” the country’s highest bench said in the ruling that was unsigned, implying institutional weight.
There is no connection between the prohibition on non-dried forms of marijuana and the health of the patients who qualify for legal access, the court said.
“It is therefore difficult to understand why allowing patients to transform dried marihuana into baking oil would put them at greater risk than permitting them to smoke or vaporize dried marihuana,” the justices added.
“Moreover, the Crown provided no evidence to suggest that it would. … Finally, the evidence established no connection between the impugned restriction and attempts to curb the diversion of marihuana into the illegal market. We are left with a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object.”
The appropriate remedy the court said is a declaration that the law is of no force and effect to the extent that it prohibits a person with a medical authorization from possessing cannabis derivatives for medical purposes.
“It’s fantastic,” enthused Vancouver Island lawyer Kirk Tousaw, who with Abbotsford counsel John Conroy handled the appeal.
“It goes into effect immediately — what else could you ask for?”
Jason Gratl, of the B.C. Civil Liberties Association which was one of five intervenors in the case, also celebrated:
“It’s a great victory. It carries the potential to be a stepping stone to significant changes on other legal issues, such as the threshold for triggering the right to liberty. And their use of the word ‘non-trivial’ is important, too.”
One of the key points of the ruling is that the court broadly conceived of medical autonomy 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 using a medication is a “non-trivial” choice, and restricting that choice infringes the right to liberty.
In rejecting the government’s appeal, the court explained that it was not suspending its declaration, even though the lower court decision had given Ottawa a year to fix the law.
Such a suspension, the justices said, would leave patients without lawful medical treatment and the law and law enforcement in limbo.
But there is no legal supply of cannabis derivatives — and the decision will incite a sea-change in the direction of the medical cannabis industry away from smoking by allowing a broad range of new products.
Tousaw said the supply issue was a new conundrum: “It’s unresolved — which is a big problem. They could licence (producers). But won’t.”
Gratl said the supply question loomed over the judgment — noting that with dried marijuana, patients first won the right to use it with the Parker decision in 2000, then the right to a supply in Hitzig v. Canada 2003.
The case has its roots in a December 2009 West Coast bust.
The former head baker for the cannabis club, Owen Smith, was arrested in his Victoria apartment with 200-plus cookies, a supply of cooking oils and some dried dope. He was charged under the Controlled Drugs and Substances Act with trafficking tetrahydrocannabinol (THC), one of the main psychoactive chemicals in pot and presumably the tasty snaps and oils, and possession.
In 2012, B.C. Supreme Court Judge Robert Johnston acquitted Smith after ruling that the medical marijuana regulations were constitutionally flawed because they restricted patients’ therapeutic use of cannabis.
The high bench affirmed the acquittal.
Tousaw said his client was thrilled.
Both the old rules, known as the Marihuana Medical Access Regulations, and the new ones titled, the Marijuana for Medical Purposes Regulations, which came into effect April 1, restricted patients to only dried cannabis.
Johnston, whose reasoning was endorsed by the Supreme justices, said that constraint was arbitrary.
He found criminalizing how a patient used his or her medicine an unwarranted infringement of security-of-the-person rights guaranteed under Section 7 of the Charter of Rights and Freedoms.
Marijuana’s active ingredients have a longer-lasting effect if they are ingested rather than inhaled, bringing greater benefit to those who use it to treat conditions such as chronic pain or glaucoma.
Smoking achieves a quicker, but less-lasting benefit.
But for many patients, especially children and the elderly, the court heard, using extracts is a much more reasonable method of ingestion than smoking or vaping.
Last August, in a 2-1 judgment, the B.C. Court of Appeal agreed with Johnston sparking Ottawa’s appeal.
(The decision is available on the Supreme Court’s website. Extracts of its March hearing are available here.)