In a historic decision, Canada's highest court has ruled that the federal government's prohibition on consuming cannabis extracts for medical use is unconstitutional.
The case involved Owen Smith, a Vancouver Island man who was referred to as "S" in a decision released this morning. His legal team, which included marijuana-law specialists Kirk Tousaw and John Conroy, argued that the ban on non-dried forms of medical cannabis violated his constitutional rights.
The Supreme Court of Canada ruling upholds Smith's acquittal in B.C. Supreme Court and a subsequent ruling in the B.C. Court of Appeal.
He was originally charged with trafficking for baking cannabis-laced cookies for a compassion club.
According to the Supreme Court of Canada, the federal government's ban on possessing non-dried forms of medical cannabis violates section 7 of the Canadian Charter of Rights and Freedoms, which guarantees a "right to liberty of the person".
Therefore, the court ruled, sections 4 and 5 of the Controlled Drugs and Substances Act "are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes".
Smith was not a medical cannabis user. In preparing cookies for a compassion club, he was operating outside of Medical Marihuana Access Regulations that outlaw the sale of edibles. (The MMAR was replaced in June 2013 by the Marijuana for Medical Purposes Regulations, aka the MMPR.)
"First, the prohibition deprives S as well as medical marihuana users of their liberty by imposing a threat of imprisonment on conviction under s. 4(1) and s. 4(2) of the CDSA," the court ruled. "Second, it limits the liberty of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution. Similarly, by forcing a person to choose between a legal but inadequate treatment and in illegal but more effective one, the law also infringes security of the person."
In the eyes of the Supreme Court of Canada, these limits "are contrary to the principles of fundamental justice because they are arbitrary; the effects of the prohibition contradict the objective of protecting health and safety."
Moreover, the court concluded that evidence "amply supports the trial judge's conclusions that inhaling marihuana can present health risks and that it is less effective for some conditions than administration of cannabis derivatives".
"In other words," the court ruled, "there is no connection between the prohibition on non-dried forms of medical marihuana and the health and safety of the patients who qualify for legal access to medical marihuana."
It's the first time that the Supreme Court of Canada has been asked to rule on a case involving medical cannabis.
Interveners in the case included the B.C. Civil Liberties Association, the Canadian Civil Liberties Association, the Canadian AIDS Society, and several other groups that work on behalf of people with HIV and AIDS.