Outraged. Rona Ambrose is “outraged” at the Supreme Court of Canada’s decision in R. v. Smith, which finds that the Medical Marihuana Access Access Regulations (MMAR) that prohibit the consumption of medical marijuana in any form but dried marijuana to be unconstitutional. “Outraged” is Ambrose’s word, not mine. With this one word, Ambrose set Canadian media outlets twittering and it seems single handedly to have lost any credibility with rationally minded people in its war on drugs (if it ever had any).
For me, Ambrose’s words conjure up images of cartoonish villains when their evil plot has been foiled by those “durned kids again” or a quick-witted superhero. I can just picture her lying prostrated on the ground banging her arms and legs against the floor screaming or alternatively stomping her feet and pulling out her hair as she screams about the fact that Canadians may now be able to consume their medical marijuana in a healthier, more effective way than smoking it or vapourizing it.
In short, Ambrose’s reaction is ridiculous and clearly political. It’s designed as another attack on our judiciary and highest court in Canada. Using words like “outraged” subtly implies and infers that the SCC has done something they shouldn’t have and that with time Ambrose and her cronies will use their political power to fix it.
So we all know the result of the case and we know what Ambrose thinks of the result, but how did the SCC reach this result? What exactly is Ambrose outraged about? Let’s have a closer look.
Owen Smith was preparing marijuana cookies, marijuana massage oil, and lip balm in his apartment at home for the Cannabis Buyers Club of Canada, which distributes marijuana to medical marijuana users. The police got a search warrant and searched his home. Smith was charged with possession of marijuana and THC and possession of marijuana and THC for the purpose of trafficking. Smith challenged the laws he was charged under, saying they were unconstitutional because the exemption in the MMARs for medical marijuana possession was not broad enough.
At trial, the judge head from many expert and lay witnesses to determine whether there was any justifiable reason for MMARs to restrict possession to dried marijuana for medical purposes.
His findings about medical marijuana are adopted by the SCC. They are:
(1) 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.
(2) Different methods of administering marihuana 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. Further, 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.
(3) Inhaling marihuana, 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 marihuana presents acknowledged risks, as it exposes patients to carcinogenic chemicals and is associated with bronchial disorders.
The Crown argued that Smith did not have standing to challenge the laws he was charged under because he was not a medical marijuana user. The SCC made short shrift of this argument saying that anyone can challenge the constitutionality of a law that they are charged under, even if the reasons for the law being unconstitutional does not apply to the person specifically.
Next, the SCC had to decide whether the prohibition of anything but dried marijuana for medical purposes, was constitutional.
Section 7 of the Charter states:
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.
Does the restriction of only using dried marijuana for medical purposes limit the life, liberty, and security of the person? The SCC says it does.
First, possessing any cannabis derivatives (i.e. marijuana massage oil and lip balm) means you can be charged with possession and go to jail. If you’re a medical marijuana patient using cannabis derivatives, the medical marijuana exception to the criminal laws against possession of marijuana will not apply, so you can also go to jail for using marijuana massage oil and lip balm. This means that your rights to “liberty” are engaged.
Second, your rights to liberty are also engaged because if you are a person who uses medical marijuana, you are not free to decide how to consume THC. The SCC supports wholesale the findings of the trial judge about the efficacy and safety of consuming marijuana in other ways that involve smoking and vapourizing. It also points to Health Canada materials filed by the government, which support these findings.
The SCC goes on to say that denying a medical marijuana patient a choice in how to consume his or her medication is not a trivial matter and infringes your right to security. Essentially the prohibition forces you to choose between a legal, but less effective way of taking your medication or an illegal, but more effective way of taking your medication.
Once it found that the liberty and security of the person rights are engaged, the SCC turned to whether or not the limits on these rights was “in accordance with the principles of fundamental justice.”
The trial judge looked at the law from the point of view of the control of illegal drugs. The Court of Appeal looked at the law from the point of view of the regulation of the drug for the protection of health and safety. Both courts found that the prohibition of medical marijuana to dried marijuana did nothing to further these objectives. In short, there was absolutely no reason to limit medical marijuana use to dried marijuana. The SCC agreed with them.
Because of the findings of the trial judge, that consuming cannabis derivatives is safer than dried marijuana, the SCC found that the prohibition did not protect the health and safety of medical marijuana users.
The Crown tried to argue that there were health risks with extracting the THC from marijuana. The SCC made it clear that there was no evidence whatsoever that supported this argument and the Crown did not lead any evidence to suggest that it was dangerous.
Further, there was no evidence to suggest that balms, oils, and capsules would divert more marijuana into the illegal market. So from a law enforcement perspective, there is no reason to prohibit consumption of medical marijuana in forms other than dried marijuana.
Next the court had to consider whether the prohibition was in the public interest (as opposed to simply infringing individual rights). The SCC again concludes that the prohibition is not in the public interest because there was absolutely no reason provided for the prohibition to exist in the first place.
Because there is no reason whatsoever for limiting the ingestion of medical marijuana to dried marijuana and doing so puts medical marijuana patients’ health at risk, the SCC struck down the prohibition.
So when considering, Rona Ambrose’s comments that she is “outraged” by the SCCs decision and where you’re going to fall on the Harper government’s war on the SCC and their war on drugs, consider why the SCC struck down the restriction on only consuming medical marijuana in its dried form.