Sat. Sep 19th, 2020

Limitation to use only “dried marijuana” for medicinal purpose violates S. 7 of the Canadian Charter of Rights and Freedoms

2 min read

Supreme Court of Canada: Dealing as to whether limitations under
the regulations of Controlled Drugs and Substance Act, 1996 (CDSA) to permit
the use of only “dried marijuana” for treating medical conditions, and
prohibiting administration of cannabis derivates is violative of S. 7 of the Canadian Charter of Rights and Freedoms,
a bench of McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon
and Côté JJ gave a landmark judgment and held that the blanket prohibition on
medical access to marijuana violates the guarantee of life, liberty and
security of the person contrary to S. 7 of the Charter.

In
the instant case, the respondent was arrested by the police for possession of dried
marijuana and cannabis derivative products contrary to S. 4 (1) and for the
purpose of trafficking contrary to S. 5 of the CDSA and Marihuana Medical Access Regulations, which allows use of marijuana
only for medicinal purpose. The Court of Appeal upheld the decision of the
trial court, which stated that restriction on use of only “dried marijuana”
instead of “cannabis derivative products” deprives the medical marijuana users
of their liberty to choose how to take medication by imposing a threat of
prosecution and incarceration for possession of active compounds in cannabis,
which is contrary to S. 7 of the Charter, and is also not justified under S. 1
of the Charter, as the same offends the principle of fundamental justice
because they are arbitrary, doing “little or nothing” to further its objective
to protect public health and safety.

The
Court observed that forcing a person to choose a method of treatment which is
more prone to risk of cancer and bronchial infections by smoking (inhaling) dry
marijuana instead of choosing a more effective treatment by way of cannabis
derivatives in the form of cookies, gel, oil etc is infringement of liberty and
security of a person as enshrined under the provisions of Charter. The Court
concluded that restricting medical access to marijuana to its dried form is
inconsistent with the Charter, and as per S. 52 of the Constitution Act, 1982,
a law is “of no force or effect” to the extent it is inconsistent with the
guarantees of the Charter. Accordingly, the Court declared that S. 4 and 5 of
the CDSA 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. The Court also clarified that the said declaration is not
suspended because it would leave patients without lawful medical treatment and
the law and law enforcement in limbo. [R
v. Smith, 2015 SCC 34, decided on 11.06.2015]
Source: Legal news India

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