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|Major Studies of Drugs and Drug Policy|
|Canadian Senate Special Committee on Illegal Drugs|
|Volume 2 - Policies and Practices In Canada|
Chapter 13 - Regulating Therapeutic Use of Cannabis
Charter challenges – therapeutic use of marijuana <![if !supportFootnotes]><![endif]>
Charter challenges to prohibitions with respect to marijuana by those using the substance for therapeutic
purposes have met with some success. In Wakeford
v. Canada (1998),<![if !supportFootnotes]><![endif]> a person suffering from AIDS and using
marijuana to fight nausea and loss of appetite, which were side-effects of the
drugs he was taking to fight AIDS, sought a constitutional exemption from the
prohibitions with respect to marijuana in the CDSA. The Ontario Court, General
Division, found that by denying the individual the autonomy to choose how to
treat his illness, the law infringed his rights to liberty and security of the
person under the Charter. The Court indicated that the prohibition on marijuana
was not arbitrary inasmuch as there is some risk of harm associated with its
use.<![if !supportFootnotes]><![endif]> Thus, the Court found that in its
general application, the law was consistent with the principles of fundamental
justice as set out in section 7 of the Charter. However, the law’s impact
on medical users raised additional considerations. As applied to these users,
the blanket prohibition is over-broad and does not support the state’s
rationale for prohibition.
The Court held that it would be contrary to the principles of fundamental justice to prohibit the use of marijuana where it can be shown to be a significant medical treatment for a debilitating and deadly disease and where there was no procedural process for obtaining an exemption from prosecution.<![if !supportFootnotes]><![endif]> However, the Court noted that such a process was provided for in section 56 of the CDSA. Therefore, the Court found that the law was in accordance with fundamental justice – even in respect of medical users – and denied Mr. Wakeford a constitutional exemption. It emphasized that, without a ministerial exemption process for medical users, the case would have been decided differently.<![if !supportFootnotes]><![endif]> Later, Mr. Wakeford was granted an interim constitutional exemption with respect to the offences of possession and production/cultivation of marijuana on the basis of “fresh evidence” indicating that no real process had been established to deal with applications for exemptions under section 56 of the CDSA. Because the statutory exemption turned out to be “illusory,” the Court reopened the case and granted the exemption. It would remain in effect until the Minister of Health had made a decision on Mr. Wakeford’s application for an exemption under section 56 of the CDSA.<![if !supportFootnotes]><![endif]>
In R. v. Parker (2000),<![if !supportFootnotes]><![endif]> the Ontario Court of Appeal reached a
similar conclusion with respect to the impact of the blanket prohibition on
marijuana use on the “liberty and security of the person” interests of medical
users. In Parker, the accused–who had
been charged with cultivation and possession of marijuana–grew and used
marijuana to control his epileptic seizures. The Court held that the criminal
prohibition on the use of marijuana, vis-à-vis bona fide medical users, engaged their section 7 right to
liberty because of the possibility of imprisonment. In addition, by depriving
such individuals of the ability to choose marijuana as medication to alleviate
the effects of a serious illness, the prohibition also infringed their rights
to liberty and security of the person, independent of the potential for
imprisonment. The Court in Parker further
concluded that the blanket prohibition on marijuana possession did not accord
with the principles of fundamental justice. The Court of Appeal made reference
to the findings of the trial judge with respect to the medical conditions and
symptoms for which cannabis has a therapeutic effect:
Based on the evidence adduced at trial, the trial judge found that the defence had established that smoking marihuana has a therapeutic effect in the treatment of nausea and vomiting particularly related to chemotherapy, intraocular pressure from glaucoma, muscle spasticity from spinal cord injuries or multiple sclerosis, migraine headaches, epileptic seizures and chronic pain. <![if !supportFootnotes]><![endif]>
Of significance to this chapter, the Court in Parker concluded that the exceptions and exemptions contemplated by the legislation that could cover approved medical use were contrary to the principles of fundamental justice. Firstly, although the legislation theoretically contemplated that a person could obtain marijuana with a doctor’s prescription, the evidence in the case established that no pharmacist would fill such a prescription; the government would not look favourably on any physician who prescribed marijuana; and it was practically impossible to find a legal source of marijuana in Canada.<![if !supportFootnotes]><![endif]> Thus, this exception to the prohibition was held by the Court to be illusory.<![if !supportFootnotes]><![endif]>
Secondly, with respect to ministerial exemptions under section 56 of the CDSA, the Court found this procedure to be inadequate and not in accordance with the principles of fundamental justice. The Court ruled that, under section 56, unfettered discretion was vested in the Minister of Health, an inappropriate basis for decisions relating to the security or liberty of the person in the context of access to medical treatment to alleviate the effects of serious illness.<![if !supportFootnotes]><![endif]> Key issues relating to the section 56 exemption process included: the broad discretion given to the Minister under the CDSA; transparency of the process; and a clear definition of medical necessity.
In the end, the Court concluded that the broad prohibition on possession of marijuana was contrary to section 7 of the Charter and did not constitute a reasonable and justified limit under section 1 of the Charter.<![if !supportFootnotes]><![endif]> The Court then declared the prohibition on the possession of marijuana to be unconstitutional and of no force and effect. However, the Court suspended the declaration of invalidity for one year in order to give Parliament the opportunity to amend the law to include adequate exemptions for medical use. In the interim, Mr. Parker was granted a personal exemption from the prohibition on possession of marijuana. The Court in Parker suggested its finding that the prohibition on possession of marijuana violated section 7 of the Charter would likely apply to the prohibition on cultivation as well.<![if !supportFootnotes]><![endif]>
In September 2000, while an appeal was still under consideration, the government announced its intention to establish a new regulatory approach, which would define the circumstances and the manner in which the use of marijuana for therapeutic purposes would be authorized.<![if !supportFootnotes]><![endif]> A Notice of Intent was published on 6 January 2001 and meetings were held with key stakeholders as identified by Health Canada.<![if !supportFootnotes]><![endif]>
In April 2001, the
government unveiled proposed regulations governing the possession and
production of marijuana for therapeutic purposes. The proposed regulations were
designed to address the key issues raised by the Ontario Court of Appeal in
relation to the section 56 exemption process. There were two parts to the draft
regulations: (1) authorization to possess and (2) licence to produce.
The 30-day regulatory consultation period, during which Health Canada received comments from 139 individuals and groups, resulted in the following changes being made to the proposed regulations: the application process would be managed by the individual applicant instead of by a medical practitioner; restrictions on growing locations would be relaxed and would no longer include a one-kilometre restriction on cultivation outdoors near schools and other places frequented by children; the formula to calculate the number of plants permitted under a licence to produce would be adjusted to reflect estimated indoor and outdoor growing yields and margins of error; and transitional provisions would be included to extend all current exemptions by six months with the objective of ensuring patients would be afforded ample opportunity to comply with the new regulations.<![if !supportFootnotes]><![endif]>
On 4 July 2001, the
government announced that the regulations governing the possession and
production of marijuana for therapeutic purposes would come into effect on
30 July 2001.
<![if !supportEmptyParas]> <![endif]>
<![if !supportFootnotes]><![endif]> This section is based largely on Drug Prohibition and the Constitution, a paper prepared for the Senate Special Committee on Illegal Drugs, by David Goetz, Law and Government Division, Parliamentary Research Branch, Library of Parliament, 1 March 2001.
<![if !supportFootnotes]><![endif]>  O.J. No. 3522 (Ont. Gen.
<![if !supportFootnotes]><![endif]> Ibid., at paras. 49-50.
<![if !supportFootnotes]><![endif]> Ibid., at para. 54.
<![if !supportFootnotes]><![endif]> Ibid., at para. 66.
<![if !supportFootnotes]><![endif]>  O.J. No. 1574, at paras. 11,
31 and 32.
<![if !supportFootnotes]><![endif]> 49 O.R. (3d) 481.
<![if !supportFootnotes]><![endif]> Ibid.
<![if !supportFootnotes]><![endif]> Ibid., at
<![if !supportFootnotes]><![endif]> Ibid., at para. 163.
<![if !supportFootnotes]><![endif]> Ibid., at paras. 184-185 and 188.
<![if !supportFootnotes]><![endif]> Ibid., at paras. 191-194.
<![if !supportFootnotes]><![endif]> Ibid., at para. 190.
<![if !supportFootnotes]><![endif]> Health Canada, News Release, Minister Rock announces intention to develop
new approach for the use of marihuana for medical purposes, 14 September
<![if !supportFootnotes]><![endif]> Key stakeholders included
representatives from the Canadian Medical Association, the Canadian Pharmacists
Association, the Canadian AIDS Society, the RCMP, Solicitor General Canada,
Department of Justice, Correctional Service Canada and the Canadian Association
of Chiefs of Police.
<![if !supportFootnotes]><![endif]> Health Canada, Information, Marijuana Medical Access Regulations –
Amendments Resulting from Public Consultations, July 2001.
Schaffer Library of Drug Policy
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