Chapter 13 - Regulating Therapeutic Use of Cannabis

Charter challenges – therapeutic use of marijuana [1][8]

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),[2][9] 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.[3][10] 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.[4][11] 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.[5][12] 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.[6][13]

In R. v. Parker (2000),[7][14] 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. [8][15]

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.[9][16] Thus, this exception to the prohibition was held by the Court to be illusory.[10][17]  

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.[11][18] 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.[12][19] 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.[13][20]  

Government reaction

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.[14][21] A Notice of Intent was published on 6 January 2001 and meetings were held with key stakeholders as identified by Health Canada.[15][22]

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.[16][23]

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.