A Legal History of Medical Cannabis in Canda

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2000: R. v. Parker (Ontario Court of Appeal)
R. v. Parker was the landmark decision that first invalidated Cannabis prohibition. However the declaration of invalidity was suspended for one year. It concerned the case of an epileptic who could only alleviate his suffering by recourse to Cannabis. The Court found that the prohibition on Cannabis was unconstitutional as it did not contain any exemption for medical use.  Crucially, the Parker decision instructed the government to remove the criminal sanctions around helping people access medical cannabis.  To date this has not been done.


2003: Hitzig v. R.
Hitzig v Canada is a 2003 civil case that challenged the constitutionality of the Marihuana Medical Access Regulations (MMAR), now the Medical Marihuana Access Division. MMAR provided for exemptions from the law for approved medicinal users while allowing for no legal source of therapeutic cannabis products.

The Hitzig applicants argued that the MMAR provided an illusory access to cannabis medicine, and effectively encouraged sick Canadians to look to the black market for their legal medication, and/or the seeds/plants needed to 'grow their own.' Ontario Superior Court judge Sidney Lederman agreed that this situation violated the rights of the applicants as set out by the Canadian Charter of Rights and Freedoms (1982). He gave the Canadian government six months from January 9, 2003 to remedy the situation, which prompted the controversial announcement on July 8 that Health Canada would begin distribution of marijuana grown under contract to Prairie Plant Systems in Flin Flon, Manitoba.


2003: R. v. J.P. (Ontario Court of Appeal)
On May 16, 2003, the Ontario Superior Court found the accused party, "J.P.", not guilty. The appellate court ruled that the Medical Marihuana program's rules do not form a basis for the prosecution of J.P., as they do not themselves contain any effective prohibitions.  

The Crown appealed the decision of the Ontario Superior Court to the Ontario Court of Appeals and in October 2003, the Court of Appeals upheld the invalidity of section four of the Controlled Drugs and Substances Act as it applies to Cannabis, on the same grounds as those given by the lower court. The court stated in its ruling:  

“As we have held, the MMAR [Medical Marihuana Access Regulations] did not create a constitutionally acceptable medical exemption. In Parker, this court made it clear that the criminal prohibition against possession of marihuana, absent a constitutionally acceptable medical exemption, was of no force and effect. As of    April 12, 2002, there was no constitutionally acceptable medical exemption. It follows that as of that date the offence of possession of marihuana in s. 4 of the CDSA was of no force and effect. The respondent could not be prosecuted.  "

2007: R. v. Long (Ontario Court of Justice)
The Ontario Court of Justice held in R. v. Long that the prohibition in the Controlled Drugs and Substance Act against the possession of Cannabis were unconstitutional in the absence of an accompanying constitutionally acceptable exemption for medical Cannabis. The current exemption depended on the government supplying Cannabis, which it was only doing as a result of the policy. However, the policy did not impose a legal obligation upon the government to supply Cannabis to those who needed it for medical purposes. The court held that without such an obligation, the exemption was constitutionally unacceptable, as access to marijuana depended on the implementation of a policy rather than the application of a law. If the government wanted to control the supply of Cannabis, it had to impose an obligation upon itself to supply marijuana to eligible persons. The court held that if the government was obliged by law to supply cannabis in accordance with the policy, the exemption would be constitutionally acceptable.  A notice of appeal was filed by the Crown on 23 August 2007.

2007: R. v. Bodnar/Hall/Spasic (Ontario Court of Justice)
InR. v. Bodnar/Hall/Spasic, the Ontario Court of Justice followed the Long decision, holding that the prohibition against possession of Cannabis in the Controlled Drugs and Substances Act is invalid and of no force or effect. Hon. Justice Edmonson stated in his ruling that "there is no offence known to law that the accused have committed."     

2008: Sfetkopoulos v. Canada (Federal Court of Canada)
As of 10 January 2008, Justice Barry Strayer of the Federal Court of Canada struck down the federal regulations concerning the growing of medical Cannabis by licensed producers. Prior to the case, a producer was prohibited from growing for more than one person. The Marijuana Medical Access Regulations (MMAR) require all medical Cannabis users to obtain their prescription from a limited number of sources:

·Personally grown                   
·Produced by a designated individual for that person                   
·From a licensed dealer   
 

At the time, there was only a single licensed dealer in Canada, which grew in Manitoba and processed in Saskatchewan, making it difficult to access. A multitude of users requested a single designate, of which all applications were denied except for one. This regulatory structure was, they argued, a violation of the Section 7 of the Canadian Charter of Rights and Freedoms, because it forced sufferers to go through illicit channels to obtain medical Cannabis, to which they were legally entitled. Thus, they were being forced to break the law in order to ensure their constitutionally-protected right to "security of the person."

The court agreed with this reasoning and struck down subsection 41(b.1) as being of no force or effect.  This, however, does not concern the non-medical use of Cannabis.

2011: R. v. Mernagh (Ontario Superior Court)
On April 12, 2011, Justice Donald Taliano found that Canada's Marijuana Medical Access Regulations (MMAR) and "the prohibitions against the possession and production of Cannabis contained in sections 4 and 7 respectively of the Controlled Drugs and Substances Act" are "constitutionally invalid and of no force and effect". The government was given 90 days (until 11 July) to fill the void in those sections, or the possession and cultivation of cannabis would become legal in all of Ontario. This includes the non-medical use of the drug.

The mid-July deadline was extended when federal government lawyers argued that current Cannabis laws and regulations should stay in place until Ontario's highest court could hear the appeal, which took place over the 7th and 8 May 2012.  In granting the deadline extension, the Court of Appeal noted that "The practical effect of the decision if the suspension were permitted to expire on 14 July would be to legalize Cannabis production in Ontario, if not across Canada." The decision released February 1, 2013 states that the Ontario's Appeals Court has upheld current Cannabis laws in Canada, overturning the decision made by the lower court judge in 2011.  In the decision, the appeals court ruled that the lower court judge had made several errors in striking down Canada's Cannabis laws, citing an absence of a constitutional right to use medical Cannabis. The court also stated that Mernagh failed to provide evidence from a doctor that he met the criteria for the use of medical marijuana. The decision was met with criticism and disappointment from many in Canada, including the Canadian HIV/AIDS Legal Network. After the ruling, they restated Mernagh's (and many other medical marijuana users in Canada) issue with the current Cannabis rules: "Allowing the current regulations to stand unchanged will leave many people with serious health conditions without effective access to legal authorization to use Cannabis as medicine."

2015: R v. Smith (Supreme Court of Canada)
The Supreme Court ruled in this case that the restriction to dried marijuana under the MMAR and the MMPR were unconstitutional.

2016: Allard et al v.  Regina
Injunctive relief granted by Judge Manson to those previously licensed under MMAR within certain dates. MMPR declared unconstitutional by BC Superior Court, declaration suspended for 6 months to allow government time to respond to ruling and reincorporate personal production. Importantly references Morgentaler and Smith and stated the criminal sanction on helping people access medical Cannabis has to be removed.  The government did not challenge the Allard decision but it has yet to remove the criminal sanctions for helping people access medical Cannabis outside of the LP system.