Editor’s Note: Today’s post comes from Matthew DeCloedt, a law student at Central European University and a participant in the Cannabis: Global Histories conference held from April 19-20, 2018, at the University of Strathclyde, Glasgow. DeCloedt brings a legal lens to the conversation surrounding medical marijuana in Canada, with a specific focus on human rights. Enjoy!
To understand how Canada went from limited access to cannabis for therapeutic purposes to the impending legalization of recreational pot, it is crucial to understand the impact of human rights discourse on the erosion of impediments to accessing medical cannabis.
From the early 2000s, Canadian courts were a crucial forum for taking issue with the federal government’s restrictive cannabis law and policy.
Section 7 of the Canada Charter of Rights and Freedoms, which gives “Everyone…the right to life, liberty and the security of person,” was the most important of the rights invoked by litigants.
The success and failure of human rights claims depended on Canadian litigants’ ability to convince the courts that the threat of criminal sanctions for possessing and cultivating cannabis for therapeutic purposes violated their right to life, liberty and security of person. In other words, they asked whether prohibition was a proportional response to the supposed harms of using cannabis?
An important part of this debate revolved around the analysis and application of scientific evidence in the courtroom.
In 2000, the Supreme Court of Canada held that the prohibition of cannabis for therapeutic purposes violated the Charter in R v Parker. It gave the federal government one year to draft legislation creating a medical exemption for cannabis use, which led to the creation of the Marihuana Medical Access Regulations [MMAR].
The claimant in that case, Terence Parker, suffered from epileptic seizures and found that cannabis alleviated his symptoms. He alleged that the possibility of his going to prison for possessing cannabis put him in a precarious situation: he was forced to choose between his freedom and his health.
The Court agreed that this was an unacceptable dilemma. Smoking pot in this context was protected by the Charter because Parker’s “autonomy to make decisions of personal importance” regarding his health was at stake.
But the MMAR framework proved to be inadequate in ensuring that cannabis was accessible to those with a medical exemption from criminal prosecution.
Just three years after the Parker decision, the government’s MMAR regime was under the Supreme Court’s microscope. Several individuals argued that access to medical cannabis was too restricted and infringed on their Charter rights. Parker gave these people a right to use cannabis for therapeutic purposes.
The government was supposed to have created a legal market for medical users. Instead, the Supreme Court noted, individuals had to seek cannabis on the black market. This put them at risk of breaking the law and going to prison and thus constituted an infringement of the right to liberty.
Indeed, some 80% of those entitled to a medical exemption from criminal prosecution had to purchase their “medicine” from street dealers. This was unacceptable. The Supreme Court sent the government back to the drawing board to rewrite its regulations in conformity with the Charter.
By 2009, little had changed. The Supreme Court of British Columbia noted that the medical exemption created by the MMAR, precluding criminal prosecution, was “illusory.” Entitled to possess, purchase, and cultivate cannabis for therapeutic purposes, a majority of users were unable to rely on the government to give them access to a lawful source of the substance.
The government justified its decision to limit the market in medical cannabis, in part, on the basis that Health Canada has not, to this day, recognized any medical benefit derived from cannabis’ use.
When the science of cannabis came before the Supreme Court in 2003, it was loathe to assess the evidence presented to it. “The question before us,” it stated, “is purely a matter of law.” Despite such statements, Canadian courts have consistently looked to the science to inform their decisions.
Earlier, in 2000, the Ontario Court of Appeal was convinced that the “scientific evidence is overwhelming” that cannabis, particularly the active ingredients THC and CBD, had “medicinal value.”
It seemed cannabis’ time as a medicine had come. But the scientific record can only do so much in determining the outcome of a legal case. That is because judges are hesitant to accept as legal fact what is deemed scientific fact.
The evidence in Parker, for example, was only a snapshot of the state of cannabis research at one point in history. For this reason, it did not convince the Court one way or another. It was the human rights claim that was convincing.
The Supreme Court, however, was confident to announce, in 2003’s Malmo-Levine; Caine, that many of the myths surrounding cannabis use had been dispelled. Cannabis doesn’t cause irreversible physical or mental damage; there’s no clear link between its use and psychosis; it’s not addictive; and it isn’t a gateway drug. The only thing that was really problematic from a harm perspective was the act of smoking.
And these negative effects, according to expert testimony presented to the Supreme Court of British Columbia in 2009’s R v Beren, could be remedied by ingesting cannabis. But the same experts also noted that “cannabis research is really in its infancy”. More researched needed to be done to confirm such hypotheses.
Overall, the science behind cannabis proved unconvincing in Canadian courts throughout the 2000s. With great frequency, judges stated they needed to wait for more evidence that cannabis was medically useful or non-harmful.
Change was slow, but the cannabis debate, so often invoking the Charter and human rights, altered the way Canadians thought about pot. For some, it was a medical therapy they had a right to no matter the scientific support for its use. Little by little, the courts struck down impediments to accessing medical cannabis.
Without saying so explicitly, the Courts did not believe prohibition was a good policy choice, nor was it fully compliant with the government’s human rights obligations. In a 2016 case, the Federal Court reiterated that “a ‘rights enhancing’ approach” was necessary when assessing the constitutionality of government regulations on medical cannabis.
Though human rights litigation didn’t lead to full legalization, it made Canadians think about pot differently. For some, cannabis is a medicine.
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