Ottawa (Globe and Mail) – The Supreme Court of Canada has ruled that users of marijuana for medical purposes have the right to bake the drug into cookies, take it in lozenge form or as topical oils, in addition to smoking it.
In a unanimous ruling Friday, the court said that federal law limiting medical marijuana use to smoking the dried form is arbitrary, and runs counter to the government’s stated objective of protecting health and safety. “The evidence amply supports the trial judge’s conclusions that inhaling marihuana can present health risks and that it is less effective for some conditions than administration of cannabis derivatives,” the court ruled, in a decision signed collectively by “the court,” which sometimes happens to give institutional weight to a ruling.
The right at stake was described by the British Columbia Civil Liberties Association as the right to personal autonomy in medical decision-making – no matter what medical science may say about the wisdom of the decision.
The ruling shows once again that the Supreme Court has no interest in supporting a government “war on drugs.” In a previous unanimous ruling, the court said the government had no right to close a Vancouver clinic at which drug addicts could inject illegal drugs under medical supervision.
The court did not directly pronounce on the latest version of government regulations, created in 2013, that established a system of government-licensed producers. But it seems clear that the producers will need to be allowed to create non-smokable forms of the drug.
The court said using marijuana in other forms than smoking it is “medically reasonable,” citing factual findings from the trial judge that smoking marijuana can be dangerous to the health of users, and that other forms of ingesting the drug are safer and more effective, according to both expert evidence and anecdotal reports of users.
In short, the right to be wrong in personal medical choices, without the prospect of facing criminal charges. “The court should not consider whether the choice is justified, rational or prudent, the product of mental illness or immaturity, or involves unmitigated risks,” the BCCLA said in a legal document filed with the court. Such an approach is not used for freedom of religion, conscience, speech or association, it said, adding that the court “should not only support the right to discuss the good life; it should support the right to live it.”
The case involved Owen Smith of Victoria, who was working for $10 to $13 an hour for a medical “club” that sold marijuana to those who use it for medicinal purposes. In 2009, police, responding to a complaint about an offensive smell in an apartment unit, found 211 marijuana cookies and other products. Mr. Smith was charged with possession of marijuana and possession for the purpose of trafficking. The trial judge ruled that the law limiting medical users to smoking the dried form of cannabis violated their right to liberty. Two of three judges on the B.C. Court of Appeal agreed, and the federal government appealed.
The government argued that Canadians’ right to liberty protected by Section 7 of the Charter of Rights and Freedoms does not mean the right “to obtain or produce drugs based on a subjective belief in their therapeutic value, irrespective of medical need or lawfully available alternative treatments.” It said the government has the right to create a regulatory scheme for medical marijuana users, limiting its use in ways that medical science deems to be safe and therapeutically effective.
Mr. Smith’s lawyers argued smoking is the most dangerous form of ingesting the drug, and that the federal law regulating the use of medical marijuana forces seriously ill people into more harmful and less effective ways of consuming the drug. As evidence, it called a variety of users who testified to the benefits of using topical oils, lozenges or cookies. (The company Mr. Smith worked for also produced dog biscuits for pets suffering from cancer.)