Last week, the Supreme Court held that the prohibition on medical marijuana products intended to be ingested or applied as creams ― as opposed to dried medical marijuana for the purposes of smoking, for which a permission can be granted ― is arbitrary and, therefore, not in accordance with principles of fundamental justice, in violation of s. 7 of the Canadian Charter of Rights and Freedoms. The decision, R. v. Smith, 2015 SCC 34, is terse, but it is noteworthy for a number of reasons.
The respondent, Joseph Smith, was involved in the confection of medical marijuana products not authorized by the regulations, such as “cannabis cookies,” massage oil, and lip balm. He was charged with possession of cannabis and possession for the purpose of trafficking, but contested the charges, arguing that the exclusion of such products from the medical marijuana exemptions was unconstitutional. The Crown retorted that, not being a consumer of such products, he lacked standing to bring such a challenge, but the Court made short work of this argument, pointing out that “[a]ccused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them.” 
On the constitutional claim, the Court found that the restriction on the scope of permissible medical marijuana products engaged s. 7 of the Charter in two ways. First, it exposed the makers, sellers, and users of the prohibited products to a threat of imprisonment, and was thus a potential violation of their right to liberty. Second, by “prevent[ing] people who have already established a legitimate need for marihuana — a need the legislative scheme purports to accommodate — from choosing the method of administration of the drug,”  the restriction infringes both these people’s liberty and their security of the person. Liberty comprises the right to choose one’s medical treatment. For its part, security of the person is compromised because the evidence accepted by the trial judge showed not only that for for some medical marijuana users smoking it is not the most medically effective treatment, but also that smoking can produce harmful consequences, such as “the risk of cancer and bronchial infections.” 
According to s. 7 of the Charter, a law that compromises life, liberty, or the security of the person must be “in accordance with principles of fundamental justice.” One such principle, long recognized by the Court, is a prohibition on arbitrariness, understood as the absence of a rational relationship between a law’s purpose and its effect. The purpose of the rule at issue here, the Court found, “is simply the protection of health and safety.”  According to the Court, the evidence on the relative effectiveness of the various forms of medical marijuana for different users shows that, far from serving this objective,
the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care. The effects of the prohibition contradict its objective, rendering it arbitrary. 
Besides, there was no evidence that the prohibited forms of marijuana are more dangerous to users, or that they are more likely to fall into the hands of people not authorized to use the drug for medical purposes. The result is “a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object,”  contrary to the requirement of non-arbitrariness. Needless to say, this outcome cannot be justified under s. 1 of the Charter, which requires a rational connection between an infringement of a right and some “pressing and substantial” objective.
The last issue for the Court was that of the remedy. In form, the remedy chosen by the Court is a declaration that the prohibitions on marijuana possession and trafficking “are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.”  In substance, this is a rare case of “reading in” ― the expansion of the scope of an underinclusive legal rule in order to make it constitutional. Finally, the Court refuses to suspend this declaration in order to give Parliament time to consider its options, because to do so “would leave patients without lawful medical treatment and the law and law enforcement in limbo.” 
This seems like an obviously correct decision, at least assuming that the trial judge’s assessment of the evidence on the effects of the various forms of medical marijuana is correct ― indeed, one wonders whether it was really necessary to make a Supreme Court case out of this issue. And what a case, too. Decisions signed by “the Court” are normally issues in the most politically salient and controversial cases. The assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5,  1 S.C.R. 331 was one such case. Arguably the Court’s most high profile drug-related decision, in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44,  3 S.C.R. 134 was not. Yet judging by the government’s hysterical reaction, the Court was right to treat what strikes me as a comparatively trivial matter as equivalent in importance to assisted suicide. This means, by the way, that the government’s attacks on the Court’s integrity may well be having the perverse effect of making the judges less accountable ― at least if it is the case, as many believe, that opinions signed by their individual authors are an important element of judicial accountability.
The Court, undoubtedly, is well aware of the political responses to its rulings. Its refusal to suspend the declaration of invalidity might be further evidence of this. That people would remain without treatment to which they are constitutionally entitled was no less true in Carter than it is here; that law and law enforcement would be left in limbo was just as true after the Court struck down the prostitution provisions of the Criminal Code in Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101. Yet in both those cases, the Court granted the government’s request for a suspension of the declarations of unconstitutionality. The government’s response ― especially its foot-dragging on Carter ― are unlikely to have impressed the judges.
The last point I wanted to note is that Smith joins the growing line of cases, which notably includes Insite, Bedford, and Carter, that has been described as an “empirical turn” ― a tendency to resolve Charter cases by reference to scientific evidence. The Court is not exactly consistent in its use of such evidence, as I have noted in the past, and as Lisa Silver notes in a fascinating recent post over at Ideablawg (which I hope to discuss in more detail soon). But Smith, at least, shows that this trend, however inconsistent, is still very much alive.
It also shows that, the government, for now anyway, tends to lose when scientific evidence ― which the current government, at least, so often ignores ― drives the case. Here, though, the loss seems particularly clear. The government, apparently, had no real arguments at all for its position, which makes me wonder ― what is it that they were smoking when they decided it was constitutionally defensible?
One thought on “What Were They Smoking?”
Smith interested me for two reasons.
First, for its continuation of the “unnecessary to the objective” strand of arbitrariness articulated in Chaoulli and Bedford. Personally, I think this oversteps the court’s institutional boundaries. It is Parliament’s purview to decide what’s necessary. The question in terms of arbitrariness should be whether there is a rational connection between the law and its objective. In Smith, there was such a connection in my view, as the Crown argued that the impugned law was necessary to determine whether medical marijuana users were operating within the boundaries of their authorization, and to ensure that these products did not enter the black market. I recall that the trial judge in Smith found a “logical connection” (or something like that), but dismissed the argument because the Crown did not adduce any evidence.
Second, I recall that the SCC in Smith stated there was “extensive” evidentiary findings made by the trial judge. From what I remember, there was in fact only one expert witness proferred by the accused. The trial judge’s findings of fact favourable to the accused were largely taken from this witness’ evidence, although there were also favourable findings taken from the Crown’s own evidence. Basically, I find it interesting that we have a legal system where a single expert witness can provide the factual foundation that takes down a criminal law. It makes you wonder whether litigation is the best forum for policy-making. I wonder if the ONCA in Bedford was correct in that maybe we need less deference to trial judges on legislative and social facts. But there are arguments against this I suppose, as canvassed by the SCC in Bedford.
This is all completely distinct and separate from my views on the policy merits of the laws at issue. Just a few thoughts. I enjoy your blog.