Ottawa, Ontario: The Ontario Court of Appeals this week upheld a lower court decision finding that the nation’s medicinal marijuana regulations were unconstitutional because they failed to offer authorized patients access to a legal source of medical cannabis. However, rather than strike down the regulations entirely, the court chose to modify them in such a way that paves the way for licensed, large-scale medical marijuana cultivation and distribution by private individuals.
“This case is not about the social and recreational use of marijuana, but is about those with the medical need to use marijuana to treat symptoms of serious medical conditions,” Ontario’s highest appeals court decided in a 3-0 ruling. “Exposing these individuals to the risks [of the black market] does not advance the objective of public health and safety.”
In its ruling, the court ordered Health Canada to immediately amend the nation’s medical marijuana regulations by eliminating provisions that prohibited licensed growers from receiving compensation for their product, from growing cannabis for more than one patient at a time, and from pooling their resources with other growers. By doing so, the decision grants apparent legal protection to third parties and medical marijuana cooperatives (so-called “compassion clubs”) that grow and supply medicinal cannabis to seriously ill patients.
“As the record makes clear, there are a number of people who already have a source of marijuana and wish to engage in compassionate supply of it to those in medical need,” the court determined. “It may be that not all of these people would satisfy the requirements to become [federally licensed cultivators]. However, we are satisfied that, on this record, enough would do so that taken together with existing DPL holders (persons with a designated production license), the DPL mechanism as modified could then provide a licit source of supply to [qualified patients.] Once this modification is implemented, [authorized patients] would therefore no longer need to access the black market to get the marijuana they need.”
It remains unclear precisely how this ruling impacts an interim policy enacted by Health Canada in July that mandated the agency to supply government-grown marijuana and seeds to patients. Health Canada had reluctantly begun distributing medicinal pot to a handful of qualified patients in August, but had appealed to the court to intervene. “Provided that the regulation of July 8, 2003 remains in place and is acted upon, there is no need to declare that the Government has a constitutional obligation to provide the first seed to those DPL holders who do not have one,” the court found.
The court also struck down a provision requiring patients to receive recommendations from two physicians before being admitted to the program, calling the policy “redundant.”
Ramifications of the court’s ruling impacts both medical marijuana users and recreational smokers. By striking down aspects of the regulations the court found to be unconstitutional, the court reinstated federal laws prohibiting the possession of marijuana by non-medical users. The lower court had previously determined that all Canadian laws prohibiting the possession of personal use amounts of marijuana were unconstitutional because the government had failed to comply with a 2000 Ontario Court of Appeals order mandating Health Canada to provide patients with legal access to the drug.
“This narrow remedy would create a constitutionally valid medical exemption, making marijuana prohibition … immediately constitutionally valid and of full force and effect and removing any uncertainty concerning the validity of the prohibition,” the court concluded. To date, approximately 650 patients have government authorization to use and possess medicinal cannabis.
Canada’s Supreme Court is expected to rule later this year on a separate constitutional challenge arguing that national laws prohibiting the non-medical use of marijuana violate Canadian’s guaranteed rights to life, liberty and personal security.
For more information, please contact either Keith Stroup, NORML Executive Director, at (202) 483-5500 or John Conroy, Esq., Director of Canada NORML, at (604) 852-5110.