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By: Tyler Sommers on July 7, 2015

The Supreme Court of Canada did not approve marijuana into a medicine. It found that prohibiting non-dried forms of medical marijuana violates the Charter.

In 2009, police charged a baker from Victoria with possession for the purpose of trafficking and unlawful possession of marijuana. At the time, the law limited lawful possession to only dried marijuana. The defence argued this limit was unconstitutional. A trial judge in British Columbia agreed, and the federal government appealed. An appeal judge agreed with the original decision, and the government appealed again, leading to the Supreme Court hearing the case.

The Supreme Court delivered its ruling in support of the original decision on June 11. At a press conference later the same day, Health Minister Rona Ambrose reacted. She said, “they think that they can approve a drug into a medicine, without clear clinical scientific evidence, and without safety reviews.”

There’s an important distinction here. The Supreme Court did not find that edible marijuana products are medicinal, and did not approve the drug. They actually made several other findings:

1. Prohibiting marijuana oils, edibles, etc, is a limit on the right to liberty of the person because it forces medical marijuana users to either continue with inadequate treatment (inhaling) or take illegal (and punishable by imprisonment) forms of treatment.

2. The limits proposed are contrary to the “principles of fundamental justice” because they are arbitrary.

3. The limits imposed by the legislation cannot be validated under the “Reasonable Limits” clause of Canada’s Charter of Rights and Freedoms.

In finding a violation of the Charter, the court struck down sections of the Controlled Drugs and Substances Act, making it legal to consume marijuana for medical purposes in non-dried format, for example, through baked goods or oils. That’s not the same thing as approving it into a medicine.

Trudo Lemmens, a professor of health law and policy at the University of Toronto, said “the Supreme Court does not pretend to make its own judgment about the medical properties of marijuana and certainly never ‘makes’ marijuana into a medicine.”

In this case, he explained, “the court simply looked at the evidence, and found it unreasonable to allow dried marijuana, and not allow these other forms, which may be needed for some forms of treatment and which seem more healthy to consume.”

The status of marijuana in Canada is a long and rather complicated history involving a number of laws, attempts at making laws, committee (both Senate and House of Commons) reports, and court decisions. Marijuana is not an approved drug in Canada. Although Health Canada does have an accessibility policy and marijuana is available for medical purposes, this is largely the result of courts striking down parts of laws, rather than the government introducing a law to make it legal.

The Supreme Court did not “approve a drug into a medicine” through this ruling, as Ambrose claimed. The court struck down sections of the CDSA found to be unconstitutional.

Hugh Verrier contributed reporting.

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