Article by Adam Goldenberg , Policy Options
Canadians support the legalization of marijuana for all sorts of reasons. Parents fear their kids might end up with criminal records. Seniors want respite from chronic pain. Police chiefs and criminologists acknowledge that it’s really only criminals who profit from prohibition.
Yet in court, the only successful argument for expanding access to cannabis has been the case for medical marijuana. Politics will soon intervene. An expert task force led by former Liberal cabinet minister Anne McLellan will make recommendations this November on how the Liberals can implement their promise to legalize pot for recreational use. The government has promised legislation by next spring.
The question now is, once recreational cannabis consumption is no longer a crime, will there be any reason to maintain a separate system for medical marijuana? The answer, from the perspective of constitutional law, is almost certainly “no.”
So, despite their nearly two decades of court victories, medical marijuana users may soon find themselves without privileged access to pot.
Sixteen years ago, the Ontario Court of Appeal ruled that without an exemption for medical use, the blanket prohibition on the cultivation and possession of marijuana violated the Charter right not to be deprived of liberty or security of the person except in accordance with the principles of fundamental justice.
Just three years later, however, the Supreme Court of Canada upheld the prohibition of simple possession for recreational purposes. “There is no free-standing constitutional right to smoke ‘pot’ for recreational purposes,” wrote Justices Charles Gonthier and Ian Binnie for the majority.
Marijuana litigation has since focused on defining the limits of the constitutionally required medical exemption. Notably, the Supreme Court of Canada held last year that the government could not exclude non-dried forms of medical marijuana, such as edibles and oils, from its medical marijuana regime. Then, in February, in Allard v. Canada, the Federal Court struck down the whole of the Marihuana for Medical Purposes Regulations (MMPR), which the former Conservative government established in 2013.
In Allard v. Canada, Justice Michael Phelan held that the medical marijuana regulations unconstitutionally restrict access by forcing patients to purchase their pot from a small number of licensed producers — that is, from private companies the federal government has authorized to cultivate and market medical cannabis. Rather than attempting to rewrite the regulations from the bench, Justice Phelan struck them down in their entirety, but suspended his declaration of invalidity for six months to give the government time to draft and promulgate new rules.