Canada, Cannabis and the Courts
Three major cases have shaped Canadian medical marijuana legislation.
At Issue – Constitutionality of Parliament’s attempts to restrict the production, procurement, and use of medical marijuana for medical purposes.
R. v. Parker 2000
Summary:
Canada Post intercepted a package of marijuana destined for Parker and gave it to police. No charges were filed. Parker requested the marijuana’s return to alleviate epilepsy symptoms. The Ontario Court of Justice rejected his request. Parker unsuccessfully appealed twice.
At his 1997 trial, Parker argued that the prohibition against marihuana in the former Narcotic Control Act violated his rights to fundamental justice under Section 7 of the Canadian Charter of Rights and Freedoms.
Ruling:
Trial and appeal courts concluded that Parker required marijuana to control epilepsy and the prohibition against it infringed his constitutional rights. They also found blanket criminal prohibitions on marijuana possession and cultivation unconstitutional because they did not provide exemptions for medical use. In response, Parliament introduced Marihuana Medical Access Regulations (MMAR) allowing individuals to possess, and produce medical marihuana with proper medical documentation.
Hitzig v. Canada, 2003
Summary:
Hitzig, a Toronto not-for-profit medical marijuana distributor, and seven patients argued that the MMAR provided insufficient access to cannabis medicine, effectively encouraging sick Canadians to purchase black market cannabis.
Ruling:
Citing the Parker decision, Ontario Superior Court judge Sidney Lederman agreed, giving the government six months from January 9, 2003 to remedy the situation, prompting Health Canada to announce on July 8 the creation of a contract to Prairie Plant Systems in Flin Flon, Manitoba. Health Canada to produce medical marijuana. The court struck down a regulation, requiring a specialist of the MMAR but did not find all the regulations unconstitutional.
R. v. Mernagh, 2013
Summary:
In April 2008 Matthew Mernagh, suffering from fibromyalgia, epilepsy, scoliosis, brain tumor and seizures, argued that doctors in the rural area where he lived were unable or unwilling to prepare MMAR paperwork allowing him access to cannabis therapies.
Ruling:
In April 2011, Justice Taliano agreed, finding the MMAR, as well as the personal possession and cultivation sections of Canada’s federal drug laws, to be unconstitutional and unenforceable violating Sec. 7 of the Charter of Rights and Freedoms and Sections 4 and 7 of the Controlled Drugs and Substances Act. The government convinced an appellate court that the laws were constitutional, overturning the judge’s decision. A new trial was ordered.
Canada, Cannabis and the Courts
