R v Beren: Exemptions for Medical Marijuana under s. 7

Background

In Canada, Marijuana is subject to a criminal prohibition on possession, sale, and production under the Controlled Drugs and Substances Act, SC 1996, c 19 [Act]. In recent years, however, courts have recognized exemptions for the medicinal use of marijuana based on s. 7 of the Charter. The first and most profound crack in the absoluteness of the prohibition came in the form of R v Parker, [2000] 49 OR (3d) 481 (ONCA) [Parker], wherein the Ontario Court of Appeal held that s. 4 of the the Act (which concerns possession) failed to exempt medical users of marijuana from criminal sanction, and thus was unconstitutional.

Following Parker, the government enacted the Marihuana Medical Access Regulations, SOR/2001-227 [MMAR]. The MMAR entailed a scheme for authorization to possess marijuana based on declarations from medical practitioners. Once so authorized, the MMAR provided two legal options to patients for producing medicinal marijuana: they could either grow it themselves or designate someone else to grow it for them. In the latter case, such a designate would be barred from being compensated for their growing and from growing for more than one authorized patient.

The MMAR was tested against the Charter in Hitzig v Canada, [2003] 231 DLR (4th) 104 (ONCA) [Hitzig]. The Ontario Court of Appeal found that (1) certain parts of the authorization scheme,( 2) the failure to provide a licit source of medical marijuana, and (3) the supply provisions preventing designated growers from (i) being compensated (s. 34(2)), (ii) from growing for more than one authorized patient (s. 41(b)), and (iii) from growing in combination with more than two other designated growers (s. 54), violated s. 7.

In response to Hitzig, Health Canada relaxed and streamlined its authorization criteria. It also set up a government source of marijuana for authorized patients in the form of the Prairie Plant System, a contracted monopoly supplier. Finally and most importantly for our purposes, however, it reinstated most of the supply provisions that had been invalidated in Hitzig. Section 41(b), the “one-to-one” dealing restriction, and s. 54, the “three max” growing restriction, came back as ss. 41(b.1) and 54.1.

R v Beren

On January 15, the Supreme Court of Canada denied leave to appeal in R v Beren and Swallow, 2009 BCSC 429 [Beren]. This case constituted a further s. 7 challenge to the MMAR as they have most recently stood. In the words of Justice Koenigsberg of the British Columbia Supreme Court:

The issues as presented by the defence are that the MMAR are constitutionally defective in two principle areas. The first refers to access to the legal protections of the program, which essentially means that physicians act as gatekeepers. The second area is the ability to legally obtain an adequate supply of medicine.

The access issue arises because of the restrictive nature of the regulations and the cumbersome process required to obtain, amend, and renew an [Authorization to Possess]. The unwillingness or reluctance of physicians to act as the sole gatekeepers to legal cannabis is a major contributor to the access problem, as is the requirement that specialists be consulted for category 2 conditions…

The supply issue, as set out by the applicant, arises in large part from the MMAR restrictions on the number of plants which may be grown by the holder of a [personal use production licence]. The following are examples of those restrictions relied upon by the defence: the prohibition on one [designated personal production licence] providing medical marihuana to more than one person with an [Authorization to Possess]; the restriction on the number of producers that can pool resources and produce medical marihuana in one physical location; the government’s policy decision to provide end-users with the option to purchase only a single strain of pre-ground, gamma-irradiated cannabis from its monopoly supplier; the government’s policy decision to cut patients off from the government supply because of their economic inability to afford the medicine; the government’s policy decision to not include cannabis resin in by-products within the ambit of the MMAR; and the government’s unwillingness to license and regulate the network of community-based dispensaries, the compassion societies…. (paras 29-31). [Emphasis added]

This case was more or less a retread of Hitzig, with Justice Koenigsburg “adopt[ing], wherever applicable, the legal analysis outlined in Hitzig.” As for the preliminary issue of whether the rights to liberty and security of the person were engaged,

the court [in Hitzig] determined that [they] were…The right to liberty was analyzed in two ways. First, individuals with medical conditions requiring the use of marihuana were at risk of criminal prosecution and imprisonment, should individuals not meet the eligibility requirements set out in the MMAR. Second, viewing the right to liberty more broadly, individuals should have the right to make decisions of fundamental personal importance…The right to security of the person included the right to access medication which was reasonably required to treat a serious medical condition when such access was interfered with by threat of criminal sanction (para 83).

As for the subsequent issue of whether the threshold violation of s. 7 rights was consistent with the principles of fundamental justice, the following approach was taken in Hitzig, which Justice Koenigsberg excerpted:

There is an alternative approach to the second stage of the s. 7 inquiry which also leads to the conclusion that the provisions in the MMAR are inconsistent with the principles of fundamental justice. This alternative approach begins by recognizing that it is a principle of fundamental justice within our legal system that the individual rights identified in s. 7 may be subordinated, at least to some extent, to substantial and compelling collective interests…

If the action is in furtherance of a substantial and compelling interest, then the question becomes whether the state action imposes an undue burden on the individual’s rights…Determining when the balance struck by the state can be said to effect a fair balance between state interests and individual rights can be a very difficult question which pushes the court to the brink of the forbidden world of policy-driven decision making (paras 119-120).

Access

Turning to the access issue, Justice Koenigsberg answered “the question of whether the facts in this case engage the invitation in Hitzig to reconsider whether the justification for physicians as gatekeepers has become arbitrary” with a clear “no.” From Hitzig, quoted in Beren:

Whether marihuana will mitigate the particular symptom of an individual with a particular serious medical condition is fundamentally a medical question. Just as physicians are relied on to determine the need for prescription drugs, it is reasonable for the state to require the medical opinion of physicians here, particularly given that this drug is untested (para 139).

Supply

The resolution of the supply issue was an exercise in determining whether the rationale provided by the government for reinstating the provisions originally invalidated in Hitzig passed s. 7 muster. The rationale, reproduced in Beren at paragraph 51:

Health Canada re-instated the limits on production of marihuana previously found in subsection 41(b) and section 54 of the MMAR in order to ensure consistency across programs within the Drug Strategy and Controlled Substances Programme, and more specifically to:
(a) maintain control over distribution of an unapproved drug product, which has not yet been demonstrated to comply with the requirements of the FDA and its regulations;
(b) minimize the risk of diversion of marihuana for non-medical use;
(c) respect Canada’s obligations as a signatory to the United Nations’ Single Convention on Narcotic Drugs, 1961, as amended in 1972, concerning cultivation and distribution of cannabis; and
(d) continue progress toward Health Canada’s vision of a supply model wherein marihuana for medical purposes would be, among other things;
(i) subject to product standards;
(ii) produced under regulated conditions; and
(iii) distributed to authorized persons via a pharmacy-based system.

As it so happened, the Federal Court had dealt very recently with this very issue in Sfetkopoulos v Canada (Attorney General), 2008 FC 33, affirmed by the Federal Court of Appeal in Canada (Attorney General) v Sfetkopoulos, 2008 FCA 328 [Sfetkopoulos], finding s. 41(b.1) unconstitutional for two reasons: (1) access to a licit supply of medical marijuana remains problematic, as evidenced by stastics pertaining to access, and (2) restrictions on holders of licences to produce medical marijuana are arbitrary, with no “state interest” being served by them. The Federal Court, addressing the rationale provided by the government for reinstating the previously found to be invalid provisions:

The first justification…is that such a restriction on designated producers limiting them to produce for only one user is for the purpose of maintaining control over distribution of an unapproved drug product. It has not been demonstrated to me why limiting the production of a designated producer to one customer will have this effect. The Regulations only permit such producer to produce marihuana for persons already authorized by the Minister to possess and use marihuana: that is, holders who have an [Authorization to Possess] licence. [Authorization to Possess] holders are persons adjudged by the Minister to be legitimate users of this ‘unapproved drug’ and whether the producer grows for one [Authorization to Possess] holder or 30 [Authorization to Possess] holders the distribution of marihuana would be to persons, and for purposes, already countenanced by the Regulations…

As a second rationale, it is said by the government that paragraph 41(b.1) will ‘minimize the risk of diversion of marihuana for non-medical use.’…Again, designated producers, no matter how many customers they have, must confine their sales to persons with an [Authorization to Possess]. A designated producer, since he is authorized to grow marihuana now, has a present potential for producing more than his one customer needs and diverting the surplus for illicit sale. This would be true whether he grows for one customer or 25…

Fourthly, the government says that paragraph 41(b.1) is necessary to ‘maintain an approach that is consistent with movement toward a supply model’ whereby medical marihuana would be produced and made available like other therapeutic drugs, on prescription and through pharmacies…But we do not know when this new age will dawn and in the meantime the courts, in their wisdom, have concluded that persons with serious conditions for which marihuana provides some therapy should have reasonable access to it…[T]he hope for the future [does not] explain why a designated producer must be restricted to one customer (paras 14-15, 18).

Thus Justice Koenigsberg, “[a]dopting the reasoning in Hitzig and Sfetkopoulos, further bolstered by the evidence before th[e British Columbia Supreme C]ourt,…f[ou]nd ss. 41(b.1) and 54.1 of the MMAR contrary to s. 7 of the Charter.” The declaration of invalidity was stayed for one year.

Thoughts

The above is a legal topic that should be of great interest to both legal professionals and laypersons alike. My guess is that the legalization of marijuana is simply a matter time, an inevitability: as the current generation in power passes, the positions it vacates will be taken up by those of a generation with considerably more liberal views toward the drug. In the meanwhile, however, it is quite interesting to see how courts have been finding, on the basis of s. 7, these pronounced exemptions in the therapeutic context to the longstanding and otherwise valid prohibition (see R v Clay, [2003] 3 SCR 735) on marijuana.

As for Supreme Court of Canada’s denial of the Crown’s application for leave to appeal, it is correct and as I predicted when I first read that the court was to consider it. This is because Beren is in one part (the access issue) a naked revisitation of the settled law that is Hitzig, and in the other part (the supply issue) but a scantily clad revisitation, in that it concerns the state’s attempt to reinstate the exact policy that been constitutionally invalidated in that case. Definitively sealing the coffin is the fact that a case decided just months prior, Sfetkopoulos, had already dealt with and provided an answer on the same issue facing the British Columbia Supreme Court in Beren. As the Court adopted this reasoning, and leave to appeal had been denied in that case, it is hardly surprising the government was denied yet another kick at the proverbial can. In the end, then, we are left with the principles laid out in Hitzig, the state’s attempt to go back on it having been decisively judicially rebuffed.