R v Smith: Removing Arbitrariness in the Regulation of Medical Marihuana


The regulation of medical marihuana has been a hot topic for quite some time now. More recently, the issue of how much regulation should be required went up to the Supreme Court of Canada (“SCC”) in R v Smith, [2015] 1 SCR 34 [Smith] this past June. In Smith, the SCC lightened the restrictions on the kind of marihuana products that can be used in Canada.


In Canada, the use of marihuana for treating medical conditions is regulated under the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. Within the Act, the drug can only be possessed for medical purposes in dried form and cannot be possessed for any reason in other forms using the active ingredients found in the cannabis plant. This means that patients who use dried marihuana have to inhale it via smoking or using a vaporizer, but cannot use the product via an oral or topical treatment. The problem with smoking marihuana is that it poses health risks and is said to be less effective for certain illnesses when taken in the dried form; the problem with vaporizers is that they are expensive and therefore not accessible to many.


In Victoria, British Colombia, Owen Edward Smith, an employee of the Cannabis Buyers Club of Canada (“The Club”) was held criminally liable because the company sold both edible and topical cannabis products, along with dried marihuana. These products included cookies, gel capsules, rubbing oil, topical patches, butters, and lip balms. The Club also gave its members recipe books, which contained instructions on how to make some of their products at home by extracting the active compounds that are found in dried marihuana. The Club would sell these products to people they were satisfied had a bona fide medical condition for which marihuana might provide relief, based on a doctor’s diagnosis or laboratory test. The accused’s job was to make the edible and topical cannabis products to sell them to these customers. As a result, in 2009, he was charged with possession of cannabis contrary to s. 4(1) of the CDSA and possession for the purpose of trafficking contrary to 5(2) of the CDSA. Mr. Smith challenged the restriction of limiting the administration of medical marihuana to its dry form.

At the Supreme Court of Canada & Implications

The SCC held that the restriction only allowing possession of medical marihuana in its dry form infringed on the rights to liberty and security of the person under s. 7 of the Charter. It infringed the right to liberty in two ways: 1) On the one hand, the prohibition on possession of cannabis derivatives exposed Mr. Smith to the threat of imprisonment; and 2) On the other, it also excluded patients from making reasonable medical choices through the threat of criminal prosecution. Lastly, it infringed the right to security because it forced some patients to choose a method of taking their medication that might be harmful or less effective than available alternatives.

The SCC went on to state that this restriction infringes the right to liberty and the right to security in a manner that is arbitrary. Since arbitrariness goes against the principles of fundamental justice that underpin s. 7 of the Charter, this was deemed to be unacceptable. Although the intended goal of the prohibition was said to be the mitigation of health and safety concerns, the SCC felt that it had a different effect, forcing people who had a legally recognized need to use marihuana to accept the risk of harm to their health that comes with smoking instead of administering it through a different method in a non-dried form. The Court goes on to confirm their thoughts as follows, “We are left with a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object” (Smith, para 46).

Lastly, the SCC had to decide if the violation of the Charter rights could be justified under s. 1. They ruled in the negative, stating the following:

As explained in Bedford, the s. 1 analysis focuses on the furtherance of the public interest and thus differs from the s. 7 analysis, which is focused on the infringement of the individual rights: para. 125. However, in this case, the objective of the prohibition is the same in both analyses: the protection of health and safety. It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the limit on the right be rationally connected to a pressing objective […] Like the courts below, we conclude that the infringement of s. 7 is not justified under s. 1 of the Charter. (Smith, para 28)

The SCC went on to declare that one could now possess non-dried forms of medical marihuana, such as edible or topical products. It’s refreshing to see that the Court ruled in favour of lifting this potentially life-threatening restriction. Sometimes, as was rightfully the case here, too much regulation can be harmful if it is not catered to reaching a proper objective.

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