MEDICAL MARIJUANA:  Is it finally acceptable in all forms?

I know that I don’t have to explain how medical marijuana is a boon to medicine. It is suffice to say that pain is the main reason people ask for a prescription of medical marijuana. That is why so many states in the US and all of Canada permit government approved companies to grow marijuana for sale to those persons who have prescriptions from their doctors to buy marijuana.

Up until recently, in Canada, medical marijuana could only be purchased in dried form. It could then be smoked. However, Owen Smith, a Canadian living in British Columbia worked for the Cannabis Buyers Club of Canada, located on Vancouver Island, in British Columbia.  The Club sold marihuana and cannabis derivative products to members; people the Club was satisfied had a bona fide medical condition for which marihuana might provide relief, based on a doctor’s diagnosis or laboratory test.  It sold not only dried marihuana for smoking, but edible and topical cannabis products such as cookies, gel capsules, rubbing oil, topical patches, butters and lip balms.  It also provided members with recipe books for how to make such products by extracting the active compounds from dried marihuana.  Mr. Smith’s job was to produce edible and topical cannabis products for sale by extracting the active compounds from the cannabis plant. 

The police believed that he had operated outside the  Marijuana Medical Access Regulations (a Canadian law) which limits lawful possession of medical marihuana to dried marihuana. The police weren’t too happy with that because the Club did not have a production licence under the Marijuana Medical Access Regulations (MMARs).

On December 3, 2009, the police, responding to a complaint about an offensive smell, paid Mr. Smith a visit at his apartment in Victoria, and saw marihuana on a table.  They obtained a search warrant and seized the apartment’s inventory, which included 211 cannabis cookies, a bag of dried marijuana, and 26 jars of liquids whose labels included “massage oil” and “lip balm”.  Laboratory testing established that the cookies and the liquid in the jars contained tetrahydrocannabinol (“THC”), which is the main active compound in cannabis. THC, like the other active compounds in cannabis, does not fall under the MMARs exemption for dried marijuana. The police charged Mr. Smith with possession of THC for the purpose of trafficking and possession of cannabis.

The trial judge found that the restriction to dried marijuana deprives Mr. Smith and medical marijuana users of their liberty by imposing a threat of prosecution and incarceration for possession of the active compounds in cannabis. He also found that it deprives medical users of the liberty to choose how to take medication they are authorized to possess, a decision which he characterized as “of fundamental personal importance”, contrary to section 7 of the Charter. These limits offend the principles of fundamental justice because they are arbitrary; limiting the medical exemption to dried marijuana does “little or nothing” to enhance the state’s interest in preventing diversion of illegal drugs or in controlling false and misleading claims of medical benefit. For the same reason, the trial judge held that the restriction is not rationally connected to its objectives, and hence not justified under section 1 of the Charter. 

Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The charges were dismissed at his trial and when the Crown appealed to the B.C. Court of Appeal, the government lost the appeal.  The Crown then appealed to the Supreme Court of Canada.

Prohibition on possession, in combination with the exemption in the MMARs, was inconsistent with section 7  of the  Charter  of Rights and Freedoms and it is unconstitutional because it limits lawful possession of dried marihuana for medical purposes and nothing mores such as oils etc.

Different methods of administering marijuana offer different medical benefits.  For example, oral ingestion of the active compounds, whether by way of products baked with THC-infused oil or butter, or gel capsules filled with the active compounds, may aid gastro-intestinal conditions by direct delivery to the site of the pathology.  Further, oral administration results in a slower build-up and longer retention of active compounds in the system than inhaling, allowing the medical benefits to continue over a longer period of time, including while the patient is asleep.  It is therefore more appropriate for chronic conditions.

On the other hand, inhaling marijuana, typically through smoking, provides quick access to the medical benefits of cannabis, but also has harmful side effects.  Although less harmful than tobacco smoke, smoking marijuana presents acknowledged risks, as it exposes patients to carcinogenic chemicals and is associated with bronchial disorders.             

First, the prohibition on possession of cannabis derivatives infringes Mr. Smith’s liberty interest, by exposing him to the threat of imprisonment on conviction. Any offence that includes incarceration in the range of possible sanctions engages liberty which is against the Charter.    

The prohibition also conflicts with the rights to liberty of medical marihuana users, as they could face criminal sanctions if they produce or possess cannabis products other than dried marijuana. Section 7 0f the Charter would only apply if Mr. Smith hasn’t broken a legitimate law.

The Supreme Court in its ruling said, “We cannot agree with the dissenting (Court of Appeal) judge’s position on this point that the MMARs does not authorize medical marijuana users to convert dried marihuana into its active compounds or that authorization to possess medical marijuana is no defence for a patient found in possession of an alternate dosage form, such as cannabis cookies, THC-infused massage oil, or gel capsules filled with THC.” unquote

In this case, the state prevented people who have already established a legitimate need for marijuana and for this reason there is a need for the legislation to accommodate the users their method of the administration of the drug.  On the evidence accepted by the trial judge, this denial was not trivial.  Inhaling the marijuana subjects the person to the risk of cancer and bronchial infections associated with smoking dry marijuana, and it precludes the possibility of legitimate users choosing a more effective treatment.  Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the current law infringes security of the person that is contrary to section 7 of the Charter.

The Supreme Court said in part:  “The Crown says that the evidence adduced did not establish that the prohibition on alternative forms of cannabis intruded on any section 7 interest, beyond the deprivation of physical liberty imposed by the criminal sanction. It says that the evidence did not prove that alternative forms of medical marihuana had any therapeutic benefit; at most it established that the patient witnesses preferred cannabis products to other treatment options.  This submission runs counter to the findings of fact made by the trial judge.  After a careful review of extensive expert and personal evidence, the trial judge concluded that in some circumstances the use of cannabis derivatives is more effective and less dangerous than smoking or otherwise inhaling dried marihuana. A trial judge’s conclusions on issues of fact cannot be set aside unless they are unsupported by the evidence or otherwise manifestly in error. The evidence amply supports the trial judge’s conclusions on the benefits of alternative forms of marihuana treatment; indeed, even the Health Canada materials filed by the Crown’s expert witness indicated that oral ingestion of cannabis may be appropriate or beneficial for certain conditions. unquote                                       

The Supreme Court also said in its ruling; “The expert evidence, along with the anecdotal evidence from the medical marijuana patients who testified, did more than establish a subjective preference for oral or topical treatment forms.  The fact that the lay witnesses did not provide medical reports asserting a medical need for an alternative form of cannabis is not, as the Crown suggests, determinative of the analysis under section 7.  While it is not necessary to conclusively determine the threshold for the engagement of section 7 in the medical context, we agree with the majority at the Court of Appeal that it is met by the facts of this case.  The evidence demonstrated that the decision to use non-dried forms of marihuana for treatment of some serious health conditions is medically reasonable.  To put it another way, there are cases where alternative forms of cannabis will be “reasonably required” for the treatment of serious illnesses In our view, in those circumstances, the criminalization of access to the treatment in question infringes liberty and security of the person.” unquote        

Finally the court said; “We conclude that the prohibition on possession of non-dried forms of medical marijuana limits liberty and security of the person, engaging section 7 of the Charter.  This leaves the second question as to whether this limitation is contrary to the principles of fundamental justice. The trial judge found that the limits on liberty and security of the person imposed by the law were not in accordance with the principles of fundamental justice, because the restriction was arbitrary, doing “little or nothing” to further its objectives, which he took to be the control of illegal drugs or false and misleading claims of medical benefit. We agree. unquote

The question is whether there is a connection between the prohibition on non-dried forms of medical marijuana and the health and safety of the patients who qualify for legal access to medical marijuana.  The trial judge concluded that for some patients, alternate forms of administration using cannabis derivatives are more effective than inhaling marijuana.  He also concluded that the prohibition forces people with a legitimate, legally recognized need to use marijuana to accept the risk of harm to health that may arise from chronic smoking of marijuana. It follows from these findings that the prohibition on non-dried medical marijuana undermines the health and safety of medical marijuana users by diminishing the quality of their medical care.  The effects of the prohibition contradict its objective thereby rendering it arbitrary.

The Supreme Court said; “We conclude that the prohibition of non-dried forms of medical marijuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice.  It therefore violates section 7 of the Charter.”

This decision benefits only those who have legitimate medical uses of marijuana in other forms such as oils etc.) and those who are permitted to manufacture those other forms and sell it to only those who have legitimate documents stating that they require that form of treatment. Of course, this decision only applies to Canada.