(OTTAWA, ON) – In 2013, Neil Allard, Tanya Beemish, David Herbert, and Shawn Davey instituted proceedings in Federal Court, in Vancouver, order to challenge the constitutionality of the new medical marihuana regime.
The federal government previously put in place the Marihuana Medical Access Regulations [MMAR] in 2001, repealed the MMAR on March 31, 2014, and put in place a substantially different regime under the Marihuana for Medical Purposes Regulations [MMPR].
More specifically, the plaintiffs sought declarations from the Federal Court, under Section 52 of the Canadian Charter of Rights and Freedoms, that the MMPR was in violation of Section 7 of the Charter and not saved by Section 1.
Furthermore, the plaintiffs sought orders from the Court under Section 24 of the Charter for an interim and final remedy.
According to Court documents, the plaintiffs are, “… four individuals, who have a medical requirement for marihuana to deal with certain physical conditions from which they suffer. Their lives have been adversely impacted by the imposition of the relatively new regime to control the use of marihuana for medical purposes.”
The Plaintiffs submit that criminalizing personal production of medical cannabis is a severe infringement on autonomy that deprives them of control over their bodily integrity “free from” state interference. Further, the removal of personal production as a supply option will inevitably leave patients unable to afford sufficient quantities of medicine, constituting “state action that causes physical and psychological suffering”. The Plaintiffs submit that for some patients, this may either hasten or lead to their death.
The action was heard at trial before Justice Phelan over three weeks in February and March 2015, and then re-opened in June and July to receive submissions regarding the Supreme Court of Canada’s decision in R. v Smith, as issued on June 11, 2015.
The Court concluded that the plaintiffs were entitled to a declaration that their Section 7 Charter rights have been infringed by the MMPR and that such infringement is not in accordance with the principles of fundamental justice or otherwise justified under Section 1.
The appropriate resolution, following the declaration of invalidity of the MMPR, is to suspend the operation of the declaration of invalidity to permit Canada to enact a new or parallel medical marihuana regime.
The declaration will be suspended for six months to allow the Canadian government to respond to the declaration of invalidity.