Police raided marijuana dispensaries across downtown Toronto on Thursday as part of its "Project Claudia". If you cheered this on though, you should put a hold on hailing your next Uber ride. Like Uber, marijuana dispensaries have flourished across the city in large part because of a legal gray zone.
Also like Uber, this legal gray zone can be attributed to a disruptive presence that previous regulations did not anticipate. In this case, it is the Charter of Rights and Freedoms that has struck down steps taken by the government to restrict access to medicinal cannabis products.
For more than 15 years, courts across Canada have accepted the scientific reality that marijuana has medicinal properties, that it alleviates the symptoms and pain associated with many illnesses. People who suffer gravely find relief from smoking or consuming cannabis, yet the federal government has been repeatedly found at fault for setting up barriers to health.
Unlike most other medicines though, many people who do not suffer from grave illnesses also enjoy consuming marijuana for recreational purposes. In addition, also unlike most other medicines, there is a stark criminal prohibition set up against the possession, trafficking and cultivation of marijuana.
All of this amounts to a strange situation that in the future, many may find curiously prurient. Already, the logic and moral attitudes that supported a prohibition against marijuana have mostly fallen away.
Yet despite the fact that Canadians elected a government last October with a mandate to legalize marijuana, prosecutors across the country routinely ask for jail terms for people who violate that prohibition. This is simply a part of our legal culture, and we have to ask why this continues.
A History of Struck Down Laws
Into this mix is the fact already referenced above - courts have repeatedly struck down regulations and laws that prevent reasonable access by those who use marijuana for medicinal, not recreational reasons.
In 2000, the Ontario Court of Appeal temporarily struck down our marijuana possession laws for this reason. The government responded by setting up a set of strict regulations to govern access to medical marijuana. Some of those regulations were then struck down in 2003 - again, the government failed.
In fact, the government has repeatedly tried to finesse medical marijuana regulations and tighten them up. Most recently, in 2013, the previous administration under Stephen Harper narrowed the scope of who could grow marijuana. They took away that right from those who suffer from the very illnesses marijuana has been proven to ameliorate. Just last month, a federal court struck down those laws as well. It has been quite the batting average when it comes to this subject.
In addition, last year, in 2015, the Supreme Court struck down any medicinal marijuana regulations to the extent that they prohibited the use of edible cannabis products. The response has been minimal there is a complete lack of regulated supply with respect to edible cannabis products.
Put simply, the law and the facts on the ground suffer from major constitutional uncertainty.
So what is the law that governs medical marijuana, with regulations being struck down this way and that? As a criminal defence lawyer, I would say that the law is whatever courts say the law is and that the answer to that question does not lie in any known regulations or legislation. It is quite an unsettling answer to give. There is no legal certainty except one: the government cannot prevent reasonable access to medical marijuana.
As it stands now there are no current laws that are consistent with the Charter of Rights and Freedoms. As a result, for someone to say that the law concerning medical marijuana is clear, I would counter by saying, show me the laws. Show me where that can be said with a straight face. It simply is not true.
When Laws Are Struck Down, There are Consequences
Because people are entitled to use medical marijuana, others are also entitled to produce it, and others are entitled to sell it. The government cannot force those who are sick to grow their own medicine. That also means that the various levels of government, including the city, cannot prohibit access to that product.
It is very much like an Uber situation, where we have economic activity that is lawful but entirely unregulated. That is the reason why we have seen such reticence, at least up until now, on behalf of the police to raid marijuana dispensaries.
In light of this ambiguous legal situation, tangled up as it is in civil rights and the right to medical care, it seems to be risky and cavalier to send police and prosecutors into this tricky arena and potentially deprive people of the medicine they need. Given the manner in which the city treaded so carefully with Uber, it may be high time for the city and the police to seek the careful and prudent advice of prosecutors in terms of what steps they take.
On top of all this, there is the fact that full legalization of recreational use of marijuana is coming within this federal government's mandate. Many see this as a long time coming. It is difficult to understand what social use there is right now to be bringing down the iron fist of criminal law on those who are stepping into this legal and political void.
The Relevant Caselaw:
Allard v. Canada: Federal Court strikes down current regulations.
R. v. Smith: Supreme Court strikes down regulations prohibiting edible marijuana.
Hitzig v. Canada: Court of Appeal strikes down key sections of former regulations.
R. v. Parker: Court of Appeal strikes down marijuana possession laws due to medical marijuana issues.