Federal Court

Constitutional Law

Charter of Rights
Marihuana for Medical Purposes Regulations (Can.) infringed s. 7 and not justified under s. 1

Plaintiffs each had medical requirement for marihuana. Marihuana for Medical Purposes Regulations (Can.) (MMPR) control use of marihuana for medical purposes. They limit patient to single government-approved contractor and eliminate ability to grow one’s own marihuana or to engage one’s own designated producer. Plaintiffs challenged MMPR, claiming that restrictions they impose on access to marihuana for medical purposes violates their s. 7 of Canadian Charter of Rights and Freedoms. MMPR declared invalid as contrary to s. 7 of Charter. Prohibition against marihuana engages s. 7 liberty interests in two distinct ways: right not to have one’s physical liberty endangered by risk of imprisonment and right to make decisions of fundamental personal importance. Choice of medication, including cannabis, to alleviate effects of illness with life-threatening consequences is decision of fundamental personal importance. Security of person is engaged by establishment of regulatory regime that restricts access to marihuana. Security of person encompasses personal autonomy involving control over one’s bodily integrity and being free from state interference. MMPR prohibit cultivation of marihuana for oneself or purchase from supplier not registered as licensed producer (LP). If one cannot access LP for any reason, that person’s security is engaged as there would be no access to medication, resulting in physical or psychological suffering. Limitations imposed by MMPR are not in accordance with principles of fundamental justice. Objectives of MMPR are reduction of risk to public health and safety and to improve way in which person who needs marihuana gains access to cannabis. Restrictions in MMPR bear no connection to objectives. MMPR force plaintiffs to choose between medication and other basic necessities without rational connection to objectives. Government costs savings, while legitimate policy goal, could not trump plaintiffs’ Charter rights. Law is arbitrary and overbroad. Infringement of s. 7 not justified under s. 1. Plaintiffs demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with promotion of public health. There were simple measures that could be taken to minimally impact s. 7 interests. Operation of declaration of invalidity of MMPR suspended to permit Canada to enact new or parallel medical marihuana regime.

Allard v. Canada (Feb. 24, 2016, F.C., Michael L. Phelan J., T-2030-13) 263 A.C.W.S. (3d) 358

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