Is the Cannabis Act unconstitutional? The Canadian government made the Cannabis Act law in 2018. Since then, Canadians, regardless of medical status, have been able to enjoy legal cannabis. Canada’s old medical regulations were disbanded in light of the new recreational rules. Lumping everyone under the same regulatory framework.

But did scrapping the old medical regs violate the Charter of Rights and Freedoms?

 The Cannabis Act unconstitutional?

Shaun Howell’s Charges

On March 24, 2017, Shaun Howell was charged with possessing over 3kg of cannabis. The police said it was for the purpose of trafficking. Howell was also charged with the illegal production of cannabis. He argued that his charges should be dropped. The Controlled Drugs and Substances Act, as well as the old medical cannabis regulations, were in violation of his section 7 rights in the Charter.

The judge, Justice Robert A. Graesser, ruled that Howell’s trafficking charges were not in violation of the Charter. But interestingly, Justice Graesser did rule that the THC limits were a violation. According to the Cannabis Act, THC oil cannot exceed 30mg per millilitre, and capsules cannot exceed 10 mg.

Which may be all well and fine for a casual recreational user. But for a medical patient, this is inadequate and in a big way. And Justice Graesser’s ruling seems to indicate that the Cannabis Act is unconstitutional.

Cannabis Act Unconstitutional For Medical Patients?

If the Cannabis Act is unconstitutional for medical patients, it wouldn’t be the first time something like this has happened. From its very beginnings, medical cannabis in Canada has had a rocky history. It began as a court order for reasonable access to medical cannabis. Which the government responded by allowing medical patients to grow their own or find a designated grower. There was one legal producer.

In the early 2010s, the Stephen Harper government attempted to end all personal growing. His government drafted new medical cannabis regulations. They included many more licensed producers but no option to grow yourself.

Patients sued and the result was the Allard ruling. Since Canadians have a Charter right to reasonable access to medical cannabis, the Allard ruling includes personal growing as part of this reasonable access clause. Patients can also designate someone to grow for them.

In response to the Allard ruling, the newly-minted Trudeau Government responded with the Access to Cannabis for Medical Purposes Act (ACMPR). These new regulations kept the licensed producers set up under the Harper era, but included the home-grows demanded by the courts.

On October 17, 2018, the Cannabis Act came into force. The Cannabis Act replaces the ACMPR since the government argues patients can still grow their own, have someone do it for them, or buy directly from a federally-licensed producer.

But this Alberta court ruling says THC limits violate Section 7 of the Charter. It makes the Cannabis Act unconstitutional.

Battle Lines Drawn for Next Battle?

Justice Graesser notes that since the ACMPR is no longer in effect, his judgment grants “declaratory relief.” Which means the court determines who is right and wrong. But the court won’t award damages or punishments.

This ruling does not change the current THC limits enforced by the Cannabis Act. Although it does leave the door open for a future Charter challenge. However, these kind of challenges are never cheap, especially when the defendant can use taxpayer money. As well, medical cannabis patients have been battling with the government for at least twenty years now. Many of them don’t have the energy to keep fighting.

Even if it means the Cannabis Act is unconstitutional.

Footnote(s)

https://www.canlii.org/en/ab/abqb/doc/2020/2020abqb385/2020abqb385.html