In R. v. Smith, the Supreme Court of Canada assessed the constitutionality of criminal prohibitions against the possession of marijuana in light of regulations that carved out a medical exception exclusively for dried marijuana. The Court held that the exception was too narrow and declared the criminal prohibitions of no force and effect to the extent that they prohibit a person with a medical authorization from possessing marijuana derivatives for medical purposes.
Smith was the Court’s first real foray into the lengthy saga of medical marijuana Charter litigation and, at first glance, its decision appears to reflect a banal application of established law to a factual finding at trial. The Ontario Court of Appeal had decided 15 years earlier in R. v. Parker that it violated section 7 of the Charter to deprive an individual, by means of a criminal sanction, of access to marijuana reasonably required for the treatment of a serious medical condition. The Supreme Court simply applied that principle to the factual finding that, in some cases, non-dried marijuana is reasonably required for the treatment of some medical conditions.
"R v Smith and Judicially Reviewing the Scope of Criminal Law under the Charter."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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