The Canadian courts have repeatedly struck down legislation restricting usage of medicinal marijuana as unconstitutional, as an infringement of the right to liberty and security of the person.1 Liberty, in this context has been interpreted in two ways.2 The first is founded on a conventional understanding of the term “liberty” in that violations of marijuana usage prohibitions may trigger criminal prosecution. In the event of a conviction, there is a risk of imprisonment that clearly leads to a deprivation of liberty. The broader interpretation of liberty is the right to make decisions of personal importance. This right is endangered when the state uses the threat of criminal prosecution to restrict a person’s choices—in this context, the choice of medical treatment.
The courts have generally agreed that within the right to security of the person, there must be protection from state intrusion into personal decisions made by an individual whose life or health is in danger. In a seminal case in Canadian human rights law, R v. Morgentaler,3 the Court concluded that:
"Security of the person" must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. If an Act of Parliament forces a person whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, the right to security of the person has been violated.
It is within this framework that the courts have considered the various legislative regimes for the sale of marijuana for medicinal purposes.
Read Part 3 of our five-part Marijuana Regulation in Canada series, “Legislative History of Medical Marijuana in Canada.”
1 Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
2 R v Parker,  OJ No. 2787, 188 DLR (4th) 385 [Parker].
3  3 SCR 463, 125 NSR (2d) 81 [Morgentaler].