The Smoke-Free Ontario Act, 2017 is unconstitutional in that it places unreasonable restrictions on where medical cannabis patients can smoke or vape their medicine. If a medical cannabis patient is far from their residence there will be no safe places where they can consume their medicine. Similarly, if a medical cannabis patient cannot smoke or vape at their residence because a family member or roommate does not permit it then there will be no safe place that they can consume their medicine. Medical cannabis patients will be forced to find an outdoor location that is not one of many prohibited outdoor locations.
In practice medical cannabis patients will be driven to back-alleys and urban common areas that are not safe places to consume medicine. They will face robbery risks, anti-social interactions, and public stigma. Studies have found that these areas are more likely to expose young people to cannabis and encourage the co-consumption of cannabis with alcohol and other drugs.[1] Further, this will have the effect of encouraging open drug scenes which are widely viewed as a public nuisance and are not easy to shut down once created. This will be bad, not just for medical cannabis patients, but for all of society.
In determining constitutionality of the Smoke-Free Ontario Act, 2017, the test to be applied is whether medically qualified patients are getting reasonable access to medical cannabis.[2] In 2015 the Supreme Court of Canada in R. v. Smith confirmed the principle first expressed in R. v. Parker that laws that prevent reasonable access are invalid and unenforceable.[3]
The Smoke-Free Ontario Act, 2017 prevents some medical cannabis patients from obtaining reasonable access to cannabis by effectively prohibiting the consumption of cannabis. Liberty and security person rights are being undermined in a manner that is not in accordance with the principles of fundamental justice.
The right to liberty is breached by laws that limit decisions of fundamental personal importance. The decision by a patient suffering from a serious health condition to access medical cannabis to alleviate their symptoms is a decision of fundamental personal importance.[4] The right to security of the person is undermined by a law that interferes with a person’s choices concerning their physical and psychological integrity.[5]
The threshold breaches of section 7 must then be considered in the context of the principles of fundamental justice. Arbitrary laws are not in accordance with the principles of fundamental justice. A law is arbitrary if it imposes limits on liberty or security of the person that have no connection to that law’s purpose.[6] The law’s purpose is health and safety in yet the law has the effect of undermining health and safety. Undermining the health and safety of medical cannabis patients by forcing them to medicate in public spaces is arbitrary and a breach of s. 7 of the Charter.
If the Smoke-Free Ontario Act, 2017 breaches s. 7 of the Charter the court would then consider whether the law could be saved by section 1 of the Charter. Under section 1, the legislative objectives must be pressing and substantial to warrant overriding a constitutional right and the means chosen to attain those objectives must be proportional to the ends, in that:
(a) the limiting measures must be rationally connected to the legislative objective;
(b) the limiting measures must impair the right as little as possible; and
(c) there must a proportionality between the deleterious effects of the offending legislation and the legislative objective.[7]
In contrast to section 7 of the Charter, section 1 looks at whether the negative impact on the rights of individuals is proportionate to the overarching public interest, not just the law’s purpose. In this case, the law’s purpose and the overarching public interest are the same, health and safety. As such, the law would fail the section 1 test for the same reason it would fail the section 7 arbitrariness test. If the law is not rationally connected to its objective then the limiting measures are not rationally connected to that objective. Moreover, the law negatively impacts the health and safety of all of society, not just medical cannabis patients. The law must fail the proportionality test under section 1.[8]
It should be noted that section 2(b) of the Charter provides that everyone has the right to freedom of thought, belief, opinion, and expression. The freedom protects both listeners and speakers. Vapour lounges provide economic, medical, and cultural information about cannabis to a physically and economically vulnerable sector of society. They provide a space in which cannabis can be discussed openly, safely and honestly. Cannabis consumers have long been stigmatized by the almost century old prohibition on cannabis. Vapour lounges create an atmosphere fostering communication that is vital for medical cannabis patients and all cannabis consumers.
The Ontario government can avoid such challenges by providing medical cannabis patients a place where they can smoke, vape, and communicate with like-minded people all the while the doing the broader public a service by keeping cannabis away from kids, keeping other drugs away from cannabis consumers, and keeping open drug scenes out of our cities and towns.
[1] Waal H., Clausen T., Gjersing L., Gossop M.. Open Drug Scenes: responses of five European cities. BMC Public Health 2014; 14:853.
[2] Allard v. Canada, 2016 F.C. 236 at paras. 52, 54 and 184; Sfetkopoulos v. The Queen 2008 FC 33 at paras. 18-19
[3] R. v. Smith, [2015] 2 S.C.R. 602; R. v. Parker [2000] O.J. No. 2787 (Ont. C.A.).
[4] Allard, supra note 1, at para 189-194; Smith, supra note 2, at para 18; Parker, supra, note 2, at para 92.
[5] Allard, supra note 1, at para 197-199; Smith, supra note 2, at para 18; Parker, supra, note 2, at paras 92-97, 106 and 110.
[6] Bedford v. Canada [2013] 3 S.C.R. 1101 at paras 107, 111-112, and 119-120.
[7] Ibid at paras 73-74.
[8] Smith, supra note 2, at para 29; Bedford, supra note 9, at para 125.