On March 3, 2005, Michelle Kubby began another legal battle against cannabis prohibition. Michelle, a long time medical cannabis user, filed suit against the Solicitor General of Canada seeking a declaration that marijuana prohibition was invalid. This case marks the latest chapter in a long saga of judicial activism dating back to the 2000 decision of the Ontario Court of Appeal in Terry Parker’s case.
The Legal Background
Parker established that the Charter requires some level of access to medical cannabis. Because, at the time, there was no medical exception to marijuana prohibition, the Ontario Court of Appeal decided to strike the entire prohibition ? but gave Parliament one year to fix the problem.
Parliament’s response was to enact the Medical Marijuana Access Regulations (MMAR), which set out a cumbersome and detailed procedure by which some patients can obtain legal licenses to grow marijuana. The MMAR had serious problems and these became the subject of another lawsuit. This case, Hitzig, was also decided by the Ontario Court of Appeal.
In Hitzig, the Court decided that the MMAR were not good enough and, therefore, were unconstitutional. But instead of deciding that the law was dead, the Hitzig court ?fixed? the MMAR by changing two sections. By doing so, the Court reasoned that the MMAR were now constitutional and that, as a result, Parker’s declaration that the law was dead had no further effect. Cannabis became illegal again in Canada.
Kubby Attacks Prohibition
Michelle Kubby made several arguments. She claimed that Parker established that medical users had a protected right to choose their medicine. Because of this, Michelle reasoned, she should not have to jump through Health Canada’s hoops ? especially when she had already tried and been rebuffed.
More than that, Kubby argued that the Hitzig Court did not have the authority to revive a dead law. And, even if they did, Kubby claimed that Parker required Parliament to change the law ? not simply to have Health Canada enact regulations that, themselves, were not even constitutionally adequate. Since Parliament dropped the ball, Kubby concluded that the entire cannabis prohibition was dead.
The Crown Sidesteps the Substantive Issues
On the other side, the Crown ? represented by Crown Counsel Maria Molloy ? claimed that Michelle Kubby had not submitted enough evidence. The Crown argued that, in order to allow the Court to rule on a Charter case, Kubby needed to put in evidence directly from her physician and specialists. Because she hadn’t done so, her petition should be denied. The Crown did not directly address any of Kubby’s other arguments.
Disappointed But Determined
Michelle Kubby did an admirable job presenting her case, as the Judge pointed out when beginning to render his decision. Unfortunately, His Lordship agreed with the Crown. He felt that he could not rule in Kubby’s favor because not enough evidence was presented. He also implied (though did not decide conclusively) that the MMAR were constitutionally valid.
After the decision, Michelle was upbeat. She is determined not to give up in her fight to obtain legal recognition of her ? and everyone else’s ? right to medical cannabis. While the decision today is obviously disappointing, there will be many more opportunities ahead for victory.