SCC backs off from usual deferral of constitutional matters to Parliament

The Supreme Court of Canada today took a big step back from its tendency in recent years to defer to Parliament on constitutional matters.

In R. v. Smith — which has grabbed headlines for essentially legalizing baked medicinal marijuana products — the court also happened to strike down the appeal court’s suspension of a declaration of invalidity.

Whereas the British Columbia Court of Appeal would have given Parliament one year to broaden its Marihuana Medical Access Regulations to include baked goods, the Supreme Court offers an immediate remedy by striking down provisions that exclude baked marijuana.

The problem is the MMARs are “too narrow, or under-inclusive,” the decision states.

“We conclude that the appropriate remedy is a declaration that ss. 4 and 5 of the [Controlled Drugs and Substances Act] are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.

“To suspend the declaration would leave patients without lawful medical treatment and the law and law enforcement in limbo.”

Medical marijuana users may have the Criminal Lawyers Association to thank for the court’s immediate declaration of invalidity. The CLA intervened in the case, specifically challenging the appeal court’s determination that a suspended declaration was the appropriate remedy.

“[The courts have] done it seemingly on this theory of deference to Parliament,” says Nader Hasan, a litigator at Ruby Shiller Chan Hasan who represented the CLA before the SCC.

“There’s nothing wrong with wanting to defer to Parliament, but it’s problematic in criminal cases where you have the possibility of people being arrested, charged, prosecuted, and perhaps even jailed for a law that has already been declared unconstitutional.”

Hasan notes that the issue of suspended declarations was dealt with in Schachter in 1992, where then chief justice Antonio Lamer suggested the implications of preserving an unconstitutional law — even temporarily — demand that suspensions be used rarely.

In Schachter, Lamer lays out three exceptions where courts may be justified in suspending their declarations of invalidity:
(1) where an immediate declaration would pose a danger to the public;
(2) where an immediate declaration would threaten the rule of law; and
(3) where an immediate declaration would result in the deprivation of benefits from deserving persons without benefitting the individual whose rights have been violated.

While the appeal court may have put stock in Crown arguments that marijuana-infused pastries may appeal to children and therefore are a danger to public safety, Hasan thinks the suspended declaration had more to do with a trend towards deference to Parliament.

He notes that, since the early 1990s, the SCC has often suspended its declarations of constitutional invalidity, referring the matter back to Parliament — as it did when it struck down Canada’s prostitution laws in Canada v. Bedford. (Parliament has since passed new amendments that are also likely be deemed unconstitutional.)

“This is a court that has always been very sensitive to the important dialogical relationship between Parliament and the courts on constitutional matters,” says Hasan.

One indication of just how “sensitive” that relationship has become — particularly after controversial tit-for-tat public remarks — may be the fact that the SCC offered no detailed explanation or framework for when deference to Parliament is warranted.

Today’s decision, for instance, makes no mention of the  principles laid out by Lamer in 1992.

“The court may have been cautious in writing about suspended declarations of invalidity because it is no doubt aware that it has strayed from the Schachter criteria over the years,” says Hasan.

“I suspect the Supreme Court of Canada will want to proceed with caution and move incrementally when revisiting the concept.”

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