Human Rights Litigation and the Medicalization of Cannabis in Canada, ca. 2000–Present

Abstract

Cannabis was legalized for recreational purposes in Canada on October 17, 2018. The push to overturn nearly a century of prohibition seemingly took place overnight after Justin Trudeau promised legalization as part of his 2015 federal election platform. Canadians were already familiar with debates for and against a policy change. Starting in the early 2000s, cannabis advocates challenged its criminalization in Canadian courts from a health and human rights perspective. Part of this strategy included proving cannabis’s relative harmlessness from both social and scientific points of view, something widely accepted by the courts. Nonetheless, it took several legal decisions to create and open a market for medical cannabis. Its consequent availability, however limited, introduced Canadians to its medical value. Recreational cannabis was a separate, yet entwined, issue. The Canadian government refused to allow cannabis use for anything other than therapeutic purposes. Courts were not as receptive to arguments related to liberty and autonomy without a healthcare angle and would not force the federal government to change its prohibitionist tack. This article tracks how litigants wore away at prohibition by articulating their claims in the language of constitutional rights and freedoms. It then evaluates the courtroom adjudication of science and medicine in light of the legal interpretation of John Stuart Mill’s “harm principle.” These discourses were key in framing how professionals and the public came to know cannabis as a medicine to which they had a right to use and paved the way for its legalization and regulation for recreational purposes in 2018.