Has There Been Meaningful Dialogue Between the Courts and Parliament over Medical Marijuana?

Jim Young
May 27, 2009

Last week, the federal government responded to the Federal Court of Appeal decision in Canada (Attorney General) v Sfetkopoulos.[1] In 2008, the court declared unconstitutional the federal regulation that restricted each grower of medical marijuana to servicing only one client. The government responded by bringing in a new regulation to increase the number to two. Users of medical marijuana complain that the changes are insignificant, and predict that nominal amendments will simply force another court to make a more detailed ruling.[2] The government’s minimal response to a constitutional ruling casts new light on the theory of “Charter dialogue.”

Charter dialogue” describes how courts interact with elected representatives. Typically, when a law is struck down as unconstitutional, the enacting body will respond by amending the law to bring it within the bounds of the constitution.  A law may also be enacted with language that justifies any infringement of Charter rights. However, as Supreme Court of Canada Chief Justice McLachlin wrote in Sauvé v Canada, “the healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of ‘if at first you don’t succeed, try, try again.’”[3]

Further Reading
Ken Dickerson, “Top Court Says: Hands Off My (Medical) Stash!” Centre for Constitutional Studies (23 April 2009).


[1] 2008 FCA 328.
[2] “New medical marijuana rules too strict, users say”, National Post (26 May 2009).
[3] [2002] 3 S.C.R. 519 at para.17.
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