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

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]