Denial of medical marijuana funding not a breach of charter rights: Saskatchewan Court of Appeal

The Canadian Charter of Rights and Freedoms does not obligate government actors to take any positive action for funding a party’s chosen form of healthcare, the Saskatchewan Court of Appeal has ruled.

In Yashcheshen v. Saskatchewan (Ministry of Health), 2022 SKCA 68, the appellant expressed that medical marijuana would be the most effective treatment for her many medical conditions, including Crohn’s disease, chronic pain, irritable bowel syndrome, and drug hypersensitivity syndrome. Unable to independently afford cannabis-based products, she sought government assistance.

The Saskatchewan Ministry of Health, denying the appellant’s request, reasoned that medical marijuana was not covered by any provincial or territorial drug plan, was not an approved therapeutic product, and was not assessed by Health Canada for safety, efficacy, and quality as required by the federal Food and Drugs Act and its regulations.

As for the Ministry of Social Services, it approved monthly benefits of $784 under the Social Assistance Program (SAP). However, the appellant complained that the Saskatchewan Assured Income for Disability (SAID) program, not the SAP, should cover her.

The Centre Regional Appeal Committee, denying the appellant’s funding request, found that the social services ministry was unable to fund drug-related benefits and that the health ministry governed these benefits. The Social Services Appeal Board (SSAB) denied her appeal based on lack of jurisdiction.

The appellant brought a judicial review application relating to the health and social services ministries’ decisions. She claimed that the government’s rejection of her requests breached s. 7 of the charter. She asked for reimbursement for the amounts she paid for cannabis products.

The chambers judge dismissed her application. The Saskatchewan Court of Appeal allowed her appeal with respect to the SSAB decision and remitted that matter for a new hearing, but dismissed the rest of the appeal.

The appellate court disagreed with the chambers judge’s ruling upholding the social services ministry’s decision. Because the relevant procedural requirements of the SAID Regulations were mandatory, the SSAB denied the appellant procedural fairness and failed to provide her with an opportunity to argue certain factual and jurisdictional issues, the appellate court held.

As for the health ministry’s decision, which reflected its views on the safety, efficacy, and quality of cannabis products, the appellate court found that the chambers judge properly upheld it. The health ministry’s discretionary decision was reasonable pursuant to Canada (Ministry of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

Neither the chambers judge nor the appellate court was entitled to rule upon the correctness of the health ministry’s decision to reject the funding application under the exception drug status (EDS) program, the appellate court said.

Next, the appellate court determined that the Saskatchewan government did not violate the appellant’s s. 7 charter rights. The appellate court agreed with the chambers judge’s finding that this claim failed at the first stage of the analysis.

Lastly, the appellate court refused to decide the appellant’s argument alleging a breach of her s. 15 charter rights, which she raised for the first time on appeal. Since her judicial review application did not submit this issue, the respondents could not file any opposing evidence and the chambers judge could not provide any analysis and insight, the appellate court said.