Pubdate: Tue, 17 Jan 2012
Source: Victoria Times-Colonist (CN BC)
Copyright: 2012 Times Colonist
Page: A3
Author: Louise Dickson


Ex-Baker For Cannabis Buyers' Club Launches Constitutional Challenge

A Victoria man who was the head baker for the Cannabis Buyers' Club 
of Canada has started a constitutional challenge against Health 
Canada's medical marijuana access regulations.

Owen Edward Smith, 29, was charged on Dec. 3, 2009, with possession 
for the purpose of trafficking THC, one of the active ingredients in 
marijuana. He is also charged with unlawful possession of marijuana.

Smith was charged two years ago after the manager of the Chelsea 
apartments on View Street complained to police about a strong, 
offensive smell wafting through the building. Police arrested Smith 
and obtained a search warrant.

They discovered the suite was being used as a bakery. Officers 
recovered substantial quantities of cannabis-infused olive and grape 
seed oil, as well as pot cookies, destined for sale through the club.

Smith's trial began Monday in B.C. Supreme Court, but the case could 
be thrown out before a jury hears it. Although Smith pleaded not 
guilty to the charges, admissions of fact were entered into the court 
record, in which he basically admits the essential elements of the offences.

However, the trial moved quickly into a voir dire "" a trial within a 
trial "" to allow Smith's defence lawyer, Kirk Tousaw, to challenge 
the validity of the Controlled Drugs and Substances Act regarding marijuana.

Tousaw asked Justice Robert Johnston to enter a stay of proceedings, 
arguing that marijuana is a reasonable choice for the patients and 
members of the Cannabis Buyers' Club of Canada.

Tousaw also will argue that decisions of the Canadian government, 
following a number of challenges over the past 10 years, have been in 
contempt of the courts.

"oeThe courts have said many times access to marijuana is a right 
guaranteed by the Charter [of Rights and Freedoms] and that the 
government ought to expand and open up the restrictions in its 
current regime,"  Tousaw told media outside the Victoria courthouse.

"oeThe government's response to that has been woefully inadequate."

Under the charter, Health Canada's medical marijuana program is 
unduly restrictive and constitutionally flawed, said Tousaw. People 
authorized to use marijuana for medical reasons are allowed to 
possess it only in dried form.

"oeEven an authorized person, under Health Canada's regime, is unable 
to produce cannabis butter to make cookies to eat before bed, or when 
they get up in the morning to deal with chronic pain,"  he said.

The defence lawyer said he hopes the trial will "oemake the 
government come to its senses"  and put in place a sensible, 
easy-to-access medical-marijuana program so people can use marijuana 
and all its derivatives without fear of criminal sanctions.

During the voir dire, federal prosecutor Peter Eccles presented the 
bare bones of the Crown's case through the admissions, which indicate 
the apartment was being used as a commercial bakery.

Victoria police exhibit officer Const. Colin Brewster described 
batches of baked pot cookies, peanut butter jars full of an oily 
substance, empty gel capsules and flattened cardboard boxes.

Ted Smith, the proprietor of the Cannabis Buyers' Club of Canada, who 
is no relation to the accused, testified that Owen Smith made about 
28 edible and topical marijuana-based products for members of the club.

He also described the history of the club, which serves the need of 
3,700 critically and chronically ill Canadians who use cannabis to 
relieve pain from their debilitating conditions.

In an unusual move, Johnston did not impose a publication ban on the 
voir dire because of the admissions.
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MAP posted-by: Keith Brilhart