Pubdate: Sun, 11 Mar 2012
Source: Victoria Times-Colonist (CN BC)
Copyright: 2012 Times Colonist
Contact: http://www2.canada.com/victoriatimescolonist/letters.html
Website: http://www.timescolonist.com/
Details: http://www.mapinc.org/media/481
Author: Louise Dickson

COURT MULLS CHALLENGE TO POT LAWS

Victoria man filling legislative void by selling cookies, lawyer
argues

On March 28, B.C. Supreme Court Justice Robert Johnston will set a
date for his decision on a Victoria man's constitutional challenge to
Health Canada's medical-marijuana access regulations.

Owen Smith, who was the head baker for the Cannabis Buyers' Club of
Canada, 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 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
grapeseed oil, as well as pot cookies, destined for sale through the
club.

Smith's trial began Jan. 16, but 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.

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.

Tousaw asked Johnston to enter a stay of proceedings, arguing that
Smith stepped in to fill a legislative void. Although the access
regulations claim to provide patients with the option to ingest
cannabis in products such as the cookies and oils made by Smith,
people authorized to use marijuana for medical reasons are allowed
only to possess it in dried form.

"This is arbitrary, irrational and works to harm health rather than
improve it," Tousaw said.

The use of oral and topical cannabis-based medicines by the 3,700
critically and chronically ill members of the Cannabis Buyers' Club of
Canada is reasonable, Tousaw said.

"The government's response to previous rulings in this area is in bad
faith, and prosecuting Mr. Smith for doing what is necessary and what
the government has failed to do is an abuse of process."

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

Federal prosecutor Peter Eccles reminded the court that the
possession, production and trafficking of marijuana is illegal in
Canada. The courts and Parliament have recognized that some people
have a legitimate need to use marijuana for medical purposes and they
can obtain licences to possess, produce and provide marijuana for
medical purposes.

Smith was not licensed, Eccles said.

"What he was doing was entirely covered by the criminal prohibitions
against the possession and trafficking of marijuana."

The case raises the question of whether citizens are entitled to
selectively abide by laws they find acceptable, while ignoring those
that do not accord with their own world view, Eccles said.

The government, under the authority of the Controlled Drugs and
Substances Act and the Food and Drug Act, has jurisdiction over the
control of drugs to protect the health and safety of all Canadians,
Eccles said. Dried cannabis is not an approved drug.

"Mr. Smith invites this court to permit the manufacture and sale of
illegal cannabis products based on anecdotal evidence, without any
sound science in support," Eccles said.

Smith wants the court to carve out a category of illegal substances
where regulations for therapeutic products would not apply.

"This type of broad exception would be contrary to law and would fail
to protect the health and safety of Canadians," Eccles said.

A number of other courts, including the B.C. Supreme Court and the
Court of Appeal, have concluded that the regulatory amendments made by
the government ensure reasonable access to a lawful supply of
marijuana, Eccles said.
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