Pubdate: Mon, 12 Mar 2012
Source: StarPhoenix, The (CN SN)
Copyright: 2012 The StarPhoenix
Contact: http://www.canada.com/saskatoonstarphoenix/letters.html
Website: http://www.canada.com/saskatoonstarphoenix/
Details: http://www.mapinc.org/media/400
Author: Louise Dickson

COURT TO DECIDE ON MAN'S POT CHALLENGE

VICTORIA - 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 two years ago after the manager of an apartment 
building complained to police about a strong, offensive smell.

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 only 
allowed to possess it in dried form.

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

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, said Tousaw.

"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."

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.

But Smith was not licensed, said Eccles.

"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 in our free and democratic 
society citizens are entitled to selectively abide by laws they find 
acceptable, while ignoring those that do not accord with their own 
world view, said Eccles.

Smith is asking the court to substitute his view on the medical 
marijuana access regulations for Parliament's, said the Eccles.

He advised Johnston not to usurp the role of the legislator or 
second-guess the wisdom of government actions.
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