Pubdate: Sat, 14 Apr 2012
Source: Victoria Times-Colonist (CN BC)
Copyright: 2012 Times Colonist
Author: Louise Dickson
Referenced: Supreme Court decision:


Restriction to Dried Marijuana Is Unconstitutional, Court Rules

People authorized to use medical marijuana can bake it in brownies 
and drink it in their tea, not just smoke it in dried form, the B.C. 
Supreme Court ruled Friday.

Justice Robert Johnston concluded that the restriction to dried 
marijuana in Health Canada's Marijuana Medical Access Regulations is 
unconstitutional because it breaches Section 7 of the Charter of 
Rights and Freedoms.

On April 27, Johnston will hear arguments on how and when the 
amendments to the regulations go into effect. The Crown will ask the 
judge to suspend implementation of his decision for one year, said 
federal prosecutor Peter Eccles.

"The amendments will be anything but simple. We need some time to 
ensure everyone who is complying with the program knows they are in 
compliance," Eccles said. "We're dealing with criminal consequences 
for medication."

The decision arises out of a constitutional challenge by Owen Smith, 
the head baker for the Cannabis Buyers' Club of Canada.

Smith, 29, was charged on Dec. 3, 2009, with possession for the 
purpose of trafficking and unlawful possession of marijuana, two 
years after the manager of the Chelsea apartments on View Street 
complained to police about a strong, offensive smell wafting through 
the building.

Police obtained a search warrant and found substantial quantities of 
cannabis-infused olive and grape seed oil and pot cookies. At the 
time Smith was charged, he was producing topical and edible cannabis 
based products to be sold through the club.

Smith's trial began in January with a voir dire - a trial within a 
trial - on an application challenging the restrictions that allow 
authorized users to possess medical marijuana in dried form only.

Defence lawyer Kirk Tousaw argued the laws were unconstitutional and 
arbitrary and did not further the government's interests in 
protecting the health and safety of the public. Instead, they forced 
the critically and chronically ill to predominantly smoke medical 
marijuana, which was potentially harmful.

"Even 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 told the court.

During the voir dire, patients testified they wanted the opportunity 
to drink tea infused with cannabis, eat pot cookies and apply topical 
oils infused with cannabis. These other modes of ingestion are more 
effective and less harmful than smoking or vaporizing dried 
marijuana, Tousaw said.

On Friday, Tousaw said he was grateful for Johnston's decision. "This 
will pave the way for permitted users to possess and produce this 
medical substance in forms other than dried," he said. "Permitted 
users can drink it in tea or bake it with edible oils." Although Owen 
Smith has won a constitutional challenge against Health Canada's 
medical marijuana laws, he'll be back in court April 25 to set a date 
for his trial by judge and jury.

The head baker for the Cannabis Buyers' Club of Canada still faces 
charges of possession for the purpose of trafficking and possession 
of marijuana.

His lawyer, Kirk Tousaw, had sought a judicial stay of proceedings 
for Smith. On Friday, B.C. Supreme Court Robert Johnston dismissed 
that application.

"In this case, I have found there has been a violation of liberty and 
security rights of the medical marijuana users protected by [the 
charter] as well as Mr. Smith's liberty right. However, I find that 
society's interests in having the charges against Mr. Smith tried on 
their merits outweighs the violation of Mr. Smith's liberty right, at 
least sufficiently to deny him the judicial stay he seeks," wrote Johnston.

Outside court, Smith appeared happy, unconcerned about the impending 
trial. Smith said he felt his heart flutter when Johnston ruled 
Health Canada's medical marijuana access regulations were "unconstitutional."

"I'm really proud of all the work we've done so far," said Smith. 
"Lots of patients and members of the club have been very supportive. 
We're going to keep going and do just as good a job in the next round 
in front of a jury."

Tousaw hopes to persuade a jury to acquit Smith on the basis of 
medical necessity. "In other words, because these products were 
unlawful at the time, it was necessary for him to do it to alleviate 
the suffering of chronically ill Canadians," Tousaw said.

The Crown has no reason not to proceed to trial, said federal 
prosecutor Peter Eccles."as the judgment points out, the accused and 
[Cannabis Buyers' Club of Canada proprietor] Ted Smith were selling 
to the public. They were not simply providing product to licence 
holders," Eccles said.

Admissions of fact have been entered into the court record, in which 
Owen Smith admits the essential elements of the offences - that he 
was separating THC from cannabis, baking it into cookies and putting 
THC oil in capsules.

Ted Smith, no relation to the accused, said he's not intimidated by 
the prospect of a jury trial.

"I'm confident no jury in this country will convict Owen for making 
cookies and skin products," Smith said. "It will give us another 
opportunity to change public opinion. Today, we changed the law."
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