Pubdate: Sat, 28 Apr 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

MEDICAL POT RULING SUSPENDED FOR A YEAR

Producers of Cannabis-Infused Oils, Teas and Cookies Left in Legal Haze

A B.C. Supreme Court judge has given Health Canada one year to 
respond to his ruling that it is unconstitutional to restrict medical 
marijuana patients to just using dried pot.

Justice Robert Johnston also ruled on Friday that the suspension of 
his declaration for a year would not affect people authorized to use 
medical marijuana under Health Canada's Marihuana Medical Access Regulations.

On April 12, Johnston ruled that people authorized to use medical 
marijuana could make cannabis-infused oils, drink it in tea or bake 
it in brownies and cookies, in addition to smoking it.

Health Canada applied to the court asking for a year to respond to 
the ruling. "While it may seen like a simple ruling, it has anything 
but simple impacts, and the government needs some time to figure out 
how to most appropriately respond," said federal prosecutor Peter Eccles.

Designated producers are in the same legal position they were in 
prior to the ruling, Eccles said, and are not allowed to make 
secondary products. "Sometime in the next year, this will get 
resolved in a legislative response," he said.

The decision arises out of a constitutional challenge by Owen Smith, 
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 in 
Victoria 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 grapeseed oils, 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 is 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.

On Friday, Tousaw said he had successfully defended the rights of 
patients to use cannabis derivative products. "At least in B.C., 
those patients will be protected from criminal charges and 
deprivation of their liberty," he said.

"We were not successful in extending that protection, at least for 
the next 12 months, to designated producers - those who are producing 
cannabis for the medical marijuana users."

Tousaw said he hoped Health Canada would take the decision and use it 
to craft sensible reforms that are not largely based on law 
enforcement concerns.

Smith has been ordered to stand trial. Jury selection is scheduled 
for Feb. 4, 2013. "My hope is the effect of the judge's ruling, 
coupled with our medical-necessity defence, will convince a jury what 
Mr. Smith was doing was important and necessary and he ought not to 
be convicted of a crime for helping sick people," Tousaw said.
- ---
MAP posted-by: Jay Bergstrom