Pubdate: Sat, 29 Dec 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

POT BAKER IN CLEAR, BUT MORE BATTLES MAY LOOM

The head baker of the Cannabis Buyers' Club of Canada will be
acquitted of two outstanding drug offences - but medical-marijuana
fans shouldn't celebrate too quickly.

Lawyers say the Crown has left the door open to appeal a landmark
medical-marijuana ruling that allowed people authorized to use
marijuana to drink it in tea or bake it in brownies or cookies.

In April, Owen Smith won a constitutional challenge against Health
Canada's medical-marijuana laws. Smith had been charged in December
2009 with possession for the purpose of trafficking and unlawful
possession of marijuana 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 recovered substantial quantities
of cannabis-infused olive and grapeseed oil, as well as pot cookies,
destined for sale through the Cannabis Buyers' Club.

Smith's trial began Jan. 16 but moved quickly into a voir dire - a
trial within a trial - to allow 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 acknowledged essential
elements of the offences.

In the end, B.C. Supreme Court Justice Robert Johnston ruled that it's
unconstitutional to restrict medical-marijuana patients to using dried
pot. He gave Health Canada a year to respond to his ruling.

Although Tousaw asked Johnston to enter a stay of proceedings, arguing
that Smith stepped in to fill a legislative void, Johnston denied the
application. Smith was ordered to stand trial and jury selection was
scheduled for February.

On Friday, Tousaw said he had received a call from the Crown saying
the jury trial is no longer necessary.

"The trial has been rescheduled for the morning of Jan. 10," said
Tousaw.

"The Crown will not be calling evidence against Mr. Smith and they
will invite the judge to enter a not-guilty verdict."

Paul Pearson, co-chairman of the Canadian Bar Association's criminal
section in Victoria, said the decision probably means the Crown is
leaving the door open for an appeal.

"If the Crown withdrew the charges or stayed the charges themselves,
then they can't appeal it," said Pearson.

"This is the way for them to end it quickly and not waste time on this
trial before the court. They can get right to the question of the
constitutionality of the legislation. Whether they will or not is a
political decision."

When Smith's trial is over, the Public Prosecution Service has 30 days
to appeal.

This decision and the implications are much more broad-reaching than
Smith, Pearson said.

"They're looking across the country. They're looking at national
importance. They're looking at this decision in a very large
forest-for-the-trees way and Mr. Smith is only one tree."
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