Pubdate: Fri, 15 Aug 2014
Source: Edmonton Journal (CN AB)
Copyright: 2014 The Edmonton Journal
Contact: 
http://www.edmontonjournal.com/opinion/letters/letters-to-the-editor.html
Website: http://www.edmontonjournal.com/
Details: http://www.mapinc.org/media/134
Author: Ian Mulgrew
Page: A13
Referenced: R. v. Smith: http://mapinc.org/url/SFsYRnzS

RULING BACKS MEDICINAL POT IN EDIBLE FORM

B.C. Judges Toss Smoke-Only Restriction

VANCOUVER - B.C.'s highest court has ruled there is a constitutional 
right to tasty pot cookies and other marijuana products such as 
infused oils, balms and lotions.

In a 2-1 judgment, the provincial Court of Appeal said the country's 
medical marijuana legislation is unconstitutional because it 
restricts patients to possessing only the dried plant and to 
consuming it via smoking.

The top bench suspended its ruling to give Ottawa a year to amend the 
law to allow patients access to edibles and derivatives - such as 
creams, salves, brownies, cakes, cookies and chocolate bars.

"In my opinion, decisions concerning how one manages serious health 
problems go to the core of what it means to live with dignity, 
independence and autonomy as contemplated" in other Supreme Court of 
Canada cases, wrote Judge Nicole Garson, supported by colleague Risa Levine.

"Where the state interferes with an individual's capacity to make 
decisions concerning the management of those health problems by 
threat of criminal sanction, the state is depriving that individual 
of the power to make fundamental personal choices and the liberty 
interest is engaged."

The majority dismissed the government's appeal of a Victoria case in 
which a compassion club baker, Owen Smith, was found not guilty after 
being caught with 200-plus cookies, a supply of cannabis-infused 
cooking oils and some dried dope in his apartment.

In 2012, B.C. Supreme Court Judge Robert Johnston acquitted Smith 
after ruling that permitting dried cannabis alone was arbitrary and 
did little to further a legitimate state interest.

The justice found criminalizing a patient's choice of smoking or 
eating his or her medicine was an unwarranted infringement of 
security of the person rights guaranteed under Section 7 of the Constitution.

"I would vary the trial judge's order to hold that the limitation ... 
is of no force and effect under s. 52 of the Charter to the extent 
that a person who has been granted an (Authorization To Possess) is 
permitted to possess only dried marijuana," Garson said. "Of course, 
as the Regulations rely on the 'physician as gatekeeper,' I see no 
reason why an ... applicant would not be required to have their 
physician indicate the need for edible or topical cannabis in order 
to secure an exemption."

The court heard that marijuana's active ingredients had a 
longer-lasting effect if they were ingested rather than inhaled, 
bringing greater benefit to those who used it to treat conditions 
such as chronic pain and glaucoma.

Smoking achieves a quicker, but less-lasting benefit.

"I'm very happy," Smith said Thursday.

He no longer bakes for the compassion club, he added, but is working 
on a feature-length play about his experiences.

"I'm also blogging to keep people up to date about extracts and 
educating people about marijuana and the options available to 
patients," Smith said.

In his dissent, Judge Ed Chiasson said Smith had no right to 
challenge the legislation since he wasn't a licensed medical patient 
or producer. "It has nothing to do with him," Justice Chiasson insisted.

He also offered the novel view that the regulations did not restrict 
patients' access to derivatives.
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MAP posted-by: Jay Bergstrom