Pubdate: Fri, 15 Aug 2014
Source: Regina Leader-Post (CN SN)
Copyright: 2014 The Leader-Post Ltd.
Contact: http://www.leaderpost.com/opinion/letters/letters-to-the-editor.html
Website: http://www.leaderpost.com/
Details: http://www.mapinc.org/media/361
Author: Ian Mulgrew
Page: B4
Referenced: R. v. Smith: http://mapinc.org/url/SFsYRnzS

MEDICAL POT RESTRICTIONS UNCONSTITUTIONAL

Options Other Than Smoking a Right, Court Says

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.

His lawyer Kirk Tousaw maintained the decision was a great victory 
but raised some questions - it is unclear, he noted, whether only 
patients can transform dried pot into another product or whether 
licensed producers also had that right.

Regardless, he explained, the government is unlikely to respond very 
quickly because there are other constitutional challenges before the 
Federal Court and the B.C. Supreme Court involving the newest medical 
marijuana regulations, which came into effect April 1.

The outcome of that litigation will be fundamental to determining how 
the law is re-written, Tousaw 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."I see nothing in this language that 
suggests that a medical user is limited to smoking dried marijuana, 
which is the core position of Mr. Smith," Justice Chiasson added.

The legislation passed muster in his opinion and he would have 
ordered a new trial.
- ---
MAP posted-by: Jay Bergstrom