Pubdate: Fri, 20 Mar 2015
Source: Ottawa Citizen (CN ON)
Copyright: 2015 Postmedia Network Inc.
Author: Ian MacLeod
Page: A13


To Decide Whether It Is Legal to Eat Foods Laced With Prescribed Cannabis

Marijuana has been used medicinally and recreationally for thousands 
of years, including all of these topical and edible substances.

Canada's high court contemplates Friday whether it is a 
constitutional right to munch cookies, brownies and oils laced with 
medical marijuana.

Federal regulations restrict authorized users of physician-prescribed 
cannabis to consuming only dried marijuana plants. Brewing pot in 
tea, baking it into a brownie or any form of consumption other than 
smoking the dried plant buds can trigger criminal trafficking and 
narcotics possession charges under the Controlled Drugs and Substances Act.

The question before the Supreme Court of Canada, in its first foray 
into the medical marijuana debate, is whether the Health Canada 
regulation violated medical marijuana users' constitutional right to 
life, liberty and safety.

That's what Owen Smith contends. Police in 2009 found more than 200 
pot cookies and cannabis-infused olive oil and grapeseed oil in his 
Victoria apartment. The former head baker for the Cannabis Buyers 
Club of Canada was charged with possession for the purpose of 
trafficking and unlawful possession of marijuana.

At Smith's 2012 trial, lawyer Kirk Tousaw argued the restrictive 
regulation was unconstitutional and arbitrary and did not further the 
government's interest in protecting public health and safety. 
Instead, it forces the critically and chronically ill to smoke 
medical marijuana, which is potentially harmful, he said.

Even though Smith is not a medical marijuana user, a judge agreed and 
found that criminalizing a patient's choice of smoking or eating his 
or her medication is an unwarranted infringement of security of the 
person rights guaranteed under Section 7 of the Charter.

Smith was acquitted of the drug offences. The Crown appealed and 
lost. The majority decision of the British Columbia Court of Appeal 
ruled the government had no basis to assert that transforming dried 
marijuana into tea or baking oil put individuals at greater risk. It 
gave the government until August to draft new regulations to allow 
medicinal marijuana users to use products made from cannabis extract. 
That can include creams, salves, oils, brownies, cakes, cookies and 
chocolate bars.

The Public Prosecution Service of Canada is now asking the Supreme 
Court to strike down that judgment, rendered last August. It also 
contends that since Smith is not a medical marijuana user, he should 
have no standing to challenge the constitutional validity of the regulation.

The prosecution service declined to comment for this story. The 
government does not endorse the use of marijuana, but the courts have 
required reasonable access to a legal source of marijuana when 
authorized by a physician. The government has consistently argued 
that its medical marijuana regulations are intended to protect 
Canadians' health and safety.

What's more, the Crown's case factum argues the Charter does not 
confer a right to obtain or produce drugs, "based on a subjective 
belief in their therapeutic value, irrespective of medical need or 
lawfully available alternative treatments."

"Even if liberty or security of the person interests were engaged, a 
regulatory scheme which only permits access to controlled substances 
that can be shown to be safe and therapeutically effective is not 
arbitrary, grossly disproportionate, or otherwise inconsistent with 
the principles of fundamental justice."

There's concern, too, of pot-laced cookies and other illicit treats 
being diverted to the black market, and of the difficulties police 
would encounter trying to determine whether a batch of cookies or 
brownies contained more dope than the patient was authorized to possess.

Tousaw, a longtime legal advocate for marijuana legalization, sees it 
differently. Patients who find more effective and potentially less 
harmful forms of cannabis have a right to consume it the way they 
please, he said in an interview Thursday.

"Marijuana has been used medicinally and recreationally for thousands 
of years, including all of these topical and edible substances. And 
nobody's dying, the sky hasn't fallen. I think it's probably safe to 
call it the largest open clinical trial in the history of humankind."

If the high court sides with him, it could be a pyrrhic victory. The 
offending regulation was contained in the Medical Marijuana Access 
Regulations (MMAR), an annex to the Controlled Drugs and Substances 
Act. The government repealed the MMAR last year and replaced it with 
the Marijuana for Medical Purposes Regulations (MMPR), which continue 
to limit use to dried plant buds.

The Smith case, and therefore the basic issue before the Supreme 
Court, is based on the defunct MMAR. If the court simply rules that 
the regulation was unconstitutional, it's questionable whether that 
also would apply to the new MMPR.

Instead, Tousaw wants the court to craft a more effective remedy by 
ordering an exemption for medical marijuana users be incorporated 
into the Controlled Drugs and Substances Act.

"At that point we at least have taken patients off the front lines 
and they are no longer engaging in criminal conduct if they bake 
cookies for themselves to eat out of their lawfully possessed marijuana."

Medical marijuana would then fall under natural health production 
regulations, he said. And "if the government wants to regulate in 
some manner commercial production and sale and marketing, it's 
perfectly entitled to do so."
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MAP posted-by: Jay Bergstrom