Court urged to snuff out medical pot access rules
Jan 17 2012
Ted Smith, left, Owen Smith and lawyer Kirk Tousaw share thoughts outside the Victoria courthouse Monday.Photograph by: Darren Stone, timescolonist.com
A Victoria man who was the head baker for the Cannabis Buyers' Club of Canada has started a constitutional challenge against Health Canada's medical-marijuana access regulations.
Owen Edward Smith, 29, was charged on Dec. 3, 2009, with possession for the purpose of trafficking THC, one of the active ingredients in marijuana. He is also charged with unlawful possession of marijuana.
Smith was charged two years ago after the manager of the Chelsea apartments on View Street complained to police about a strong, offensive smell wafting through the building. Police arrested Smith and obtained a search warrant.
They discovered the suite was being used as a bakery. Officers recovered substantial quantities of cannabis-infused olive and grapeseed oil, as well as pot cookies, destined for sale through the club.
Smith's trial began Monday in B.C. Supreme Court, but the case could be thrown out before a jury hears it. Although Smith pleaded not guilty to the charges, admissions of fact were entered into the court record, in which he basically admits the essential elements of the offences.
However, the trial moved quickly into a voir dire — a trial within a trial — to allow Smith's defence lawyer, Kirk Tousaw, to challenge the validity of the Controlled Drugs and Substances Act regarding marijuana.
Tousaw asked Justice Robert Johnston to enter a stay of proceedings, arguing that marijuana is a reasonable choice for the patients and members of the Cannabis Buyers' Club of Canada.
Tousaw also will argue that decisions of the Canadian government, following a number of challenges over the past 10 years, have been in contempt of the courts.
"The courts have said many times access to marijuana is a right guaranteed by the Charter [of Rights and Freedoms] and that the government ought to expand and open up the restrictions in its current regime," Tousaw told media outside the Victoria courthouse.
"The government's response to that has been woefully inadequate."
Under the charter, Health Canada's medical-marijuana program is unduly restrictive and constitutionally flawed, said Tousaw. People authorized to use marijuana for medical reasons are allowed to possess it only in dried form.
"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 said.
The defence lawyer said he hopes the trial will "make the government come to its senses" and put in place a sensible, easy-to-access medical-marijuana program so people can use marijuana and all its derivatives without fear of criminal sanctions.
During the voir dire, federal prosecutor Peter Eccles presented the bare bones of the Crown's case through the admissions, which indicate the apartment was being used as a commercial bakery.
Victoria police exhibit officer Const. Colin Brewster described batches of baked pot cookies, peanut butter jars full of an oily substance, empty gel capsules and flattened cardboard boxes.
Ted Smith, the proprietor of the Cannabis Buyers' Club of Canada, who is no relation to the accused, testified that Owen Smith made about 28 edible and topical marijuana-based products for members of the club.
He also described the history of the club, which serves the need of 3,700 critically and chronically ill Canadians who use cannabis to relieve pain from their debilitating conditions.
In an unusual move, Johnston did not impose a publication ban on the voir dire because of the admissions.
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