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B.C. court mulls challenge to medical marijuana laws

Mar 11 2012

On March 28, B.C. Supreme Court Justice Robert Johnston will set a date for his decision on a Victoria man's constitutional challenge to Health Canada's medical marijuana access regulations.

Owen Smith, who was the head baker for the Cannabis Buyers' Club of Canada, 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 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 Jan. 16, but 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.

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.

Tousaw asked Johnston to enter a stay of proceedings, arguing that Smith stepped in to fill a legislative void. Although the access regulations claim to provide patients with the option to ingest cannabis in products such as the cookies and oils made by Smith, people authorized to use marijuana for medical reasons are allowed only to possess it in dried form.

"This is arbitrary, irrational and works to harm health rather than improve it," Tousaw said.

The use of oral and topical cannabis-based medicines by the 3,700 critically and chronically ill members of the Cannabis Buyers' Club of Canada is reasonable, Tousaw said.

"The government's response to previous rulings in this area is in bad faith, and prosecuting Mr. Smith for doing what is necessary and what the government has failed to do is an abuse of process."

The defence lawyer hopes the trial will "make the government come to its sense" and put in place a sensible, easy to access program so people can use marijuana and all its derivatives without fear of criminal sanctions.

Federal prosecutor Peter Eccles reminded the court that the possession, production and trafficking of marijuana is illegal in Canada. The courts and Parliament have recognized that some people have a legitimate need to use marijuana for medical purposes and they can obtain licences to possess, produce and provide marijuana for medical purposes.

Smith was not licensed, Eccles said.

"What he was doing was entirely covered by the criminal prohibitions against the possession and trafficking of marijuana."

The case raises the question of whether citizens are entitled to selectively abide by laws they find acceptable, while ignoring those that do not accord with their own world view, Eccles said.

The government, under the authority of the Controlled Drugs and Substances Act and the Food and Drug Act, has jurisdiction over the control of drugs to protect the health and safety of all Canadians, Eccles said. Dried cannabis is not an approved drug.

"Mr. Smith invites this court to permit the manufacture and sale of illegal cannabis products based on anecdotal evidence, without any sound science in support," Eccles said.

Smith wants the court to carve out a category of illegal substances where regulations for therapeutic products would not apply.

"This type of broad exception would be contrary to law and would fail to protect the health and safety of Canadians," Eccles said.

A number of other courts, including the B.C. Supreme Court and the Court of Appeal, have concluded that the regulatory amendments made by the government ensure reasonable access to a lawful supply of marijuana, Eccles said.

ldickson@timescolonist.com

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