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Medical pot ruling suspended for a year

Apr 28 2012
Lawyer Kirk Tousaw, left, and medical marijuana case defendant Owen Smith outside of court in Victoria on April 13, 2012. 

Lawyer Kirk Tousaw, left, and medical marijuana case defendant Owen Smith outside of court in Victoria on April 13, 2012.

Photograph by: Darren Stone, Victoria Times Colonist , timescolonist.com April 13, 2012

A B.C. Supreme Court judge has given Health Canada one year to respond to his ruling that it is unconstitutional to restrict medical marijuana patients to just using dried pot.

Justice Robert Johnston also ruled on Friday that the suspension of his declaration for a year would not affect people authorized to use medical marijuana under Health Canada’s Marihuana Medical Access Regulations.

On April 12, Johnston ruled that people authorized to use medical marijuana could make cannabis-infused oils, drink it in tea or bake it brownies and cookies, in addition to smoking it.

Health Canada applied to the court asking for a year to respond to the ruling. “While it may seen like a simple ruling, it has anything but simple impacts, and the government needs some time to figure out how to most appropriately respond,” said federal prosecutor Peter Eccles.

Designated producers are in the same legal position they were in prior to the ruling, Eccles said, and are not allowed to make secondary products. “Sometime in the next year, this will get resolved in a legislative response,” he said.

The decision arises out of a constitutional challenge by Owen Smith, head baker for the Cannabis Buyers’ Club of Canada.

Smith, 29, was charged on Dec. 3, 2009, with possession for the purpose of trafficking and unlawful possession of marijuana, two years after the manager of the Chelsea apartments on View Street in Victoria complained to police about a strong, offensive smell wafting through the building.

Police obtained a search warrant and found substantial quantities of cannabis-infused olive and grapeseed oils, and pot cookies. At the time, Smith was charged, he was producing topical and edible cannabis-based products to be sold through the club.

Smith’s trial began in January with a voir dire — a trial within a trial — on an application challenging the restrictions that allow authorized users to possess medical marijuana in dried form only.

Defence lawyer Kirk Tousaw argued the laws were unconstitutional and arbitrary and did not further the government’s interests in protecting the health and safety of the public. Instead, they forced the critically and chronically ill to predominantly smoke medical marijuana, which is potentially harmful.

“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 told the court.

On Friday, Tousaw said he had successfully defended the rights of patients to use cannabis derivative products. “At least in B.C., those patients will be protected from criminal charges and deprivation of their liberty,” he said.

“We were not successful in extending that protection, at least for the next 12 months, to designated producers — those who are producing cannabis for the medical marijuana users.”

Tousaw said he hoped Health Canada would take the decision and use it to craft sensible reforms that are not largely based on law enforcement concerns.

Smith has been ordered to stand trial. Jury selection is scheduled for Feb. 4, 2013. “My hope is the effect of the judge’s ruling, coupled with our medical-necessity defence, will convince a jury what Mr. Smith was doing was important and necessary and he ought not to be convicted of a crime for helping sick people,” Tousaw said.


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