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VICTORIA – People authorized to use medical marijuana can bake it in brownies and drink it in their tea, not just smoke it in dried form, the B.C. Supreme Court ruled Friday.
Justice Robert Johnston concluded that the restriction to dried marijuana in Health Canada’s Marijuana Medical Access Regulations is unconstitutional as it breaches Section 7 of the Charter of Rights.
"The remedy for this breach is to remove the word ‘dried’ where it appears in the Marijuana Medical Access Regulations and I so order," said Johnston.
The decision arises out of a constitutional challenge by Owen Smith, the 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 complained to police about a strong, offensive smell wafting through the building.
Police obtained a search warrant for the apartment and discovered substantial quantities of cannabis-infused olive and grapeseed oil and pot cookies, destined for sale through the club.
At the time he was charged, he was producing oils, topical and edible cannabis-based products for the club.
Smith’s trial began in January with a voir dire — a trial within a trial — on a charter application challenging the restrictions in the MMAR which 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, the regulations forced critically and chronically ill Canadians to predominantly smoke medical marijuana, which was 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.
During the trial, patient witnesses testified they wanted the opportunity to drink tea infused with cannabis, or eat pot cookies or apply topical oils infused with cannabis. These other modes of ingestion are more effective and less harmful than smoking or vaporizing dried marijuana, said Tousaw.
On Friday, Tousaw said he was grateful for Johnston’s decision.
"This will pave the way for permitted users to possess and produce this medical substance in forms other than dried," said Tousaw. "Permitted users can drink it in tea or bake it with edible oils."
Tousaw also sought a judicial stay of proceedings for Smith. Johnston dismissed that application. Smith is to appear in court on April 25 to set a date for jury selection and trial.
"We hope to convince a jury to acquit Smith on the basis of the common law defence of medical necessity," said Tousaw. "In other words, because these products were unlawful at the time he was producing them, it was necessary for him to do it to alleviate the suffering of chronically ill Canadians."
The lawyers will be back in court at 2 p.m. for Johnston to hear arguments on whether his decision should be suspended for a period of time to allow the governments to respond.
At this time, it’s not known what position the Crown will take.
Tousaw intends to argue the suspension is not necessary.
"I’m hopeful the ruling will go into effect immediately and that Canadians who benefit from the use of medical cannabis in forms other than dried, other than smoked, will be able to without fear of arrest or prosecution," said Tousaw.
In previous cases, the government has appealed adverse rulings, he said.
Outside court, Owen Smith said he felt a flutter in his heart at the word ‘unconstitutional.’
"I’m really proud of all the work we’ve done so far. Lots of patients and members of the club have been very supportive. We’re going to keep going and do just as good a job in the next round in front of a jury," said Smith.
It’s hard to think a jury would deny others a safer form of medicating, he said.
Ted Smith, the proprietor of the Cannabis Buyers’ Club of Canada, said he wasn’t surprised by the decision.
"I had a firm belief in the law being wrong," he said.
Smith, who is no relation to the accused, said he’s not intimidated by the prospect of a jury trial.
"I’m confident no jury in this country will convict Owen for making cookies and skin products. It will give us another opportunity to change public opinion. Today, we changed the law."
Ultimately, said Smith, Canada’s cannabis laws will be struck down and changed.
"This is a great step towards patients’ abilities to control their own medicine. We took THC and cannabis away from pharmaceuticals this morning and put it back in people’s backyards where they can make their own medicines," Smith said as supporters cheered and applauded.