NANAIMO — In a case that may have national ramifications, the head baker of the Cannabis Buyers’ Club of Canada has been acquitted of outstanding drug offences.
The charges against Owen Smith — possession for the purpose of trafficking and unlawful possession of marijuana — have been at the centre of a successful constitutional challenge against Health Canada’s medical marijuana laws. April’s landmark ruling allowed people who are authorized to use medical marijuana to drink it in tea or bake it in brownies and cookies.
Despite the ruling, Smith still faced the original charges.
The 30-year-old was charged in December 2009 after the manager of the Chelsea apartments on View Street in Victoria complained to police about a strong, offensive smell wafting through the building.
Officers obtained a search warrant and recovered substantial quantities of cannabis-infused olive and grapeseed oil, as well as pot cookies destined for sale through the Cannabis Buyers’ Club.
Smith’s trial began Jan. 16, 2012, but moved quickly into a voir dire — a trial within a trial — to allow defence lawyer Kirk Tousaw to challenge the validity of the Controlled Drugs and Substances Act regarding medical marijuana. Tousaw argued that it was unconstitutional to not allow dry marijuana to be rendered into oils and other substances for medical purposes.
Although Smith pleaded not guilty to the charges, admissions of fact were entered into the court record in which he acknowledged the essential elements of the offences.
B.C. Supreme Court Justice Robert Johnston ruled it unconstitutional to restrict medical-marijuana patients to only using dried pot. He gave Health Canada a year to respond to the decision.
Although Tousaw asked Johnston to enter a stay of proceedings, arguing Smith’s service filled a legislative void, Johnston denied the application. Smith was ordered to stand trial and jury selection was scheduled for February.
In December, Tousaw said he’d received a call from the Crown saying it did not intend to enter any evidence and would ask the judge to acquit Smith.
At the time, lawyers said the legal manoeuvre left the door open for an appeal. If the Crown had withdrawn or stayed the charges, it could not appeal Johnston’s ruling.
Smith appeared in B.C. Supreme Court in Nanaimo on Thursday. The Crown did not call evidence against Smith and the 30-year-old was acquitted.
Tousaw said he hopes Smith’s case will go before the B.C. Court of Appeal.
“I look forward to going to the Court of Appeal and hopefully seeing Judge Johnston’s decision affirmed,” he said.
Paul Pearson, co-chairman of the Canadian Bar Association’s criminal section in Victoria, said a Court of Appeal ruling affirming Johnston’s decision could have a far-reaching impact.
“It has broad ramifications for medical marijuana users in B.C. and potentially across the country,” Pearson said. “But what is unknown, at this time, is how the government is going to respond.”
After his brief court appearance, Smith said he was happy to avoid a criminal record. However, he’s concerned about what could happen to treatment options if the Crown pursues an appeal.
“I’m glad that I’ve seen it be verified in this very serious way,” he said.
The Crown has 30 days to appeal the ruling.
