The head baker of the Cannabis Buyers’ Club of Canada will be acquitted of two outstanding drug offences — but medical-marijuana fans shouldn’t celebrate too quickly.
Lawyers say the Crown has left the door open to appeal a landmark medical-marijuana ruling that allowed people authorized to use marijuana to drink it in tea or bake it in brownies or cookies.
In April, Owen Smith won a constitutional challenge against Health Canada’s medical-marijuana laws. Smith had been charged in December 2009 with possession for the purpose of trafficking and unlawful possession of marijuana 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 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 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 marijuana.
Although Smith pleaded not guilty to the charges, admissions of fact were entered into the court record, in which he acknowledged essential elements of the offences.
In the end, B.C. Supreme Court Justice Robert Johnston ruled that it’s unconstitutional to restrict medical-marijuana patients to using dried pot. He gave Health Canada a year to respond to his ruling.
Although Tousaw asked Johnston to enter a stay of proceedings, arguing that Smith stepped in to fill a legislative void, Johnston denied the application. Smith was ordered to stand trial and jury selection was scheduled for February.
On Friday, Tousaw said he had received a call from the Crown saying the jury trial is no longer necessary.
“The trial has been rescheduled for the morning of Jan. 10,” said Tousaw.
“The Crown will not be calling evidence against Mr. Smith and they will invite the judge to enter a not-guilty verdict.”
Paul Pearson, co-chairman of the Canadian Bar Association’s criminal section in Victoria, said the decision probably means the Crown is leaving the door open for an appeal.
“If the Crown withdrew the charges or stayed the charges themselves, then they can’t appeal it,” said Pearson.
“This is the way for them to end it quickly and not waste time on this trial before the court. They can get right to the question of the constitutionality of the legislation. Whether they will or not is a political decision.”
When Smith’s trial is over, the Public Prosecution Service has 30 days to appeal.
This decision and the implications are much more broad-reaching than Smith, Pearson said.
“They’re looking across the country. They’re looking at national importance. They’re looking at this decision in a very large forest-for-the-trees way and Mr. Smith is only one tree.”
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