The B.C. Court of Appeal released its 2-1 ruling on Thursday, upholding a lower court decision in the case of Victoria resident Owen Smith, who was charged in 2009 with possession for trafficking of THC, marijuana’s active compound. Smith, arrested while baking cookies for the Cannabis Buyers Club of Canada, was also charged with possession of dried marijuana.
He successfully argued in B.C. Supreme Court that Canada’s medical marijuana laws are unconstitutional because they fail to allow people with a medical need to possess cannabis in forms — such as body creams, butters, brownies and teas — other than dried plant material.
A B.C. Supreme Court judge acquitted Smith on both counts and ordered the word “dried” and the definition of “dried marijuana” to be deleted from the regulations. The Crown appealed.
The Appeal Court upheld the earlier decision, stating that medical marijuana access regulations infringe on the charter rights of people who require other forms of cannabis to treat illnesses.
“The regulatory interest of the state is in ensuring that the volume of marijuana available for medical use is consistent with that use — apart from that, it has no interest in how an individual ingests the drug,” said Justice Nicole Garson, writing for the majority.
The Appeal Court ruled its judgment may be suspended for one year to allow Parliament time to amend regulations so that they are constitutional.
Smith’s lawyer, Kirk Tousaw, who also represents other medical marijuana-related litigants, said his client is pleased the court will allow patients to decide what mode of ingestion works best for their symptoms and conditions.
“How many people out there really think that a critically and chronically ill member of their family shouldn’t be entitled to eat a medical marijuana cookie if that relieves their pain?” Tousaw said.
“We’re talking about the right of patients to find some relief from their very serious symptoms and conditions. It’s about time our government stopped wasting our money trying to prevent people from doing that.”
Ted Smith (no relation to Owen Smith), the founder the Victoria Cannabis Buyers Club, said 10 per cent of its members would prefer marijuana derivatives to the dried leaves.
“This is like a new era in medical marijuana,” he said. “Allowing patients to smoke cannabis is one step. Allowing them to make cannabis derivatives opens up huge possibilities for the use of this medicine.”
Smith called the judgment “a huge victory for patients across the country, who can now make cannabis derivatives without fear of criminal charges.”
Having an exemption for dried marijuana but none for derivative products “seemed nonsensical,” said lawyer Paul Pearson, co-chairman of the Canadian Bar Association’s criminal justice branch in Victoria.
“The court is just bringing the medical marijuana regulations in compliance with common sense. If you can have dried marijuana, why can’t you have marijuana oil or marijuana cookies?”
Federal Health Minister Rona Ambrose was not available for an interview. Her department said it is reviewing the decision and considering its options.
The difficulty with the law is that it makes it legal to use pot in your own kitchen, but illegal to pay someone with sophisticated equipment to do it for you, Tousaw said.
“If my grandma wants to use medical cannabis to deal with arthritis pain, I think she should be entitled to go and purchase it from someone who can say, ‘Look, eat half a cookie and you’re ingesting 14 mg of THC,’ ” he said. “Then she can know for herself what the appropriate dosage is.”
— With files from the Canadian Press