Ottawa appealing medical marijuana ruling

The federal government is heading to the Supreme Court of Canada to determine whether medical marijuana patients have a constitutional right to cannabis oils, butters, teas and lotions.

The Public Prosecution Service of Canada last month filed a notice of appeal of the decision of B.C.’s Court of Appeal in the Owen Smith case.

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On Aug. 14, in a 2-1 judgment, the appeal court said the country’s medical marijuana legislation was unconstitutional because it restricts patients to possessing and smoking only the dried plant material.

Two of the appeal court judges dismissed the government’s appeal in the case of Smith, the former head baker for the Cannabis Buyers Club of Canada. In 2009, Smith was charged with possession for the purpose of trafficking and unlawful possession of marijuana after police found more than 200 pot cookies and cannabis-infused olive oil and grapeseed oil in an apartment on View Street.

At Smith’s trial in 2012, lawyer Kirk Tousaw argued that the medical marijuana access regulations were unconstitutional and arbitrary and did not further the government’s interest in protecting public health and safety. Instead, they forced the critically and chronically ill to smoke medical marijuana, which was potentially harmful.

In the end, Justice Robert Johnston agreed, ruling it was unconstitutional to restrict medical marijuana patients to using dried cannabis alone. Johnston found that criminalizing a patient’s choice of smoking or eating his or her medication was an unwarranted infringement of security of the person rights guaranteed under Section 7 of the Constitution.

Johnston gave Health Canada a year to respond to his ruling.

Smith was acquitted of the outstanding drug offences and the Crown appealed Johnston’s decision.

The notice of appeal to the Supreme Court of Canada is based on two questions of law: whether Smith has standing to challenge the constitutional validity of the medical marijuana access regulations and whether these regulations are inconsistent with Section 7 of the Charter of Rights and Freedoms.

No date has been set, Tousaw said.

“I find it distressing that our government will spend buckets of tax dollars fighting against sick people’s rights to ingest physician-approved cannabis medicine in the form of cookies,” Tousaw said.

“I look forward to the opportunity to defend patients’ charter rights before the highest court in the land. This is a historic moment because the Supreme Court of Canada has never heard a medical cannabis case.”

Since Johnston’s April 2012 decision, patients in B.C. have been able to make their own butters, oils, baked goods and lotions.

Smith said he said he is “proud to represent the many disabled or diseased Canadians who find relief from edible or topical cannabis extracts.”

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