B.C. Supreme Court Justice Strikes Down Section of Medical Marijuana Law

A B.C. Supreme Court justice has struck down a section of Health Canada’s medical marijuana laws.

CLICK HERE to download a PDF of the decision

Friday morning, Justice Robert Johnston concluded that the restriction to dried marijuana in the Marijuana Medical Access Regulations is unconstitutional as it breaches Section 7 of the Charter of Rights.

If the decision stands, it means medical-marijuana users will be able to possess cannabis in any form.

“The remedy for this breach is to remove the word ‘dried’ where it appears in the medical marijuana access regulations and I so order,” said Johnston.

Owen Smith, the Victoria man who was the head baker for the Cannabis Buyers’ Club of Canada, will still have to stand trial on charges of possession for the purpose of trafficking and unlawful possession of marijuana.

Smith is to appear in court April 25 to fix a date for jury selection and trial.

Friday morning, his lawyer Kirk Tousaw called the ruling a partial victory.

“The medical marijuana access regulations are unconstitutional. They have been stricken. That goes into effect immediately,” he told Smith’s supporters outside the courtroom.

“I suspect because Owen broke the law and was supplying to people who weren’t just MMAR people, he doesn’t get to walk away from this just because the law is unconstitutional.”

The parties have been told to appear in court at 2 p.m. The Crown may apply to declare Johnston’s ruling invalid or ask for some time to allow the government to respond.

Crown prosecutor Peter Eccles said he needed to read the judgment before deciding what to do.

Smith launched his court challenge in January. Tousaw argued that under the charter, Health Canada’s medical-marijuana program is unduly restrictive and constitutionally flawed because permitted users were only allowed to possess marijuana for medical reasons in dried form.

“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 said.

– Article from The Times-Colonist.


Prohibition on medical pot cookies unconstitutional

by CBC News

A B.C. Supreme Court judge has struck down a section of Canada’s medical marijuana laws that said licensed users cannot possess pot cookies or marijuana body creams.

Justice Robert Johnston ruled the federal medical marijuana access regulation that allows permitted users to only possess dried marijuana is unconstitutional on Friday in Victoria.

The court challenge stems from the case of Owen Smith, who was charged with trafficking for baking pot cookies and producing topical cannabis creams for a medical marijuana club in Victoria in 2009.

Health Canada allows people suffering from debilitating illnesses to have access to marijuana for medical purposes. They can get the marijuana through Health Canada or they can get permission to grow it themselves.

But Smith’s lawyer Kirk Tousaw successfully argued there is a contradiction in the law, which allows the designated users to smoke marijuana but prohibits them from turning it into any other product.

However, Justice Johnston also ruled even though Smith’s constitutional rights were breached by the regulation, he will still have to stand trial for trafficking because he may have been producing the products for people who weren’t permitted users.

– Article from CBC News.

Comments

2 Comments

  1. Anonymous on

    It must also be legal for patients to get hash and oil then. The decision says;

    “[76] Instead, what is at issue here is the requirement imposed
    by Health Canada through s. 2 of the MMAR that those to whom
    an Authorization To Possess has been issued can lawfully
    possess their marihuana in dried form only.

    [77] If and when Ms. Quin, Ms. Herman, or Ms. Arthurs render
    the dried marihuana in their lawful possession into another
    form, such as by infusing it into cooking oil or by separating
    the glandular trichomes from the dried plant material and
    mixing those trichomes into tea, they would be subject to
    prosecution because they would have lost the protection that
    an Authorization To Possess applies to dried marihuana.”

    Well, if you can now extract the trichomes and make tea with them then you can also compress them into a block and smoke them. This is a giant leap forward for hash equality.

  2. Anonymous on

    :) KIRK YOU ARE BY FAR THE BEST LAWYER FOR THIS CAUSE!
    Thank you sir. I will be praying that God continues to give you a good life. You deserve it sir!