Legal Ordeal Not Over in Pot Case

Lawyer Kirk Tousaw, left, and defendant Owen Smith outside of court in Victoria on Friday. Smith will be back in court on April 25. (Photo by Darren Stone)Lawyer Kirk Tousaw, left, and defendant Owen Smith outside of court in Victoria on Friday. Smith will be back in court on April 25. (Photo by Darren Stone)Although Owen Smith has won a constitutional challenge against Health Canada’s medical marijuana laws, he’ll be back in court April 25 to set a date for his trial by judge and jury.

The head baker for the Cannabis Buyers’ Club of Canada still faces charges of possession for the purpose of trafficking and possession of marijuana.

His lawyer, Kirk Tousaw, had sought a judicial stay of proceedings for Smith. On Friday, B.C. Supreme Court Robert Johnston dismissed that application.

“In this case, I have found there has been a violation of liberty and security rights of the medical marijuana users protected by [the charter]as well as Mr. Smith’s liberty right. However, I find that society’s interests in having the charges against Mr. Smith tried on their merits outweighs the violation of Mr. Smith’s liberty right, at least sufficiently to deny him the judicial stay he seeks,” wrote Johnston.

Outside court, Smith appeared happy, unconcerned about the impending trial. Smith said he felt his heart flutter when Johnston ruled Health Canada’s medical marijuana access regulations were “unconstitutional.”

“I’m really proud of all the work we’ve done so far,” said Smith. “Lots of patients and members of the club have been very supportive. We’re going to keep going and do just as good a job in the next round in front of a jury.”

Tousaw hopes to persuade a jury to acquit Smith on the basis of medical necessity. “In other words, because these products were unlawful at the time, it was necessary for him to do it to alleviate the suffering of chronically ill Canadians,” Tousaw said.

The Crown has no reason not to proceed to trial, said federal prosecutor Peter Eccles.”As the judgment points out, the accused and [Cannabis Buyers’ Club of Canada proprietor] Ted Smith were selling to the public. They were not simply providing product to licence holders,” Eccles said.

Admissions of fact have been entered into the court record, in which Owen Smith admits the essential elements of the offences – that he was separating THC from cannabis, baking it into cookies and putting THC oil in capsules.

Ted Smith, no relation to the accused, said he’s not intimidated by the prospect of a jury trial.

“I’m confident no jury in this country will convict Owen for making cookies and skin products,” Smith said. “It will give us another opportunity to change public opinion. Today, we changed the law.”

– Article from Times Colonist.



  1. Bud Grinder on

    The Smiths are to be commended for their willingness to push the boundaries for the benefit of all the rest of us. They are brave pioneers and it is my hope that their contribution to the enhancement of freedom for all cannabis consumers will someday be officially recognized.

    How about another national holiday called “Smiths Day”? Have it on April 20.

  2. Dave on

    If Judges are so impartial why do they always side with governments. I’ve never had a Judge say to me, “Oh your crime is not that serious, you can just go home”! The Judge will say to the Jury, “since this guy admitted to the crime then you must find him guilty”!

    Sounds like a good case to solidify the process of “Jury Nullification”!