Pubdate: Fri, 15 Aug 2014
Source: StarPhoenix, The (CN SN)
Copyright: 2014 The StarPhoenix
Contact: http://www.canada.com/saskatoonstarphoenix/letters.html
Website: http://www.canada.com/saskatoonstarphoenix/
Details: http://www.mapinc.org/media/400
Author: Ian Mulgrew
Page: A8
Referenced: R. v. Smith: http://mapinc.org/url/SFsYRnzS

MEDICAL MARIJUANA RESTRICTIONS UNCONSTITUTIONAL

VANCOUVER - B.C.'s highest court has ruled there is a constitutional
right to tasty pot cookies and other marijuana products such as
infused oils, balms and lotions.

In a 2-1 judgment, the provincial Court of Appeal said the country's
medical marijuana legislation is unconstitutional because it restricts
patients to possessing only the dried plant and to consuming it via
smoking.

The top bench suspended its ruling to give Ottawa a year to amend the
law to allow patients access to edibles and derivatives - such as
creams, salves, brownies, cakes, cookies and chocolate bars.

"In my opinion, decisions concerning how one manages serious health
problems go to the core of what it means to live with dignity,
independence and autonomy as contemplated" in other Supreme Court of
Canada cases, wrote Judge Nicole Garson, supported by colleague Risa
Levine.

"Where the state interferes with an individual's capacity to make
decisions concerning the management of those health problems by threat
of criminal sanction, the state is depriving that individual of the
power to make fundamental personal choices and the liberty interest is
engaged."

The majority dismissed the government's appeal of a Victoria case in
which a compassion club baker, Owen Smith, was found not guilty after
being caught with 200-plus cookies, a supply of cannabis-infused
cooking oils and some dried dope in his apartment.

In 2012, B.C. Supreme Court Judge Robert Johnston acquitted Smith
after ruling that permitting dried cannabis alone was arbitrary and
did little to further a legitimate state interest.

The justice found criminalizing a patient's choice of smoking or
eating his or her medicine was an unwarranted infringement of security
of the person rights guaranteed under Section 7 of the
Constitution.

"I would vary the trial judge's order to hold that the limitation ...
is of no force and effect under s. 52 of the Charter to the extent
that a person who has been granted an (Authorization To Possess) is
permitted to possess only dried marijuana," Garson said.

"Of course, as the Regulations rely on the 'physician as gatekeeper',
I see no reason why an ... applicant would not be required to have
their physician indicate the need for edible or topical cannabis in
order to secure an exemption."

The court heard that marijuana's active ingredients had a
longer-lasting effect if they were ingested rather than inhaled,
bringing greater benefit to those who used it to treat conditions such
as chronic pain and glaucoma. Smoking achieves a quicker, but
less-lasting benefit.

"I'm very happy," Smith said Thursday.

He no longer bakes for the compassion club, he added, but is working
on a feature-length play about his experiences.

"I'm also blogging to keep people up to date about extracts and
educating people about marijuana and the options available to
patients," Smith said.

His lawyer Kirk Tousaw maintained the decision was a great victory but
raised some questions - it is unclear, he noted, whether only patients
can transform dried pot into another product or whether licensed
producers also had that right.

Regardless, he explained, the government is unlikely to respond very
quickly because there are other constitutional challenges before the
Federal Court and the B.C. Supreme Court involving the newest medical
marijuana regulations, which came into effect April 1.

The outcome of that litigation will be fundamental to determining how
the law is re-written, Tousaw said.

In his dissent, Judge Ed Chiasson said Smith had no right to challenge
the legislation since he wasn't a licensed medical patient or
producer. "It has nothing to do with him," Justice Chiasson insisted.

He also offered the novel view that the regulations did not restrict
patients' access to derivatives.
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MAP posted-by: Matt