Pubdate: Fri, 15 Aug 2014
Source: Montreal Gazette (CN QU)
Copyright: 2014 Postmedia Network Inc.
Contact:  http://www.montrealgazette.com/
Details: http://www.mapinc.org/media/274
Author: Ian Mulgrew
Page: A8
Referenced: R. v. Smith: http://mapinc.org/url/SFsYRnzS

B.C.'S TOP COURT LIFTS RESTRICTIONS ON MEDICAL MARIJUANA USE

Law Is Unconstitutional Because It Prohibits Edibles, Derivatives, Judges Rule

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 province's 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 court 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, Justice Nicole Garson wrote, on behalf of Justice 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 Justice 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 the 
right to security of the person guaranteed under Section 7 of the 
Charter of Rights.

"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," Garson wrote.

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 benefit but it doesn't last as long.

"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," he said.

His lawyer, Kirk Tousaw, said 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 have that right.

He said the government is unlikely to respond 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 rewritten, Tousaw said.
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MAP posted-by: Jay Bergstrom