Pubdate: Fri, 15 Aug 2014
Source: Ottawa Citizen (CN ON)
Copyright: 2014 Postmedia Network Inc.
Contact: http://www.canada.com/ottawacitizen/letters.html
Website: http://www.ottawacitizen.com/
Details: http://www.mapinc.org/media/326
Author: Ian Mulgrew
Page: A5
Referenced: R. v. Smith: http://mapinc.org/url/SFsYRnzS

RESTRICTIONS ON MEDICAL MARIJUANA UNCONSTITUTIONAL, B.C. COURT SAYS

B.C.'s highest court has ruled there is a constitutional right to 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 the federal government 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, B.C.,
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 cannabis 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.

His lawyer Kirk Tousaw said the decision was a great victory but
raised 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 rewritten, 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.

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