Pubdate: Fri, 20 Mar 2015 Source: Ottawa Citizen (CN ON) Copyright: 2015 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 MacLeod Page: A13 HIGH COURT MULLS MEDICAL MARIJUANA LAW To Decide Whether It Is Legal to Eat Foods Laced With Prescribed Cannabis Marijuana has been used medicinally and recreationally for thousands of years, including all of these topical and edible substances. Canada's high court contemplates Friday whether it is a constitutional right to munch cookies, brownies and oils laced with medical marijuana. Federal regulations restrict authorized users of physician-prescribed cannabis to consuming only dried marijuana plants. Brewing pot in tea, baking it into a brownie or any form of consumption other than smoking the dried plant buds can trigger criminal trafficking and narcotics possession charges under the Controlled Drugs and Substances Act. The question before the Supreme Court of Canada, in its first foray into the medical marijuana debate, is whether the Health Canada regulation violated medical marijuana users' constitutional right to life, liberty and safety. That's what Owen Smith contends. Police in 2009 found more than 200 pot cookies and cannabis-infused olive oil and grapeseed oil in his Victoria apartment. The former head baker for the Cannabis Buyers Club of Canada was charged with possession for the purpose of trafficking and unlawful possession of marijuana. At Smith's 2012 trial, lawyer Kirk Tousaw argued the restrictive regulation was unconstitutional and arbitrary and did not further the government's interest in protecting public health and safety. Instead, it forces the critically and chronically ill to smoke medical marijuana, which is potentially harmful, he said. Even though Smith is not a medical marijuana user, a judge agreed and found that criminalizing a patient's choice of smoking or eating his or her medication is an unwarranted infringement of security of the person rights guaranteed under Section 7 of the Charter. Smith was acquitted of the drug offences. The Crown appealed and lost. The majority decision of the British Columbia Court of Appeal ruled the government had no basis to assert that transforming dried marijuana into tea or baking oil put individuals at greater risk. It gave the government until August to draft new regulations to allow medicinal marijuana users to use products made from cannabis extract. That can include creams, salves, oils, brownies, cakes, cookies and chocolate bars. The Public Prosecution Service of Canada is now asking the Supreme Court to strike down that judgment, rendered last August. It also contends that since Smith is not a medical marijuana user, he should have no standing to challenge the constitutional validity of the regulation. The prosecution service declined to comment for this story. The government does not endorse the use of marijuana, but the courts have required reasonable access to a legal source of marijuana when authorized by a physician. The government has consistently argued that its medical marijuana regulations are intended to protect Canadians' health and safety. What's more, the Crown's case factum argues the Charter does not confer a right to obtain or produce drugs, "based on a subjective belief in their therapeutic value, irrespective of medical need or lawfully available alternative treatments." "Even if liberty or security of the person interests were engaged, a regulatory scheme which only permits access to controlled substances that can be shown to be safe and therapeutically effective is not arbitrary, grossly disproportionate, or otherwise inconsistent with the principles of fundamental justice." There's concern, too, of pot-laced cookies and other illicit treats being diverted to the black market, and of the difficulties police would encounter trying to determine whether a batch of cookies or brownies contained more dope than the patient was authorized to possess. Tousaw, a longtime legal advocate for marijuana legalization, sees it differently. Patients who find more effective and potentially less harmful forms of cannabis have a right to consume it the way they please, he said in an interview Thursday. "Marijuana has been used medicinally and recreationally for thousands of years, including all of these topical and edible substances. And nobody's dying, the sky hasn't fallen. I think it's probably safe to call it the largest open clinical trial in the history of humankind." If the high court sides with him, it could be a pyrrhic victory. The offending regulation was contained in the Medical Marijuana Access Regulations (MMAR), an annex to the Controlled Drugs and Substances Act. The government repealed the MMAR last year and replaced it with the Marijuana for Medical Purposes Regulations (MMPR), which continue to limit use to dried plant buds. The Smith case, and therefore the basic issue before the Supreme Court, is based on the defunct MMAR. If the court simply rules that the regulation was unconstitutional, it's questionable whether that also would apply to the new MMPR. Instead, Tousaw wants the court to craft a more effective remedy by ordering an exemption for medical marijuana users be incorporated into the Controlled Drugs and Substances Act. "At that point we at least have taken patients off the front lines and they are no longer engaging in criminal conduct if they bake cookies for themselves to eat out of their lawfully possessed marijuana." Medical marijuana would then fall under natural health production regulations, he said. And "if the government wants to regulate in some manner commercial production and sale and marketing, it's perfectly entitled to do so." - --- MAP posted-by: Jay Bergstrom