Pubdate: Fri, 12 Jun 2015
Source: Vancouver Sun (CN BC)
Copyright: 2015 Postmedia Network Inc.
Contact:  http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Ian Mulgrew
Page: A3
Referenced: (R. v. Smith): http://mapinc.org/url/d2dzMbjW

POT COOKIES, TEAS LEGAL FOR MEDICAL MARIJUANA USERS

The Supreme Court of Canada has opened Pandora's cookie jar by
blessing pot-infused ginger snaps and cannabis derivatives, causing a
fuming federal health minister to insist that patients must smoke their bud.

In a unanimous decision, stinging in its brevity and common sense, the
country's highest court said Thursday medical marijuana patients
should not be restricted to just the dried plant.

The seven justices said the national medical pot program was flawed,
impinged on patients' rights, and was not saved by the section of the
Constitution that allows reasonable infringements for worthy societal
goals.

Lawyers involved in the case said it also had broader implications
because the right to use comes with an implicit right of access to a
supply.

Although this case was supported by the Victoria Cannabis Buyers Club,
such clinics and dispensaries that have long provided derivative
products, as well as dried pot, have always been illegal. The landmark
Supreme Court ruling, however, appears to give them arguable legal
ground on which to sell derivatives, since there are no authorized
suppliers.

That could have huge repercussions in Vancouver where civic officials
are faced with nearly 100 unregulated outlets, most offering a range
of pot products, as well as dried weed.

Health Minister Rona Ambrose was apoplectic the high court ruled that
patients now can have cannabis tea, brownies, cookies, chocolate bars,
hash, balms, creams, lotions, tinctures, infused oils, salves ...

"Marijuana has never gone through the regulatory approval process at
Health Canada, which requires rigorous safety reviews and clinical
trials with scientific evidence," she told reporters in Ottawa. "So
frankly, I'm outraged by the Supreme Court."

Ambrose maintained that cannabis didn't become therapeutic "because
judges deemed it so."

The Conservative insistence that patients smoke or vape their
medication once again finds them clashing with the judiciary, which
considers that nonsensical.

"Inhaling marihuana (the archaic legal spelling) can present health
risks and is less effective for some conditions than administration of
cannabis derivative," the country's highest bench said in the ruling
that was unsigned, implying institutional weight.

There is no connection between the prohibition on non-dried forms of
marijuana and the health of the patients who qualify for legal access,
the court said.

"It is therefore difficult to understand why allowing patients to
transform dried marihuana into baking oil would put them at greater
risk than permitting them to smoke or vaporize dried marihuana," the
justices added.

"Moreover, the Crown provided no evidence to suggest that it would.
. Finally, the evidence established no connection between the
impugned restriction and attempts to curb the diversion of marihuana
into the illegal market. We are left with a total disconnect between
the limit on liberty and security of the person imposed by the
prohibition and its object."

The appropriate remedy, the court said, is a declaration that the law
is of no force and effect to the extent that it prohibits a person
with a medical authorization from possessing cannabis derivatives for
medical purposes.

"It's fantastic," enthused Vancouver Island lawyer Kirk Tousaw, who
with Abbotsford counsel John Conroy handled the appeal.

"It goes into effect immediately - what else could you ask
for?"

Jason Gratl, of the B.C. Civil Liberties Association, which was one of
five interveners in the case, also celebrated:

"It's a great victory. It carries the potential to be a stepping stone
to significant changes on other legal issues, such as the threshold
for triggering the right to liberty. And their use of the word
'non-trivial' is important, too."

One of the key points of the ruling is that the court broadly
conceived of medical autonomy to include not only amelioration of
injury or illness, but also "nontrivial" enhancement, maintenance and
preservation of health or well-being.

The choice of individuals to use what they experience as the most
efficacious mode of using a medication is a "non-trivial" choice, and
restricting that choice infringes the right to liberty.

In rejecting the government's appeal, the court explained that it was
not suspending its declaration, even though the lower court decision
had given Ottawa a year to fix the law. Such a suspension, the
justices said, would leave patients without lawful medical treatment
and the law and law enforcement in limbo.

But there is no legal supply of cannabis derivatives - and the
decision will incite a sea-change in the direction of the medical
cannabis industry away from smoking by allowing a broad range of new
products.

Tousaw said the supply issue was a new conundrum: "It's unresolved -
which is a big problem. They could license (producers). But won't."

Gratl said the supply question loomed over the judgment - noting that
with dried marijuana, patients first won the right to use it with the
Parker decision in 2000, then the right to a supply in Hitzig v.
Canada 2003.

The case has its roots in a December 2009 West Coast bust. The former
head baker for the cannabis club, Owen Smith, was arrested in his
Victoria apartment with 200-plus cookies, a supply of cooking oils and
some dried dope. He was charged under the Controlled Drugs and
Substances Act with trafficking tetrahydrocannabinol (THC), one of the
main psychoactive chemicals in pot and presumably the tasty snaps and
oils, and possession.

In 2012, B.C. Supreme Court Judge Robert Johnston acquitted Smith
after ruling that the medical marijuana regulations were
constitutionally flawed because they restricted patients' therapeutic
use of cannabis.

The high bench affirmed the acquittal. Tousaw said his client was
thrilled.

Both the old rules, known as the Marihuana Medical Access Regulations,
and the new ones titled, the Marijuana for Medical Purposes
Regulations, which came into effect April 1, restricted patients to
only dried cannabis.

Johnston, whose reasoning was endorsed by the Supreme justices, said
that constraint was arbitrary.

He found criminalizing how a patient used his or her medicine an
unwarranted infringement of security-of-the-person rights guaranteed
under Section 7 of the Charter of Rights and Freedoms.

Marijuana's active ingredients have a longer-lasting effect if they
are ingested rather than inhaled, bringing greater benefit to those
who use it to treat conditions such as chronic pain or glaucoma.
Smoking achieves a quicker, but less-lasting benefit.

But for many patients, especially children and the elderly, the court
heard, using extracts is a much more reasonable method of ingestion
than smoking or vaping.

Last August, in a 2-1 judgment, the B.C. Court of Appeal agreed with
Johnston sparking Ottawa's appeal.
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MAP posted-by: Matt