People authorized to use medical marijuana can bake it in brownies and drink it in their tea, not just smoke it in dried form, the B.C. Supreme Court ruled Friday.
Justice Robert Johnston concluded that the restriction to dried marijuana in the Health Canada’s Marijuana Medical Access Regulations is unconstitutional as it breaches Section 7 of the Charter of Rights.
“The remedy for this breach is to remove the word ‘dried’ where it appears in the Marijuana Medical Access Regulations and I so order,” said Johnston.
The decision arises out of a constitutional challenge by Owen Smith, the head baker for the Cannabis Buyers’ Club of Canada.
Smith, 29, was charged on Dec. 3, 2009, with possession for the purpose of trafficking and unlawful possession of marijuana, two years after the manager of the Chelsea apartments on View Street complained to police about a strong, offensive smell wafting through the building.
Police obtained a search warrant for the apartment and discovered substantial quantities of cannabis-infused olive and grapeseed oil and pot cookies, destined for sale through the club.
At the time he was charged, he was producing oils, topical and edible cannabis-based products for the club.
Smith’s trial began in January with a voir dire — a trial within a trial — on a charter application challenging the restrictions in the MMAR which allow authorized users to possess medical marijuana in dried form only.
Defence lawyer Kirk Tousaw argued the laws were unconstitutional and arbitrary and did not further the government’s interests in protecting the health and safety of the public. Instead, the regulations forced critically and chronically ill Canadians to predominantly smoke medical marijuana, which was potentially harmful.
“Even an authorized person, under Health Canada’s regime, is unable to produce cannabis butter to make cookies to eat before bed, or when they get up in the morning to deal with chronic pain,” he told the court.
During the trial, patient witnesses testified they wanted the opportunity to drink tea infused with cannabis, or eat pot cookies or apply topical oils infused with cannabis. These other modes of ingestion are more effective and less harmful than smoking or vaporizing dried marijuana, said Tousaw.
On Friday, Tousaw said he was grateful for Johnston’s decision.
“This will pave the way for permitted users to possess and produce this medical substance in forms other than dried,” said Tousaw. “Permitted users can drink it in tea or bake it with edible oils.”
By Louise Dickson
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