Search

Recent Articles

Recent Comments

7 Answers About Health Canada’s New Med-Pot Rules

By admin | July 10, 2015

By Dana Larsen

 

1) I heard Health Canada just legalized cannabis cooking oil. What’s going on?

As a result of a recent Supreme Court decision, Health Canada has just announced that they will be allowing licensed medical marijuana producers (LPs) to also apply for a license to sell fresh, uncured cannabis buds, and cannabis-infused oils. However, LPs cannot sell extracts like hash, resin oil or shatter, or infused food products.

2) Why fresh cannabis buds? Won’t those just go moldy during shipping to patients?

I believe this provision is there so that an LP can sell their fresh buds to another LP for processing. Some LPs might find it easier to outsource this work, or be unable to secure their own processing license. However, it doesn’t make sense to me that any LPs would start putting fresh buds on their retail menus for patients. They’re just too hard to ship and there’s no demand for uncured buds, except maybe fresh cannabis leaves for home juicing.

3) What are patients supposed to do with this cannabis oil?

Patients will either consume it directly, or make their own food products out of it. Some LPs could sell the oil in capsule or dropper form, making it easy for patients to ingest a fixed dosage. If the base oil is smokable, then perhaps patients could smoke the extract.

However, the potency of the oil is limited by Health Canada to 30mg THC per mL, which comes to just 3%. That’s weaker than most strains of smokable cannabis, and represents a serious obstacle to proper medical access and use.

Interestingly, THC is the only cannabinoid listed, so presumably these cannabis oils can be sold with a very high level of CBD, CBN or any other cannabinoid except THC.

4) How will doctors feel about this?

Doctors will likely feel more comfortable prescribing orally ingested cannabis oil capsules with specific THC and CBD levels. So I see this as a win for the legitimizing of medical cannabis and bringing doctors into the system.

5) How will the Licensed Producers feel about this?

They should be ecstatic. This opens up a vast new market for them, and gives them a means to use and profit from the shake and leaf that they couldn’t sell for smoking purposes. LPs are definitely celebrating this victory.

I hope they also feel some shame as well, because they love to complain about how dispensaries are stealing their patients and costing them money. Yet this lengthy and expensive case was entirely funded by BC dispensaries, mainly the Victoria Cannabis Buyers Club, and the main beneficiary is definitely the LPs.

6) How will patients feel about this?

Patients are frustrated that once again, Health Canada is doing the absolute minimum to comply with a Supreme Court decision on medical cannabis. The Supreme Court decision included “extracts” as well as “edibles,” but Health Canada is allowing only one form of edible product and no extracts for sale at all. A better system would include all kinds of properly labelled and regulated extracts and edibles for patients.

7) How will Vancouver dispensaries feel about this?

Dispensaries are happy whenever patients get better access or Canada gets closer to legalizing for everyone. In Vancouver, where City Hall wants to ban food products and only allow edible oils, these federal rules already sound familiar. But a major difference is that Vancouver dispensaries can still also sell hash, resin oil, shatter and other smoked and non-smoked extracts, while the LPs can’t. Dispensaries are also annoyed that Health Canada refuses to acknowledge that they exist or integrate them into the legal system at all.

Topics: Articles | Comments Off

First Medical Cannabis Dispensary In Canadian History Issued License In BC Small Town

By admin | June 23, 2015

Kimberley, BC Council Grants Business License to Medical Marijuana Dispensary

Carolyn Grant – Kimberley Daily Bulletin

posted Jun 23, 2015 at 10:29 AM

Mayor Don McCormick says he is proud of Kimberley City Council for making a progressive decision in the matter of granting a business license to Tamarack Dispensaries.

Tamarack Dispensaries will operate in Marysville and sell high quality medicinal cannabis products such as edible cookies, butters, oils and tinctures. When the proponents, Rod and Tamara Duggan presented to Council in April they said that the storefront would be “upscale and clinical”.

However, granting a business license was not as simple as one might think, because Council had to override its own bylaw to do so.

“Staff was obligated to reject the business license application because it didn’t meet the bylaw for complying with federal regulations,” McCormick said. “But Council can override that bylaw.”

And that is what Council did after a lengthy discussion, focusing mainly on the implications of allowing such a business in Kimberley. The vote was unanimous in favour.

“I am proud of Council for taking a progressive position on what is a controversial issue,” McCormick said. “We are not trying to be controversial, just applying common sense.”

Cannabis dispensaries do operate in a grey area without permits from Health Canada, the mayor says, and most municipalities just turn a blind eye to their existence.

“We are trying to remove it from the grey area and bring it under municipal regulation.

“It’s unclear what the implications are but change is driven by market.

“The picture is not someone smoking pot in a back room. These are derivatives produced to assist with long term illness. This isn’t about pot but a medical solution for chronic pain.”

McCormick points out that many people are prescribed powerful, addictive narcotics to manage illness and pain, and if there is an alternative it only makes sense to explore it.

McCormick said the Duggans presented a very clear business plan and have their own compelling personal reasons for wanting to open the store.

When they visited Council, Tamara Duggan said, ““Our vision is to add a viable, legitimate, and clinical business to Kimberley’s economy. Our research indicates that the presence of medical marijuana dispensaries is a growth industry in Canada with BC being the leader. And it provides a vital enhancement to the government’s Marijuana for Medical Purposes regulations.”

Topics: Articles | Comments Off

Supreme Court of Canada’s Decision RvSmith Thurs July 11th 2015

By admin | June 12, 2015

R. v. Smith

Supreme Court Judgments

Case name R. v. Smith
Collection Supreme Court Judgments
Date 2015-06-11
Neutral citation 2015 SCC 34
Case number 36059
Judges McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne
On appeal from British Columbia
Subjects Constitutional law
Notes SCC Case Information: 36059

 

 

SUPREME COURT OF CANADA

 

Citation: R. v. Smith, 2015 SCC 34

 

Between:

Her Majesty The Queen

Appellant

and

Owen Edward Smith

Respondent

- and -

Santé Cannabis, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Canadian AIDS Society, Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario

Interveners

 

 

Coram: McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Côté JJ.

 

Reasons for Judgment: 

(paras. 1 to 34)

The Court

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

r. v. smith

Her Majesty The Queen                                                                                 Appellant

v.

Owen Edward Smith                                                                                   Respondent

and

Santé Cannabis,

Criminal Lawyers’ Association (Ontario),

Canadian Civil Liberties Association,

British Columbia Civil Liberties Association,

Canadian AIDS Society, Canadian HIV/AIDS Legal Network and

HIV & AIDS Legal Clinic Ontario                                                             Interveners

Indexed as: R. v. Smith

2015 SCC 34

File No.: 36059.

2015: March 20; 2015: June 11.

Present: McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Côté JJ.

on appeal from the court of appeal for british columbia

Constitutional law — Charter of Rights — Standing — Accused charged with possession and possession for purpose of trafficking of cannabis — Regulations limiting lawful possession of medical marihuana to dried forms — Accused not using marihuana for medical purposes but producing derivatives for sale outside regulatory scheme — Whether accused has standing to challenge constitutional validity of scheme — Controlled Drugs and Substances Act, S.C. 1996, c. 19 , ss. 4(1) , 5(2) — Marihuana Medical Access Regulations, SOR/2001‑227.

Constitutional law — Charter of Rights — Right to life, liberty and security of person — Fundamental justice — Accused charged with possession and possession for purpose of trafficking of cannabis — Regulations limiting lawful possession of medical marihuana to dried forms — Whether limitation infringes s. 7 of Canadian Charter of Rights and Freedoms — If so, whether infringement justifiable under s. 1 of Charter — Appropriate remedy — Controlled Drugs and Substances Act, S.C. 1996, c. 19 , ss. 4(1) , 5(2) — Marihuana Medical Access Regulations, SOR/2001‑227.

S produced edible and topical marihuana derivatives for sale by extracting the active compounds from the cannabis plant. He operated outside the Marihuana Medical Access Regulations (“MMARs”), which limit lawful possession of medical marihuana to dried marihuana. S does not himself use marihuana for medical purposes. The police charged him with possession and possession for purpose of trafficking of cannabis contrary to ss. 4(1) and 5(2) , respectively, of the Controlled Drugs and Substances Act (“CDSA ”). The trial judge held that the prohibition on non‑dried forms of medical marihuana unjustifiably infringes s. 7 of the Charter and a majority of the Court of Appeal dismissed the appeal.

Held: The appeal should be dismissed, the Court of Appeal’s suspension of the declaration of invalidity deleted and S’s acquittal affirmed.

S has standing to challenge the constitutionality of the MMARs. Accused persons have standing to challenge the constitutionality of the law under which they are charged, even if the alleged unconstitutional effects are not directed at them, or even if not all possible remedies for the constitutional deficiency will end the charges against them.

The prohibition on possession of non‑dried forms of medical marihuana limits the s. 7 Charter right to liberty of the person in two ways. First, the prohibition deprives S as well as medical marihuana users of their liberty by imposing a threat of imprisonment on conviction under s. 4(1) or 5(2) of the CDSA . Second, it limits the liberty of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution. Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringes security of the person.

These limits are contrary to the principles of fundamental justice because they are arbitrary; the effects of the prohibition contradict the objective of protecting health and safety. The evidence amply supports the trial judge’s conclusions that inhaling marihuana can present health risks and that it is less effective for some conditions than administration of cannabis derivatives. In other words, there is no connection between the prohibition on non‑dried forms of medical marihuana and the health and safety of the patients who qualify for legal access to medical marihuana.

In this case, the objective of the prohibition is the same under both the ss. 7 and 1 Charter analyses: the protection of health and safety. It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the limit on the right be rationally connected to a pressing objective. The infringement of s. 7 is therefore not justified under s. 1 .

However, ss. 4 and 5 of the CDSA should not be struck down in their entirety. The appropriate remedy is a declaration that these provisions are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes; however, that declaration is not suspended because it would leave patients without lawful medical treatment and the law and law enforcement in limbo.

Cases Cited

Referred to: R. v. Parker (2000), 146 C.C.C. (3d) 193; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Latchmana, 2008 ONCJ 187, 170 C.R.R. (2d) 128; R. v. Clay (2000), 49 O.R. (3d) 577; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hitzig v. Canada (2003), 231 D.L.R. (4th) 104; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Oakes, [1986] 1 S.C.R. 103.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 1 , 7 .

Constitution Act, 1982 , s. 52 .

Controlled Drugs and Substances Act, S.C. 1996, c. 19 , ss. 4 , 5 , 19 , 55 .

Food and Drugs Act, R.S.C. 1985, c. F‑27 .

Marihuana for Medical Purposes Regulations, SOR/2013‑119.

Marihuana Medical Access Regulations, SOR/2001‑227 [rep. 2013‑119, s. 267], ss. 1 “dried marihuana”, 24, 34.

APPEAL from a judgment of the British Columbia Court of Appeal (Levine, Chiasson and Garson JJ.A.), 2014 BCCA 322, 360 B.C.A.C. 66, 617 W.A.C. 66, 315 C.C.C. (3d) 36, 316 C.R.R. (2d) 205, 14 C.R. (7th) 81, [2014] B.C.J. No. 2097 (QL), 2014 CarswellBC 2383 (WL Can.), setting aside in part a decision of Johnston J., 2012 BCSC 544, 290 C.C.C. (3d) 91, 257 C.R.R. (2d) 129, [2012] B.C.J. No. 730 (QL), 2012 CarswellBC 1043 (WL Can.). Appeal dismissed.

W. Paul Riley, Q.C., and Kevin Wilson, for the appellant.

Kirk I. Tousaw, John W. Conroy, Q.C., Matthew J. Jackson and Bibhas D. Vaze, for the respondent.

Julius H. Grey and Geneviève Grey, for the intervener Santé Cannabis.

Gerald Chan and Nader R. Hasan, for the intervener the Criminal Lawyers’ Association (Ontario).

Andrew K. Lokan and Debra McKenna, for the intervener the Canadian Civil Liberties Association.

Jason B. Gratl, for the intervener the British Columbia Civil Liberties Association.

Written submissions only by Paul Burstein, Ryan Peck and Richard Elliott, for the interveners the Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario.

 

 

The following is the judgment delivered by

 

The Court —

[1]                              Regulations under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA ”), permit the use of marihuana for treating medical conditions.  However, they confine medical access to “dried marihuana”, so that those who are legally authorized to possess marihuana for medical purposes are still prohibited from possessing cannabis products extracted from the active medicinal compounds in the cannabis plant.  The result is that patients who obtain dried marihuana pursuant to that authorization cannot choose to administer it via an oral or topical treatment, but must inhale it, typically by smoking. Inhaling marihuana can present health risks and is less effective for some conditions than administration of cannabis derivatives.

[2]                              The parties accept the conclusion of the Ontario Court of Appeal in R. v. Parker (2000), 146 C.C.C. (3d) 193, that a blanket prohibition on medical access to marihuana infringes the Canadian Charter of Rights and Freedoms . This appeal requires us to decide whether a medical access regime that only permits access to dried marihuana unjustifiably violates the guarantee of life, liberty and security of the person contrary to s. 7 of the Charter .  The British Columbia courts ruled it did, and we agree.

I.              Background

[3]                              The CDSA prohibits the possession, production, and distribution of cannabis, its active compounds, and its derivatives.  In recognition of the fact that controlled substances may have beneficial uses, the CDSA empowers the government to create exemptions by regulation for medical, scientific or industrial purposes (s. 55 ).  The Marihuana Medical Access Regulations, SOR/2001-227 (“MMARs”), created such an exemption for people who could demonstrate a medical need for cannabis.  Applicants had to provide a declaration from a medical practitioner certifying that conventional treatments were ineffective or medically inappropriate for treatment of their medical condition.  Once they had met all the regulatory requirements, patients were legally authorized to possess “dried marihuana”, defined as “harvested marihuana that has been subjected to any drying process” (s. 1 ).  Some patients were authorized to grow their own marihuana, under a personal-use production licence (s. 24), while others obtained the drug from a designated licensed producer (s. 34).

[4]                              The MMARs were replaced in 2013 with the Marihuana for Medical Purposes Regulations, SOR/2013-119 (“MMPRs”).  The new regime replaces the marihuana production scheme in the MMARs with a system of government-licensed producers.  For the purposes of this appeal, however, the situation remains unchanged: for medical marihuana patients, the exemption from the CDSA offence is still confined to dried marihuana.

[5]                              The accused, Owen Edward Smith, worked for the Cannabis Buyers Club of Canada, located on Vancouver Island, in British Columbia.  The Club sold marihuana and cannabis derivative products to members — people the Club was satisfied had a bona fide medical condition for which marihuana might provide relief, based on a doctor’s diagnosis or laboratory test.  It sold not only dried marihuana for smoking, but edible and topical cannabis products — cookies, gel capsules, rubbing oil, topical patches, butters and lip balms.  It also provided members with recipe books for how to make such products by extracting the active compounds from dried marihuana.  Mr. Smith’s job was to produce edible and topical cannabis products for sale by extracting the active compounds from the cannabis plant.  Mr. Smith does not himself use medical marihuana, and the Club did not have a production licence under the MMARs.

[6]                              On December 3, 2009, the police, responding to a complaint about an offensive smell, paid Mr. Smith a visit at his apartment in Victoria, and saw marihuana on a table.  They obtained a search warrant and seized the apartment’s inventory, which included 211 cannabis cookies, a bag of dried marihuana, and 26 jars of liquids whose labels included “massage oil” and “lip balm”.  Laboratory testing established that the cookies and the liquid in the jars contained tetrahydrocannabinol (“THC”), the main active compound in cannabis. THC, like the other active compounds in cannabis, does not fall under the MMARs exemption for dried marihuana. The police charged Mr. Smith with possession of THC for the purpose of trafficking contrary to s. 5(2) of the CDSA , and possession of cannabis contrary to s. 4(1) of the CDSA .

[7]                              At his trial before Johnston J., Mr. Smith argued that the CDSA prohibition on possession, in combination with the exemption in the MMARs, was inconsistent with s. 7 of the Charter and unconstitutional because it limits lawful possession of marihuana for medical purposes to “dried marihuana”.  Many witnesses, expert and lay, were called.  At the end of the voir dire, the judge made the following findings (2012 BCSC 544, 290 C.C.C. (3d) 91):

(1)      The active compounds of the cannabis plant, such as THC and cannabidiol, have established medical benefits and their therapeutic effect is generally accepted, although the precise basis for the benefits has not yet been established.

(2)   Different methods of administering marihuana offer different medical benefits.  For example, oral ingestion of the active compounds, whether by way of products baked with THC-infused oil or butter, or gel capsules filled with the active compounds, may aid gastro-intestinal conditions by direct delivery to the site of the pathology.  Further, oral administration results in a slower build-up and longer retention of active compounds in the system than inhaling, allowing the medical benefits to continue over a longer period of time, including while the patient is asleep.  It is therefore more appropriate for chronic conditions.

(3)   Inhaling marihuana, typically through smoking, provides quick access to the medical benefits of cannabis, but also has harmful side effects.  Although less harmful than tobacco smoke, smoking marihuana presents acknowledged risks, as it exposes patients to carcinogenic chemicals and is associated with bronchial disorders.

[8]                              The trial judge found that the restriction to dried marihuana deprives Mr. Smith and medical marihuana users of their liberty by imposing a threat of prosecution and incarceration for possession of the active compounds in cannabis. He also found that it deprives medical users of the liberty to choose how to take medication they are authorized to possess, a decision which he characterized as “of fundamental personal importance”, contrary to s. 7 of the Charter (para. 88). These limits offend the principles of fundamental justice because they are arbitrary; limiting the medical exemption to dried marihuana does “little or nothing” to enhance the state’s interest in preventing diversion of illegal drugs or in controlling false and misleading claims of medical benefit (para. 114).  For the same reason, the trial judge held that the restriction is not rationally connected to its objectives, and hence not justified under s. 1 of the Charter .

[9]                              The majority of the Court of Appeal upheld the trial judge’s conclusions on the evidence and the constitutional issues, although it characterized the object of the prohibition more broadly, as the protection of health and safety (2014 BCCA 322, 360 B.C.A.C. 66).  Chiasson J.A., dissenting, held that Mr. Smith did not have standing to raise the constitutional issue, and that in any event the restriction did not violate s. 7 because medical users could legally convert dried marihuana into other forms.

II.           Discussion

[10]                          Three issues arise: Mr. Smith’s standing to challenge the constitutionality of the prohibition; the constitutionality of the prohibition; and the appropriate remedy.

A.           Standing

[11]                          The first question is whether Mr. Smith has standing to challenge the constitutionality of the prohibition.  We conclude that he does. The Crown took no issue with Mr. Smith’s standing at trial. On appeal, although the issue was canvassed in oral argument, the Crown acknowledged that the principle “that no one can be convicted of an offence under an unconstitutional law” applied to Mr. Smith (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 313; C.A. reasons, at para. 147).  Before this Court, the Crown adopted Chiasson J.A.’s dissenting position, arguing that Mr. Smith does not have standing because he does not himself use medical marihuana and operated outside the regulatory scheme. The restriction to dried marihuana therefore has “nothing to do with him” (C.A. reasons, at para. 151).

[12]                          This overlooks the role the MMARs play in the statutory scheme.  They operate as an exception to the offence provisions under which Mr. Smith was charged, ss. 4 and 5 of the CDSA .  As the majority of the Court of Appeal said, the issue is whether those sections of the CDSA , “as modified by the MMARs, deprive people authorized to possess marijuana of a constitutionally protected right by restricting the exemption from criminal prosecution to possession of dried marijuana” (para. 85).  Nor does the fact that Mr. Smith is not a medical marihuana user and does not have a production licence under the regime mean he has no standing.  Accused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them: R. v. Morgentaler, [1988] 1 S.C.R. 30; Big M Drug Mart.  Nor need accused persons show that all possible remedies for the constitutional deficiency will as a matter of course end the charges against them. In cases where a claimant challenges a law by arguing that the law’s impact on other persons is inconsistent with the Charter , it is always possible that a remedy issued under s. 52 of the Constitution Act, 1982 will not touch on the claimant’s own situation: see R. v. Latchmana, 2008 ONCJ 187, 170 C.R.R. (2d) 128, at para. 16; R. v. Clay (2000), 49 O.R. (3d) 577 (C.A.).

[13]                          In this case, the constitutionality of the statutory provision under which Mr. Smith is charged is directly dependent on the constitutionality of the medical exemption provided by the MMARs: see Parker.  He is therefore entitled to challenge it.

B.            The Constitutionality of the Prohibition

[14]                          This appeal asks the Court to determine whether restricting medical access to marihuana to dried marihuana violates s. 7 of the Charter :

 

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[15]                          Section 7 permits the law to limit life, liberty and security of the person, provided it does so in a way that is not contrary to the principles of fundamental justice.

[16]                          The first question in the s. 7 analysis is whether the law limits life, liberty or security of the person.  We conclude that it does. The legislative scheme’s restriction of medical marihuana to dried marihuana limits s. 7 rights in two ways.

[17]                          First, the prohibition on possession of cannabis derivatives infringes Mr. Smith’s liberty interest, by exposing him to the threat of imprisonment on conviction under s. 4(1) or 5(2) of the CDSA . Any offence that includes incarceration in the range of possible sanctions engages liberty: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 515.  The prohibition also engages the liberty interest of medical marihuana users, as they could face criminal sanctions if they produce or possess cannabis products other than dried marihuana.  We cannot accede to the dissenting judge’s position on this point: the MMARs do not authorize medical marihuana users to convert dried marihuana into its active compounds.  An authorization to possess medical marihuana is no defence for a patient found in possession of an alternate dosage form, such as cannabis cookies, THC-infused massage oil, or gel capsules filled with THC.

[18]                          Second, the prohibition on possession of active cannabis compounds for medical purposes limits liberty by foreclosing reasonable medical choices through the threat of criminal prosecution: Parker, at para. 92.  In this case, the state prevents people who have already established a legitimate need for marihuana — a need the legislative scheme purports to accommodate — from choosing the method of administration of the drug.  On the evidence accepted by the trial judge, this denial is not trivial; it subjects the person to the risk of cancer and bronchial infections associated with smoking dry marihuana, and precludes the possibility of choosing a more effective treatment.  Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the law also infringes security of the person: Morgentaler; Hitzig v. Canada (2003), 231 D.L.R. (4th) 104 (Ont. C.A.).

[19]                          The Crown says that the evidence adduced on the voir dire did not establish that the prohibition on alternative forms of cannabis intruded on any s. 7 interest, beyond the deprivation of physical liberty imposed by the criminal sanction. It says that the evidence did not prove that alternative forms of medical marihuana had any therapeutic benefit; at most it established that the patient witnesses preferred cannabis products to other treatment options.  This submission runs counter to the findings of fact made by the trial judge.  After a careful review of extensive expert and personal evidence, the trial judge concluded that in some circumstances the use of cannabis derivatives is more effective and less dangerous than smoking or otherwise inhaling dried marihuana. A trial judge’s conclusions on issues of fact cannot be set aside unless they are unsupported by the evidence or otherwise manifestly in error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.  The evidence amply supports the trial judge’s conclusions on the benefits of alternative forms of marihuana treatment; indeed, even the Health Canada materials filed by the Crown’s expert witness indicated that oral ingestion of cannabis may be appropriate or beneficial for certain conditions.

[20]                          The expert evidence, along with the anecdotal evidence from the medical marihuana patients who testified, did more than establish a subjective preference for oral or topical treatment forms.  The fact that the lay witnesses did not provide medical reports asserting a medical need for an alternative form of cannabis is not, as the Crown suggests, determinative of the analysis under s. 7 .  While it is not necessary to conclusively determine the threshold for the engagement of s. 7 in the medical context, we agree with the majority at the Court of Appeal that it is met by the facts of this case.  The evidence demonstrated that the decision to use non-dried forms of marihuana for treatment of some serious health conditions is medically reasonable.  To put it another way, there are cases where alternative forms of cannabis will be “reasonably required” for the treatment of serious illnesses (C.A. reasons, at para. 103). In our view, in those circumstances, the criminalization of access to the treatment in question infringes liberty and security of the person.

[21]                          We conclude that the prohibition on possession of non-dried forms of medical marihuana limits liberty and security of the person, engaging s. 7 of the Charter .  This leaves the second question — whether this limitation is contrary to the principles of fundamental justice.

[22]                          The trial judge found that the limits on liberty and security of the person imposed by the law were not in accordance with the principles of fundamental justice, because the restriction was arbitrary, doing “little or nothing” to further its objectives, which he took to be the control of illegal drugs or false and misleading claims of medical benefit.  The majority of the Court of Appeal, which found that the objective of the prohibition was the protection of public health and safety (relying on Hitzig and Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134), likewise concluded it did not further that objective and was thus arbitrary and contrary to the principles of fundamental justice.

[23]                          It is necessary to determine the object of the prohibition, since a law is only arbitrary if it imposes limits on liberty or security of the person that have no connection to its purpose: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 98.

[24]                          The Crown does not challenge the Court of Appeal’s conclusion that the object of the prohibition on non-dried forms of medical marihuana is the protection of health and safety.  However, it goes further, arguing that the restriction protects health and safety by ensuring that drugs offered for therapeutic purposes comply with the safety, quality and efficacy requirements set out in the Food and Drugs Act, R.S.C. 1985, c. F-27 , and its regulations.  This qualification does not alter the object of the prohibition; it simply describes one of the means by which the government seeks to protect public health and safety.  Moreover, the MMARs do not purport to subject dried marihuana to these safety, quality and efficacy requirements, belying the Crown’s assertion that this is the object of the prohibition. We therefore conclude that the object of the restriction to dried marihuana is simply the protection of health and safety.

[25]                          The question is whether there is a connection between the prohibition on non-dried forms of medical marihuana and the health and safety of the patients who qualify for legal access to medical marihuana.  The trial judge concluded that for some patients, alternate forms of administration using cannabis derivatives are more effective than inhaling marihuana.  He also concluded that the prohibition forces people with a legitimate, legally recognized need to use marihuana to accept the risk of harm to health that may arise from chronic smoking of marihuana.  It follows from these findings that the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care.  The effects of the prohibition contradict its objective, rendering it arbitrary: see Bedford, at paras. 98-100.

[26]                          The Crown says there are health risks associated with extracting the active compounds in marihuana for administration via oral or topical products.  It argues that there is a rational connection between the state objective of protecting health and safety and a regulatory scheme that only allows access to drugs that are shown by scientific study to be safe and therapeutically effective.  We disagree.  The evidence accepted at trial did not establish a connection between the restriction and the promotion of health and safety.  As we have already said, dried marihuana is not subject to the oversight of the Food and Drugs Act regime.  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.  Moreover, the Crown provided no evidence to suggest that it would. In fact, as noted above, some of the materials filed by the Crown mention oral ingestion of cannabis as a viable alternative to smoking marihuana.

[27]                          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.  This renders it arbitrary: see Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 83.

[28]                          We conclude that the prohibition of non-dried forms of medical marihuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice.  It therefore violates s. 7 of the Charter .

[29]                          The remaining question is whether the Crown has shown this violation of s. 7 to be reasonable and demonstrably justified under s. 1 of the Charter . As explained in Bedford, the s. 1 analysis focuses on the furtherance of the public interest and thus differs from the s. 7 analysis, which is focused on the infringement of the individual rights: para. 125.  However, in this case, the objective of the prohibition is the same in both analyses: the protection of health and safety.  It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the limit on the right be rationally connected to a pressing objective (R. v. Oakes, [1986] 1 S.C.R. 103). Like the courts below, we conclude that the infringement of s. 7 is not justified under s. 1 of the Charter .

C.            Remedy

[30]                          A law is “of no force or effect” to the extent it is inconsistent with the guarantees in the Charter : s. 52 of the Constitution Act, 1982 .  We have concluded that restricting medical access to marihuana to its dried form is inconsistent with the Charter . It follows that to this extent the restriction is null and void.

[31]                          The precise form the order should take is complicated by the fact that it is the combination of the offence provisions and the exemption that creates the unconstitutionality.  The offence provisions in the CDSA should not be struck down in their entirety. Nor is the exemption, insofar as it goes, problematic — the problem is that it is too narrow, or under-inclusive.  We conclude that the appropriate remedy is a declaration that ss. 4 and 5 of the CDSA are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.

[32]                          We would reject the Crown’s request that the declaration of invalidity be suspended to keep the prohibition in force pending Parliament’s response, if any.  (What Parliament may choose to do or not do is complicated by the variety of available options and the fact that the MMARs have been replaced by a new regime.)  To suspend the declaration would leave patients without lawful medical treatment and the law and law enforcement in limbo.  We echo the Ontario Court of Appeal in Hitzig, at para. 170: “A suspension of our remedy would simply [continue the] undesirable uncertainty for a further period of time.”

III.        Disposition

[33]                          We would dismiss the appeal, but vary the Court of Appeal’s order by deleting the suspension of its declaration and instead issue a declaration that ss. 4 and 5 of the CDSA are of no force and effect to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.

[34]                          At no point in the course of these proceedings did the British Columbia courts or this Court issue a declaration rendering the charges against Mr. Smith unconstitutional.  In fact, following the voir dire, the trial judge refused to grant a judicial stay of proceedings.  Despite this, the Crown chose not to adduce any evidence at trial.  As a result of the Crown’s choice, Mr. Smith was acquitted.  We see no reason why the Crown should be allowed to reopen the case following this appeal.  Mr. Smith’s acquittal is affirmed.

 

 

 

Appeal dismissed.

Solicitor for the appellant: Public Prosecution Service of Canada, Vancouver.

Solicitors for the respondent: Tousaw Law Corporation, Duncan, British Columbia; Conroy and Company, Abbotsford; Henshall Scouten, Vancouver; Bibhas D. Vaze, Vancouver.

Solicitors for the intervener Santé Cannabis: Grey Casgrain, Montréal.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Ruby Shiller Chan Hasan, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Paliare Roland Rosenberg Rothstein, Toronto.

Solicitors for the intervener the British Columbia Civil Liberties Association: Gratl & Company, Vancouver.

Solicitors for the interveners the Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario: Burstein Bryant Barristers, Toronto; HIV & AIDS Legal Clinic Ontario, Toronto; Canadian HIV/AIDS Legal Network, Toronto.

Topics: Articles | Comments Off

Canadian Supreme Court Votes Unanimously To Broaden Definition Of Medical Marijuana To Include Derivatives

By admin | June 11, 2015

by Ted Smith

 

Thurs June 11, 2015

Victoria, B.C.: In a unanimous decision the Supreme Court of Canada has ruled that patients should have legal access to cannabis derivatives in a case involving former head baker of the Victoria Cannabis Buyers Club, Owen Smith. The ruling takes effect immediately across the country. A press conference to discuss details of the decision and the trial will take place at the VCBC at 11 am.

In Dec 2009, Owen was arrested making cookies for patients of the VCBC and was charged with possession for the purposes of trafficking THC, the most active chemical in the cannabis plant. Since the beginning of its medical cannabis programs, Health Canada has given patients an authorization to possess and grow cannabis for medical reasons, but has prohibited them from extracting the resins or other active chemicals by making tea, hash or butter to make cookies. For many patients, especially children and the elderly, using cannabis extracts is the only reasonable method of ingestion.

Today’s ruling also confirmed the principle that no one can be convicted of an unconstitutional law, a concept not accepted by some of the lower court judges that dealt with this case. The SCC is very clear in its ruling, stating that a defendant can argue a law violates the rights of others, even if the breach does not directly affect them.

While it is unclear how quickly Health Canada will react to this ruling, there is no doubt many Licensed Producers will be keen to produce cannabis suppositories, capsules and creams. Ironically, though it was a dispensary that fought this case to the high court, storefront compassion clubs have never been part of the federal government’s programs and any changes to the regulations resulting from this decision will likely benefit Licensed Producers. In the meantime, though, patients are safe from the law when they make tea, hash or cookies with their cannabis, if they could legally possess the herb in the first place.

For more information call 250-381-4220 or email hempo101@gmail.com.

http://scc-csc.lexum.com/scc-…/scc-csc/…/item/15403/index.do

https://www.youtube.com/watch?v=UoiTvCSj70E

http://forum.cannabisdigest.ca/viewtopic.php?f=5&t=5370

Topics: Articles | Comments Off

Will Owen Smith Change The Law On June 11?

By admin | June 8, 2015

By Ted Smith

Mon June 8, 2015

Victoria, B.C.: On Thurs June 11, 2015, the Supreme Court of Canada will hand down its decision in the trial of Owen Smith, former head baker for the Victoria Cannabis Buyers Club.  This is the first time the highest court in the land has ruled on a medical cannabis case.  A press conference will be held Thurs morning at the Victoria Cannabis Buyers Club, 826 Johnsons St, at 11am to explain how this decision will impact the distribution of cannabis as medicine.

In Dec 2009, Owen was arrested making cookies for patients of the VCBC and was charged with possession for the purposes of trafficking THC, the most active chemical in the cannabis plant.  Since the beginning of its medical cannabis programs, Health Canada has given patients an authorization to possess and grow cannabis for medical reasons, but has prohibited them from extracting the resins or other active chemicals by making tea, hash or butter to make cookies.  For many patients, especially children and the elderly, using cannabis extracts is the only reasonable method of ingestion.

Lawyer Kirk Tousaw, with the help of expert witness Dr. David Pate and 4 patient witnesses, convinced a Supreme Court of BC judge that the laws were unconstitutional because they violate a patient’s security of the person for no valid purpose.  In a 2-1 decision last year, the BC Court of Appeal agreed, while affirming the concept that no one can be convicted on an unconstitutional law, even if the violation does not affect them directly.  Unwilling to accept defeat on this matter, the federal government appealed to the Supreme Court of Canada.

A video of the SCC hearing is available on the Youtube channel provided below.  It seems clear from the questions of the esteemed judges that the government’s position that smoked cannabis is safer because it has been studied more.  While it is unclear what remedy the high court may try and steer the federal government towards, many are convinced this decision will change the direction of the medical cannabis industry in Canada by allowing a broad range of new products to become available.

For more information call 250-381-4220 or email hempo101@gmail.com.

https://www.youtube.com/watch?v=UoiTvCSj70E

http://www.scc-csc.gc.ca/case-dossier/info/sum-som-eng.aspx?cas=36059

http://forum.cannabisdigest.ca/viewtopic.php?f=5&t=5370

Topics: Articles | Comments Off

Victoria City Council Votes on Regulating Cannabis Dispensaries May 14th 2015 (Extended)

By admin | May 27, 2015

Topics: Articles | Comments Off

Victoria City Council on Cannabis Dispensaries May 14, 2015

By admin | May 22, 2015

Topics: Articles | Comments Off

Pot Buyers Club Backs Regulation

By admin | May 13, 2015

Pot Buyers Club Backs Regulation

 

The Victoria Cannabis Buyers Club is throwing its support behind the City of Victoria’s efforts to regulate the increasing amount of marijuana shops in town.

“We’re very supportive of the direction the city is taking. This is something that the oldest of dispensaries have been asking for, for more than 20 years, some form of regulation,” said Dieter Macpherson, advisor to the Canadian Association of Medical Cannabis Dispensaries and executive director of the Victoria Cannabis Buyers Club.

During a meeting last week, city council voted in favour of moving towards a regulatory approach to marijuana-related dispensaries.

Council has directed staff to draft new business and zoning bylaws that would regulate businesses that sell marijuana. Amendments could include imposing annual $30,000 business licence fees specific to the type of business, regulations regarding signs and merchandise in storefront windows, record keeping, limits on hours of operation and regulation to minors on the premises.

According to Macpherson, the proposed regulations shouldn’t have an effect on club patients.

“We have to see how the regulations end up looking. We expect that we will participate in any public discussion of forum, so that we can ensure we’re still able to serve the people that we do,” said he, adding that the proposed $30,000 business licensing fees are issues he thinks council can be moved on.

“There’s no reason that dispensaries shouldn’t be treated like any other business, especially when it comes to community impact,” said Macpherson.

The motion comes in response to a staff report brought to council stating the number of unlicensed medical marihuana dispensaries has increased significantly in the past year. According to the report, there are 18 medical marijuana-related shops, of which only seven are operating with a license.

The businesses have also generated a number of complaints from nearby businesses, regarding increased foot traffic, odour and exposure of youth to the sale of marijuana.

Coun. Ben Isitt, who put forward the motion at council, said he hopes the regulations will not have an effect on long-standing establishments such as the Victoria Cannabis Buyers Club, but will provide a framework for regulation of the substance.

“I expect, what a regulatory system will do is provide a pathway to compliance, rather than treating these establishments as outlawed establishments,” said Isitt. “I hope it has a minimal affect on long-standing establishments like the Cannabis Buyers Club. I think they have a proven track record of operating responsible in the community and providing a source of medicine to people experiencing pain.”

Isitt said the report by staff will be “substantial” in size and that it is a priority of city council’s.

Mayor Lisa Helps said a town hall meeting is expected to be scheduled with community stakeholders as well.

Topics: Articles | Comments Off

Supreme Court of Canada – Cannabis Extracts – RvSmith – Mar 20th 2015 Pts 1 thru 3

By admin | April 27, 2015

The Defense Team

The VCBC’s Day In Court Literally !  Well Worth Watching ! Enjoy ! https://youtu.be/qIw6k19csSU

Topics: Articles | Comments Off

High court to decide right to pot cookies

By admin | March 17, 2015

vicnews.com

High court to decide right to pot cookies

Canada’s high court will weigh the constitutional rights of medical marijuana users for the first time on Friday.

At stake in the case before the Supreme Court of Canada is whether approved legal cannabis users can be restricted to just using dried marijuana – the only authorized product under the new system of regulated producers – and denied access to oil extracts and other options, such as pot brownies and cookies.

It flows from the 2009 drug trafficking arrest of Owen Smith, a Victoria man who baked pot into various edibles for a cannabis buyers’ club.

Medical pot patients have twice convinced lower courts in B.C. that it’s unconstitutional for them to be denied their medicine in different forms if they cannot or do not wish to smoke it.

The B.C. Court of Appeal split 2-1 on the issue last August, agreeing federal regulations should simply state “marijuana” instead of “dried marijuana” but said actual changes to legislation should come from Parliament.

Health Canada has so far refused to authorize alternative medical marijuana products.

“Other means that don’t involve smoking are less problematic for health,” said Abbotsford lawyer John Conroy, calling the restriction inconsistent with the medical marijuana regulation’s goal of protecting health.

He said alternative forms are more effective for some people.

“Sick people trying to enhance their quality of life should not be criminalized for their choice of medicine,” said lawyer Kirk Tousaw, who represents Smith.

He will argue the current law limiting authorized users to dried marijuana restricts the choice of treatment for serious illnesses and therefore violates the charter right to life, liberty and security of the person.

Tousaw will urge the top court to simply exempt medical marijuana possession from the Controlled Drugs and Substances Act.

Medical pot could then still be regulated by other means by Ottawa, he said, but its users would be shielded from criminal prosecution.

“You can keep your outdated, ineffective prohibition on recreational marijuana consumers and producers. But let’s take sick people off the front lines of this ridiculous war on this plant.”

Police and federal authorities object because, unlike a bag of dried bud, it’s difficult to readily determine if personal possession limits are exceeded with products or extracts like brownies, cookies, oils and topical creams.

Tousaw insists it’s a red herring and other jurisdictions have dealt with that issue.

“To our immediate south in Washington, you can access all of these products, medically or recreationally, without fear of criminal sanction.”

The one-day Supreme Court hearing on March 20 is just one legal front in in a war

between pot advocates and the federal government over how medical marijuana is controlled.

The other key battleground is in Federal Court, where Conroy has sought to overturn the federal government’s ban on personal home growing by licensed users, which has continued under an injunction pending the outcome of the case.

He is also making a constitutional argument on behalf of users who say they cannot afford to buy commercially grown marijuana under Ottawa’s new system and that it denies them control over the strains they use.

The court heard conflicting evidence last week from fire chiefs from Surrey and Fort McMurray on the severity of public safety risks from authorized home grows.

Conroy will argue Ottawa has insufficient justification for the ban in closing arguments set for the end of April.

A win at the Supreme Court of Canada would likely have major implications for the case on home growing, Tousaw said, and could finally force reforms that the government has resisted, despite 15 years of litigation.

“Canadians have had to fight for every inch they’ve been able to get in court and the system continues to cause people to suffer in an arbitrary way that’s unrelated to protecting health and public safety.”

 

Topics: Articles | Comments Off


« Previous Entries