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Ian Mulgrew: Judges mull legality of hash brownies for medical users

By admin | December 14, 2013

Ian Mulgrew: Judges mull legality of hash brownies for medical users


Appeal: Ottawa wants the B.C. Appeal Court to overturn a lower-court ruling that allows such users to ingest their marijuana as they choose


B.C.’s highest judges are mulling whether there’s a constitutional right to tasty pot cookies and other marijuana products such as infused oils, balms and lotions.

But first the Court of Appeal panel must decide whether the head baker of a Victoria compassion club can claim that right since Owen Smith was not part of the medical marijuana program.

The three justices — Ed Chiasson, Risa Levine and Nicole Garson — grilled lawyers Friday about why Smith was allowed to raise such a challenge; wasn’t he an ordinary drug trafficker?

Both Paul Riley, of the federal prosecution service, and Smith’s lawyer Kirk Tousaw said that they believed the Supreme Court of Canada ruled in 1988 that no one can be convicted under a law that was unconstitutional even if their rights are not infringed.

By analogy, the lawyers explained, Henry Morgentaler didn’t need an abortion and wasn’t personally affected by the Criminal Code restriction on access, but his challenge led to the law being declared unconstitutional as a violation of women’s rights.

Still, the application of the principle was questionable here, Riley added, as it was in some others.

He said a recent human trafficking case was under appeal on the same point because a judge ruled Tamil snakeheads couldn’t be prosecuted because the law was unconstitutional as it was so broad it could apply to humanitarians smuggling refugees.

In this case, Ottawa wants the court to reverse a B.C. Supreme Court ruling. The lower court had ruled that the medical marijuana regulations were unconstitutional because patients were denied access to edible pot products and derivatives — such as creams, salves, oils, brownies, cakes, cookies and chocolate bars.

Riley said the court decision authorized for lawful B.C. patients the possession and production of all cannabis preparations and derivatives including, THC, oils and hashish.

Smith was caught baking 200-plus pot cookies, had a supply of cannabis-infused cooking oils and some dried dope in his apartment.

He was acquitted in 2012 after Justice Robert Johnston concluded 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.

“It creates a climate in which the only sources of medicinal cannabis products are unlawful and forces seriously ill Canadians to consort with the black market in order to obtain these medicines,” Tousaw said.

Johnston had heard evidence 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.

While Tousaw complained patients who made a cup of tea out of dried marijuana were breaking the law and risking jail, Riley maintained that the government was not legislating how people consumed their pot and was not forcing them to smoke it.

People could use vaporizers, which allow the active ingredients to be inhaled but not the plant carbons; he also pointed to the availability of pharmaceutical cannabis products — including a nasal spray utilizing whole plant compounds if they objected to a synthesized product.

“There’s no constitutional right to a prefer an illegal treatment over a legal one,” Riley reiterated. “The constitutionally protected freedom to make decisions of fundamental importance concerning personal health and safety does not include a constitutional right to obtain drugs or controlled substances in a form or manner of one’s own choosing, regardless of medical need, or availability of reasonable alternative treatments.”

Johnston made major mistakes and his decision was wrong, the federal lawyer added.

The constitutional protection, Riley said, is available only to those who require marijuana for a serious life-threatening condition.

The Supreme Court of Canada already has upheld the constitutionality of the criminal prohibition, he concluded, and the medical program meets the demands of previous court rulings.

Ottawa recently overhauled the medical marijuana system but the new scheme that comes into effect April 1 also only provides for the sale and distribution of dried cannabis.

The justices reserved their decision.

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