A British Columbia Court of Appeals ruled that it is unconstitutional to forbid licensed medical marijuana users from possessing edibles and creams made with cannabis extract. Now the Canadian Parliament has a year to rewrite its regulations.
Health Canada, the country’s public health department, currently allows people suffering from debilitating illnesses to use medicinal marijuana, but only in dried form. The law prevents people from consuming their prescription in butters, baked goods or drinks. But the highest court in the province of British Columbia upheld a lower court decision that the dried-form restriction is unconstitutional in its ruling on Thursday. “The provision is arbitrary and cannot be justified in a free and democratic society,” the appeals court wrote in its findings.
In 2009, police raided the bakery for the Cannabis Buyers Club of Canada (CBCC), which has been supplying medical cannabis to people with permanent physical disabilities or diseases since 1996. The then-head baker for the group, Owen Smith, was in the process of baking 200 pot cookies for the Victoria Cannabis Buyers Club (VCBC), CBC News reported. Authorities charged him with possession for the purposes of trafficking of tetrahydrocannabinol (THC), one of marijuana’s active compounds, as well as possession of dried marijuana. The dried version was less than an ounce and “it was obviously for personal use,” the Cannabis Digest reported. Smith does not have a medical condition that requires him to use marijuana, according to court documents.
In his criminal trial, Smith argued that Health Canada’s Marijuana Medical Access Regulations (MMARs) were unconstitutional because “they fail to allow people with a medical need the ability to possess cannabis in forms other than the dried plant material.” The defendant, along with the CBCC and some of its members, said that edible products were “much more effective” than smoking pot to treat “some medical conditions.” Four club members, referred to as “patient witnesses,” testified to the efficacy of the non-dried medical marijuana.
In April 2012, British Columbia Supreme Court Justice Robert Johnston agreed, finding the MMARs breached the right to liberty and security of the person. The ruling struck the word “dried” and definition of “dried marijuana” from the regulations “to remedy the unconstitutional restriction,” the current decision read.
Smith was subsequently acquitted of the charges against him when the Canadian government ‒ called the Crown in the court documents ‒ called no evidence. The Crown then appealed the ruling of unconstitutionality, saying that the defendant had no standing because he was not officially part of the medical marijuana program, Leaf Science reported. The government then sought a new trial for him.
Thursday's 2-1 ruling by the Court of Appeals means Smith’s acquittal stands and he will not be retried, CBC News reported.
In her written reasons, Justice Risa Levine said that, when patients chose edible forms of marijuana over dried, it "was a matter of necessity, or put another way, the restriction to dried marijuana interfered with their physical or psychological integrity."
But the Court of Appeals decision differed from the Supreme Court’s. Instead of simply striking the word “dried” from the MMARs (now called the Marihuana for Medical Purposes Regulations of MMPRs), the three-member panel is giving legislators in Ottawa one year to review the rules.
“The court disagreed with the remedy imposed by the trial judge and modified that remedy to simply strike the dried marijuana provisions in the regulatory scheme and gave Parliament a one year to respond,” Smith’s lawyer, Kirk Tousaw, said in the VCBC statement. “It is unclear what impact that one-year suspension is going to have because obviously the MMAR no longer exist.”
For his part, Smith’s “message to Canadians is simple,” according to the VCBC.
“I want sick people to know that there are people in society who they may not know personally, but who care about them enough to put their freedoms on the line,” Smith said in the statement.