VANCOUVER – British Columbia’s highest court is green-lighting medical marijuana in everything from oils and cookies to teas in a ruling that finds federal health laws limiting weed consumption to the dried variety is unconstitutional.
The B.C. Appeal Court released its 2-1 decision on Thursday stating that medical marijuana access regulations infringe on the charter rights of people requiring other forms of cannabis to treat illnesses.
The ruling upheld a decision by a lower court judge over the case of Owen Smith, a Victoria man who was charged in 2009 with possession for trafficking of THC — marijuana’s active compound — while working as head baker for the Cannabis Buyers Club of Canada.
Smith challenged the law by arguing some patients want to consume their marijuana medicine in butters, brownies, cookies and teas, claiming the right to administer the drug in other forms is fundamental.
His lawyer Kirk Tousaw, who also represents other medical marijuana-related litigants, said his client is pleased the court will allow patients to decided what mode of ingestion works best for their particular symptoms and conditions.
“How many people out there really think that a critically and chronically ill member of their family shouldn’t be entitled to eat a medical marijuana cookie if that relieves their pain?” Tousaw said in an interview.
“We’re talking about the right of patients to find some relief from their very serious symptoms and conditions. It’s about time our government stop wasting our money trying to prevent people from doing that.”
The Appeal Court ruled its judgement may be suspended for one year in order to allow Parliament time to amend the regulations to ensure they are constitutional.
The Crown appealed the decision from B.C. Supreme Court where the judge there ordered the word “dried” and the definition of “dried marijuana” to be deleted from the regulations.
The Appeal court judges agreed with the lower court judge in amending the legislation, saying that was a job for Parliament.
Both Smith and the Crown have the right to appeal to the Supreme Court of Canada, but neither has yet decided whether to do so.
Health Minister Rona Ambrose was not available for an interview. The ministry said it was reviewing the decision and considering its options.
Tousaw said he’s hoping the ruling prompts the federal government to re-evaluate its policies. But he noted a potential obstacle will be the fact that the decision centres on a regulation scheme that no longer exists, rather than its new, commercial revision.
Scores of lawsuits have been filed challenging the federal government’s attempted overhaul of the system that took effect in April and limits marijuana production to licensed commercial growers.
While more than 200 lawsuits filed via an online legal kit have been put on hold, an ongoing Federal Court case is expected to be heard in February of next year.
The judge had issued an injunction allowing many patients to temporarily grow pot at home.
This latest ruling may bolster the other cases, Tousaw said.
Smith, who did not have a medical marijuana card, was arrested while in the process of cooking up pot medicine. His lawyer said he had expertise in turning dried marijuana into salves, oils and baked goods, knowing the precise amounts of the drug to use and the best process for making “effective and safe” products.
Many individuals do not know how to do that, Tousaw said, adding that people usually laugh about scenarios where someone accidentally eats a really strong pot brownie and ends up having a “significant psychedelic experience.
“A lot of people don’t want that, they just want not to hurt,” he said.
The difficulty with the law is that it makes it legal to use pot in your own kitchen, but illegal to pay someone with sophisticated, analytical equipment to do it for them, Tousaw said.
“If my grandma wants to use medical cannabis to deal with arthritis pain, I think she should be entitled to go and purchase it from someone who can say, ‘Look, eat half a cookie and you’re ingesting 14 mg of THC,’” he said. “Then she can know for herself what the appropriate dosage is.”
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