Medical marijuana cookie case hits Canada’s high court

Supreme Court hears edible pot safety, health arguments in B.C. challenge of criminalized derivatives

B.C. lawyer Kirk Tousaw (left)

Turning medical marijuana into cookies, tea or oil should not be a criminal act that risks jail time, a B.C. lawyer told the Supreme Court of Canada Friday in the first ever hearing of its kind.

Kirk Tousaw appeared before the country’s top court to argue the ban on cannabis derivatives, extracts and edibles like pot brownies is unconstitutional and that authorized medical marijuana patients should be free to use the drug in whatever form works best for them, not just the dried plant, which is the only medical exemption to the Controlled Drugs and Substances Act.

The federal government is appealing the dismissal by B.C. courts of drug trafficking charges against Owen Smith, a Victoria man caught baking pot cookies for members of a local compassion club.

It’s the first time a medical marijuana issue has made it to the Supreme Court after a series of court rulings that have forced Ottawa to provide physician-authorized access to the drug.

RELATED:VIDEO STREAM: Full hearing before Supreme Court of CanadaHigh court to decide right to pot cookies

Tousaw said many medical marijuana patients don’t want to smoke pot all day long to relieve symptoms and would rather eat it as the medicinal effects are longer lasting and more effective than when inhaled.

He pointed to the testimony of Gina Herman, a patient who brewed tea from her medical marijuana – technically an illegal act.

“She’s perfectly fine holding her dried cannabis, but she’s not fine holding her medicinal tea out of it,” Tousaw told the court. “That highlights the arbitrariness of these restrictions.”

He noted the trial judge in the case agreed ingesting edibles is “as safe or safer than smoking.”

Ottawa could readily regulate medical pot derivatives as it does natural health products without criminalizing them, Tousaw added.

Crown prosecutor Paul Riley argued medical marijuana patients have legitimate alternatives to smoking, including vaporizing and the use of approved cannabis-based drugs that come as pills, capsules or oral sprays.

He said advocates merely prefer an illegal form of the drug when legal options exist.

If government is forced by the courts to allow medical marijuana, he said, it’s reasonable to exclude forms for which there is no scientific evidence of the benefits or safety.

“We don’t know the implications and effects of derivative marijuana,” Riley told the court. “We don’t know those things so we’re not going to regulate them.”

Chief Justice Beverley McLachlin questioned whether criminal sanctions are appropriate.

“You’re putting people in risk of imprisonment as opposed to the usual regulatory scheme,” she said, triggering applause from the gallery.

Riley said the Victoria dispensary where Smith baked was producing massive quantities of edible pot products for dubious reasons.

He said the Cannabis Buyers Club of Canada there had nearly 4,000 members, only five to 10 per cent of whom had medical marijuana permits, and a club representative admitted having to cancel more than 500 memberships of people suspected of reselling pot.

Riley likened the case to a failed challenge by raw milk advocates of laws requiring pasteurization. Ontario courts rejected the argument their constitutional rights were violated.

“Unless you can show something is safe and therapeutically effective it shouldn’t be authorized,” Riley said, citing drugs like thalidomide that “people assumed were okay but turned out not to be.”

The ruling isn’t expected until at least summer but when it comes it could force significant changes to how medical marijuana is regulated in Canada.

The government’s new commercial pot production system offers only dried pot.

A separate challenge before the courts led by Abbotsford lawyer John Conroy seeks to ensure patients can continue to grow their own marijuana and not be limited just to buying from commercial producers.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Two new COVID-19 cases announced in Interior Health region

The total number of cases in the region is at 533

Regional District of Okanagan-Similkameen compost project receives recognition

Federation of Canadian Municipalities names regional district for environmental leadership

6 puppies rescued in mass seizure on Princeton farm have died of illness: BC SPCA

Of the 97 distressed horses, cats and dogs seized, most of the puppies suffered from parvo

More wildfire smoke to fill the Okanagan

The smoke is coming from wildfires in California but is expected to be much lighter

COLUMN: The effects of proroguing Parliament

Only four hours were allotted for debating $50 billion in deficit spending

B.C. counts 125 new COVID-19 cases, up to 1,284 active

No new deaths or health care facility outbreaks

Documentary to celebrate the Shuswap’s music scene

Local initiative to feature several of the region’s artists

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Guns seized in relation to southeast Kelowna murder investigation

RCMP seized several firearms from a West Kelowna home on Tuesday

Health Canada green-lights rapid COVID-19 test

Health Canada approved the BCube test from Hyris Ltd. in the United Kingdom Sept. 23

FINLAYSON: COVID-related job losses concentrated in urban areas… especially Metro Vancouver

The biggest job losses, in absolute terms, have been in Metro Vancouver

Action demanded over death of First Nations youth in Abbotsford group home

Family and Indigenous organizations push for thorough investigation

Okanagan man accused of attacking two young boys back in court

Brian Lamb will remain behind bars until at least Oct. 14

U.S. boater fined $1,000 for violation of Quarantine Act

49-year-old man entered Canada to visit girlfriend in Surrey

Most Read