By Ted Smith

A huge sigh of relief swept through the courtroom when Justice Johnson quickly announced the Marijuana Medical Access Regulations were unconstitutional on the morning of Fri. Apr. 13, 2012, in the case of Owen Smith, former head baker for the Cannabis Buyers Clubs of Canada. It was not a surprise. Shock struck when he continued and stated that the jury trial would still go ahead.

When it came to the remedy, the judge was uncertain about whether to suspend the declaration of invalidity to give Health Canada time to make any further adjustments to the regulations, or whether he should strike down the MMAR as unconstitutional immediately. He gave the lawyers, Kirk Tousaw for the defense and Peter Eccles for the crown, until that afternoon to come up with a position on that topic, but it was not enough time. A date was set for Apr. 27, to determine exactly how a suspension of the decision would work.

In the meantime, until Apr. 27, the judge agreed that patients who currently hold a license to possess or grow cannabis should be exempt from any suspension of the decision, making them immune from prosecution for the time being. The crown was much more concerned about the problems associated with allowing designated growers the right to produce cannabis extracts given some of the possible difficulties that could arise from the inability to weight the amount of herb in various cannabis products, and the potential for diversion of these products into the recreational market.

While this decision is not binding in other provinces, it will be very persuasive upon any judge in the country that faces a patient with a Health Canada card in possession of hash or cannabis-infused oils, teas, edibles and salves. Only a decision by the Supreme Court of Canada would be binding across the country, though an unchallenged decision by a Court of Appeal is often accepted in other provinces.
Before discussing the remedy with the lawyers, Justice Johnson reluctantly admitted his decision needed to be corrected. Kirk pointed out the fact that his decision to simply strike the term “dried” out of the MMAR, where it appears before marijuana, would not necessarily protect patients who wanted to make products from their legal herb. Additionally, the judge needed to further amend the definition of marijuana in the MMAR so that it includes all cannabis derivatives mentioned in the Controlled Drugs and Substances Act.

On the surface, this issue seems obvious. As the Chief Medical Officer for B.C., Dr. Perry Kendall, immediately stated: “By consuming cannabis in these ways, patients are able to avoid the negative health effects of smoking, which we know to be harmful to the lungs.” While some would question how negative properly smoking high quality cannabis actually is, few would suggest that patients should only have the option of smoking.

One would assume that when the regulations were created, and patients were first legally allowed to grow and smoke the herb, that they would also be allowed to make cookies and teas. There is a section on the MMAR forms for indicating whether you are smoking or orally ingesting cannabis, but aside from letting people know they cannot make hash when they receive their license, Health Canada does not explicitly warn patients they are at risk to prosecution if they make extractions into butters and vegetable oils. The “Guideline for Health Care Practitioners” that Dr Abramovici updated for Health Canada mentions cookies, brownies, teas, and topical applications, citing several studies on these plant-based medicines, further suggesting the potential benefits without even hinting at the risk of being caught with these products.
When the police raided the bakery of the CBC of C and arrested Owen in Dec. 2009, we felt this was a perfect case to get in front of a judge and deal the fact that cannabis extracts had been excluded from the MMAR. He was charged with possession of THC for the purpose of trafficking, and possession of marijuana for a small amount of herb on the table.

I have operated the CBC of C since Jan. 1996, and the club has grown to about 3,900 members. We have about 30 food and skin products. In 2002-03, our store was raided by the police four times, but we beat every charge laid against us.

Though, until now, THC itself has remained illegal, THC (tetrahydrocannabinol) and CBD (cannabidiol), are internationally recognized to be two of the most medically active of the chemicals available in the cannabis plant. Synthetic THC is sold as Marinol or Cesemat in Canada for $8 a pill, yet many claim it is not as strong as one of our cookies. That monopoly may have just been broken.

We brought Dr. David Pate in for expert testimony to explain to the judge why it was difficult to understand how the cannabis plant was legal, but when the resin glands that appeared on the surface of the leaf are separated, it suddenly becomes a different drug subject to harsh penalties. Dr. Pate explained that the medicinal benefits actually came from these resin glands much more than they do the plant material. Justice Johnson cites five pages of claims made by Dr. Pate that he accepted as fact.
The crown brought in Dr. Abramovici to explain the scientific reasons for allowing patients to only smoke or vaporize cannabis. He claimed adverse effects, like euphoria, would be more common with edibles because it would be more difficult to predict proper dosage rates. However, Justice Johnson did not give his evidence much weight because Kirk was able to get him to admit that the conclusions in his expert report were actually written by his boss from another department in Health Canada. It seemed strange this would happen in a trial where the defendant is accusing the government of being in contempt of the courts. Justice Johnson admitted it troubled him that this happened.

While Justice Johnson did find the MMAR violated the right of patients currently licensed by Health Canada, he was not prepared to extend that protection to those outside of the program. Ironically, while recognizing the MMAR is unconstitutional, without any explanation at all, Justice Johnson stated it was his opinion that it was still in the public’s interest to proceed with the jury trial. A date was set for Apr. 25 to begin preparations for the jury trial.

This judgment was made on a voir dire, or what is otherwise called a trial within a trial. It was started very early into the trial that began in Jan., in order to explore the constitutional issues the judge needed to consider.

The jury will focus upon whether the members of the CBC of C had a medical necessity to use cannabis. We plan upon finding about 20 members of the club who would be willing to testify in front of the jury as to their use of the edible and topical products.

If the jury trial proceeds it will likely start in late summer or early in the fall. It is highly doubtful any jury in Canada would find Owen guilty of a crime for making cookies and salves for people suffering from permanent, physical disabilities and diseases. Even if they were to find him guilty, there is every reason to believe that Owen would receive a discharge, and likely an absolute one, as his record is clean and he was caught with so little product. These are also reasons the crown is likely to consider dropping the charges quickly, as they can proceed with the task of settling the law.

While the trial focused upon edible and topical products, the remedy goes further, giving patients the ability to make anything they want with their cannabis. This includes products known as honey oil, hash, tinctures, and alcohol sprays. Many have feared these types of products will only become legally available if they are made by drug companies under strict regulations.

This decision could be an important step for cannabis towards the Natural Health Product Regulations and away from the Controlled Drugs and Substances Act. If it were not for one section of the NHPR that forbids anything listed in the CDSA from being included in that act, cannabis would certainly be suited for the natural product regulations with other plants, rather than be pushed through the drug approval process.

Creating regulations governing the production and use of cannabis extracts will not be easy. Health Canada would struggle to complete the task in a year, given the lack of expertise they seem to have. These news regulations will have to determine the quantities of hash, honey oil, cookies, massage oils, etc, that patients are allowed to possess. They will also have to figure out standard operating procedures for designated growers to produce and distribute these extracts.

This decision comes one month before the Matt Mernagh case is heard before the Ontario Court of Appeal. Just over a year ago, the MMAR program was declared unconstitutional in that case, as it is too difficult for patients to access the program. These two cases strike a great combination of punches to Health Canada’s programs.

Last summer, the federal government announced they were considering making major changes to the way the MMAR works, cutting down the paperwork and opening the market so patients could choose from various commercial producers. This plan would see patients lose the ability to grow their own medicine. Few details about these changes have been made public since last summer.

Obviously more amendments will be needed than they thought. For now, patients with MMAR cards can either rest easy knowing their cookies are legal, or get busy making hash. Meanwhile, we are preparing for the next stage of our trial.