By Ted Smith

Every once in a while, a court case determines the direction of Canadian society. It is a rare occasion when unique circumstances challenge the courts to strike a balance between individual freedoms and public security. Often precedent helps guide a judge towards generally accepted principals of justice that predetermine rules of evidence, court procedure, and sentencing. Sometimes, though, situations are so different that there is no clear direction for the court to take.

Starting on Jan. 16, in Victoria, B.C., such a trial will be commencing. The stakes are high. If the crown wins, drug companies have exclusive rights over cannabis-based medicines. This could eventually force patients to use pills or inhalers rather than make cookies or creams from plants grown in their back yard. If the defendant, Owen Smith (no relation to me), wins, then the government could be forced to change the Marijuana Medical Access Program or he just simply be granted an acquittal.

It all started on an average afternoon in Dec. 2009. Owen was busy baking in a downtown apartment, with music cranked. A knock on the door and moments later police were inside asking questions.
Here are some excerpts of the pretrial summary written by lawyer Kirk Tousaw.

I) Mr. Owen Smith, in his role as an employee of the Cannabis Buyers Club of Canada, an unincorporated “compassion club” operating for the past fifteen years in Victoria, British Columbia, produced cannabis byproducts for the exclusive use of the members of the CBC of C, all of whom find relief from the conditions and symptoms as a result of the cannabis-based medicines sold by the organization. These byproducts include (a) cannabis medicines in the form of cookies, lozenges and other products for oral administration; and (b) cannabis infused oils, salves and patches for topical administration.

Accordingly, this case represents another in a long series of challenges to the validity of the federal government’s medical cannabis exemption scheme and the Controlled Drugs and Substances Act as applied to producers and distributors of cannabis for medical purposes. On several prior occasions over the 10-year-plus existence of the program, various aspects of the government’s scheme, set out in the Marihuana Medical Access Regulation, as amended, have been declared invalid and contrary to the dictates of section 7 of the Canadian Charter of Rights and Freedoms. Each time, the federal government’s response to the Courts’ declarations of invalidity has been inadequate, leading to further constitutional challenges. In many other cases, including one involving the founder and proprietor of the CBC of C (Mr. Leon Edward “Ted” Smith), Courts have granted judicial stays of proceedings to accused persons engaged in producing and/or distributing cannabis for bona fide medical purposes

II: A) The general thrust of the evidence from these patient witnesses is (a) that medical cannabis and cannabis products provide them with relief from their conditions and symptoms at least as effectively as pharmaceutical options and with less significant negative side effects; (b) that it has been difficult and/or impossible for them to obtain access to the legal protections of the MMAR program; (c) that it has been difficult or impossible for them to obtain a lawful supply of cannabis medicine; (d) that they have obtained cannabis and cannabis products from the CBC of C and find those products to be effective; and (e) that the use of cannabis products manufactured by Mr. Smith and obtained from the CBC of C is preferable, on safety and efficacy grounds, to consumption of dried cannabis by means of smoking or vaporizing.

II: C) Mr. Smith intends to call Dr. David Pate to provide expert evidence generally related to (a) the safety and efficacy of medical cannabis and cannabis byproducts; (b) the nature of the cannabis plant, its active ingredients and extracts; (c) the scientific basis for preferring or requiring the use of cannabis byproducts such as those produced by Mr. Smith for certain conditions and/or symptoms, or for certain individuals including some or all of the patient witnesses; and (d) the medical benefits of ingesting cannabis extracts/byproducts as opposed to smoked or vaporized modes of administration.

III: C) More specifically, and without limitation, he intends to argue that the impugned legislation is invalid and contrary to sections 7 (and 12) because (a) persons for whom cannabis (including preparations and derivatives as identified in Schedule II) provides medicinal benefit are constitutionally entitled possess cannabis for their personal medical use without fear of criminal sanction and those that produce cannabis for them are constitutionally entitled to do so; (b) the CDSA/MMAR scheme, and in particular the limitation of the MMAR exemption to possession of dried cannabis only, is arbitrary, constitutes an illusory defence to criminal liability and carries penalties that are grossly disproportionate to the state objectives embodied by the legislation and associated regulations; and/or (c) that the CDSA/MMAR scheme and/or the enforcement and administration of that scheme creates further barriers to accessing the legal protections of the program and a lawful supply of safe, effective cannabis based medicine.

With veteran crown advocate Peter Eccles arguing for the government, this trial will be a battle from the beginning. He has acknowledged he really enjoys prosecuting medical cannabis cases because it is interesting law and he feels more comfortable in the room because he is not sending nasty people to jail that could threaten him if he wins.

This trial could take much longer than the 20 days scheduled to begin Jan. 16, as there are a couple of arguments never tried before by medicinal cannabis activists. The first is an attempt to find the government in contempt of previous court decisions. The second rare move is to call a jury trial instead of being heard by judge alone.

Usually, constitutional issues and matters of law are dealt with strictly by the judges. If the charges are serious enough to give the defendant a chance to call a jury, then the jury is given the opportunity to decide if there is sufficient evidence to determine guilt but matter of law are still left to the judge. However, there is a rarely used section of law that allows juries to grant acquittals if they determine the defendant had a medical necessity to do so.

Instead of starting to pick the jury the week before the trial begins, Justice Johnson has developed cold feet about allowing them to hear all of the evidence being presented for the constitutional arguments, and may try to proceed with the legal arguments first. If this is how things move forward, then it will almost be like having two separate trials, except the expert testimony will not be heard by the jury, unless the judge rules the law is a violation of the Charter of Rights and Freedoms and grants Owen an acquittal before the jury is called. In many ways that would be the best case scenario, but if that fails then Owen will still have a chance before the jury to get an acquittal.

One of the first decisions Justice Johnson will make is whether to, essentially, force the crown to send officials from Health Canada to defend the drug approval process. In particular, we need to question bureaucrats and a scientist about why cannabis derivatives like THC are not included in the MMAR when they are generally recognized as being healthier to use than smoking herb. Only officials from Health Canada can explain why THC can be sold legally as Marinol for $8 a pill, but patients can be prosecuted for making cookies and salves. Health Canada has mislead patients to think they can turn their cannabis into edible and topical products without fear of arrest, but this is simply not the case.

Even if found guilty, Owen should face little to no consequences. In many cases involving medicinal cannabis clubs, even when defendants are found guilty, they are routinely given absolute or conditional sentences. For example, in the case of Matt Beren, a grower for the Vancouver Island Compassion Society, he was found guilty of growing over 900 plants with a license for nine but was given an absolute discharge because the justice recognized he was acting in good faith and attempting to alleviate suffering in the face of inadequate regulations.

This situation is so unique the crown has no idea the value of the medicine they took. They have not yet provided a sentencing report either, something usually submitted long before the trial begins in an attempt to convince the defendant to plead guilty.

Several special interest groups will have their eyes on this trial. Patients who benefit much more from noncombustible cannabis products than from smoking herb or using pharmaceutical products will be the most concerned, as their quality of life often depends upon the cheap, easy medicine they can make with this plant. The quality and length of their lives depends upon this decision.

In fact, most of us will likely find ourselves suffering from a medical problem that cannabis helps with before we die. Looked at in that light, this trial affects all Canadians directly, for if the government can stop people from making medicines from plants, then we will all suffer.

Obviously, people who work in other medical dispensaries across the country will be watching this trial, as offering these alternatives to smoking has been an important service these groups have provided. If the green light is given, a sudden surge of interest in these alternatives could appear. Alternatively, if we lose, everyone could lose, especially with the mandatory minimum sentences being brought in by the Conservatives this Spring.

If we lose, the big winners will be drug companies. They are the only ones who stand to profit by maintaining the status quo.

The crown will no doubt argue that, just like patients cannot make their own morphine from poppies, they should not be able to make their own oils from cannabis. Eccles will rant about the importance of standardization and the drug approval process to guarantee safety, efficacy, and consistency.

So, ultimately, this is a battle between nature and science. The crown would have it that science ruled the world, and that the natural world is something to exploit, tame, refine. We beg to differ.
Exactly how this trial will proceed is anyone’s guess. The unique circumstances, evidence, and arguments will make every day in court interesting. In the end, though, the judge should have little choice but to let Owen walk away with his head up high.