Dried bud is currently the only form permitted by Health Canada for the legal sale of medical marijuana.

Dried bud is currently the only form permitted by Health Canada for the legal sale of medical marijuana.

High court to decide right to pot cookies

Lawyers to argue for medical marijuana users' access to cannabis edibles and extracts, not just dried bud

Canada’s high court will weigh the constitutional rights of medical marijuana users for the first time on Friday.

At stake in the case before the Supreme Court of Canada is whether approved legal cannabis users can be restricted to just using dried marijuana – the only authorized product under the new system of regulated producers – and denied access to oil extracts and other options, such as pot brownies and cookies.

It flows from the 2009 drug trafficking arrest of Owen Smith, a Victoria man who baked pot into various edibles for a cannabis buyers’ club.

Medical pot patients have twice convinced lower courts in B.C. that it’s unconstitutional for them to be denied their medicine in different forms if they cannot or do not wish to smoke it.

The B.C. Court of Appeal split 2-1 on the issue last August, agreeing federal regulations should simply state “marijuana” instead of “dried marijuana” but said actual changes to legislation should come from Parliament.

Health Canada has so far refused to authorize alternative medical marijuana products.

“Other means that don’t involve smoking are less problematic for health,” said Abbotsford lawyer John Conroy, calling the restriction inconsistent with the medical marijuana regulation’s goal of protecting health.

He said alternative forms are more effective for some people.

“Sick people trying to enhance their quality of life should not be criminalized for their choice of medicine,” said lawyer Kirk Tousaw, who represents Smith.

He will argue the current law limiting authorized users to dried marijuana restricts the choice of treatment for serious illnesses and therefore violates the charter right to life, liberty and security of the person.

Tousaw will urge the top court to simply exempt medical marijuana possession from the Controlled Drugs and Substances Act.

Medical pot could then still be regulated by other means by Ottawa, he said, but its users would be shielded from criminal prosecution.

“You can keep your outdated, ineffective prohibition on recreational marijuana consumers and producers. But let’s take sick people off the front lines of this ridiculous war on this plant.”

Police and federal authorities object because, unlike a bag of dried bud, it’s difficult to readily determine if personal possession limits are exceeded with products or extracts like brownies, cookies, oils and topical creams.

Tousaw insists it’s a red herring and other jurisdictions have dealt with that issue.

“To our immediate south in Washington, you can access all of these products, medically or recreationally, without fear of criminal sanction.”

The one-day Supreme Court hearing on March 20 is just one legal front in in a war

between pot advocates and the federal government over how medical marijuana is controlled.

The other key battleground is in Federal Court, where Conroy has sought to overturn the federal government’s ban on personal home growing by licensed users, which has continued under an injunction pending the outcome of the case.

He is also making a constitutional argument on behalf of users who say they cannot afford to buy commercially grown marijuana under Ottawa’s new system and that it denies them control over the strains they use.

The court heard conflicting evidence last week from fire chiefs from Surrey and Fort McMurray on the severity of public safety risks from authorized home grows.

Conroy will argue Ottawa has insufficient justification for the ban in closing arguments set for the end of April.

A win at the Supreme Court of Canada would likely have major implications for the case on home growing, Tousaw said, and could finally force reforms that the government has resisted, despite 15 years of litigation.

“Canadians have had to fight for every inch they’ve been able to get in court and the system continues to cause people to suffer in an arbitrary way that’s unrelated to protecting health and public safety.”

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