A Canadian flag with a marijuana leaf is flown during a 4/20 rally to
demand the legalization of marijuana on Parliament Hill in Ottawa April
20, 2012. Marijuana enthusiasts across Canada gather by the thousands
every year on April 20 for an international celebration-cum-protest for
VICTORIA, B.C, A Canadian Supreme Court judge has given Health Canada one year
to respond to his ruling that the restriction to dried marijuana in
Health Canada’s Marijuana Medical Access Regulations is
On Friday, Justice Robert Johnston suspended his declaration for 12
months but said the suspension will not affect people authorized to use
On April 12, Johnston ruled that people authorized to use medical
marijuana could make cannabis-infused oils, drink it in their tea or
bake it into brownies and cookies — not just smoke it.
Health Canada applied to the court asking for a year to respond to the ruling.
“While it may seem like a simple ruling, it has anything but simple
impacts and the government needs some time to figure out how to most
appropriately respond,” said federal prosecutor Peter Eccles.
“And that’s what the court did. They gave the government a year to
respond to the ruling while protecting the rights of patients who are
authorized to possess marijuana for medical purposes. The ruling, as I
understood it, was never intended to extend to producers, who are a
Designated producers are in the same legal position they were in
prior to the ruling, said Eccles. They are not allowed to make secondary
“Some time in the next year, this will get resolved in a legislative response,” he said.
The decision arises out of a constitutional challenge by Owen Smith, the head baker for the Cannabis Buyers’ Club of Canada.
Smith, 29, was charged on Dec. 3, 2009, with possession for the
purpose of trafficking and unlawful possession of marijuana, two years
after the manager of an apartment complex complained to police about a
strong, offensive smell wafting through the building.
Police obtained a search warrant and found substantial quantities of
cannabis-infused olive and grapeseed oil and pot cookies. At the time
Smith was charged, he was producing topical and edible cannabis-based
products to be sold through the club.
Smith’s trial began in January with a voir dire — a trial within a
trial — on an application challenging the restrictions that allow
authorized users to possess medical marijuana in dried form only.
Defence lawyer Kirk Tousaw argued the laws were unconstitutional and
arbitrary and did not further the government’s interests in protecting
the health and safety of the public. Instead, they forced the critically
and chronically ill to predominantly smoke medical marijuana, which was
“Even an authorized person, under Health Canada’s regime, is unable
to produce cannabis butter to make cookies to eat before bed or when
they get up in the morning to deal with chronic pain,” he told the
On Friday, after Johnston suspended the order, Tousaw said he had
successfully defended the rights of patients to be able to use cannabis
derivative products, topicals, salves, and baked goods. “At least in
B.C., those patients will be protected from criminal charges and
deprivation of their liberty,” said Tousaw.
“We were not successful in extending that protection, at least for
the next 12 months, to designated producers, those who are producing
cannabis for the medical marijuana users.”
Tousaw said he hopes Health Canada will take the decision and use it
to craft sensible reforms for patients that are not largely based on the
concerns of law enforcement.
In the meantime, Smith has been ordered to stand trial. Jury selection is scheduled for Feb. 4, 2013.
“My hope is the effect of the judge’s ruling, coupled with our
medical necessity defence, will convince a jury what Mr. Smith was doing
was important and necessary and he ought not to be convicted of a crime
for helping sick people,” said Tousaw.