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

(File image)
Vehicle collides with propane line causing explosion in Thornhill

Driver sustained severe burns, was taken to Lower Mainland in air ambulance

The plan to build a staircase to the Bench includes a channel to more easily transport bicycles up and down. (Photo courtesy City of Terrace)
Staircase to Bench subject of City grant application

Would connect lower Eby St. to upper Eby St.

The car was trapped, with its driver inside, in a ditch off Hirsch Creek Main near Onion Lake overnight Monday (Oct. 19). Oct. 20, 2020. Kitimat RCMP photo.
Man found after spending overnight stuck in car in a ditch near Onion Lake

Kitimat RCMP said the man was stuck there overnight for about 10 hours

Stikine provincial election candidates (clockwise from top left): Nathan Cullen, NDP; Darcy Repen, Rural BC Party; Rod Taylor, Christian Heritage; and Gordon Sebastian, BC Liberals. (Black Press Composite Photo)
FILE - Nathan Cullen speaks to media in Smithers, B.C., Friday, February 28, 2020. THE CANADIAN PRESS/Jonathan Hayward
More calls come in for Cullen’s removal as NDP candidate

Gitxsan Hereditary Chiefs demand Cullen’s removal. Ellis says, There’s no place in B.C. for racism

Actor Ryan Reynolds surprised a Shuswap family with a special birthday message to their son who was worried he’d be alone on his 9th birthday on Nov. 24. (Tiffanie Trudell/Facebook)
Ryan Reynolds text almost gives away Shuswap boy’s birthday surprise

Deadpool actor helps remind eight-year-old Canoe resident he’s not alone

Vancouver police reactivated the search for Jordan Naterer Thursday Oct. 22. Photo courtesy of VPD.
Mom of missing Manning Park hiker believes her son is waiting to come home

‘He’s going to come out of a helicopter and say ‘what took you so long?”

Environment Minister George Heyman, Premier John Horgan and Energy Minister Michelle Mungall announce that B.C. Hydro is proceeding with construction of the Site C dam, Dec. 11, 2017. (Tom Fletcher/Black Press)
Site C actions, costs won’t be known until after B.C. election, Horgan says

Peace River diverted for construction of reinforced dam base

One of the squirrels who ended up having their tails amputated after getting them stuck together with tree sap. (Facebook/Wild ARC)
Squirrels recovering from tail amputation after sap situation near Victoria

BC SPCA Wild ARC says squirrels will be released back into wild, fifth sibling was euthanized

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

More and more electric cars are on the road, but one Chevy Bolt owner was shocked to see how much his BC Hydro bill skyrocketed once he started charging the vehicle. (Black Press file photo)
Lower Mainland man sees significant spike in BC Hydro bill after buying electrical vehicle

An increase should be expected, but Brian Chwiendacz experienced a 200-plus per cent hike

The Anonymous YVR is an Instagram page that reviews restaurants and other establishments around B.C. based on how well they adhere to COVID-19 rules. (Instagram)
Anonymous Instagram page reviews COVID-19 safety measures at B.C. businesses

There are a number of public health orders various types of establishments must follow to slow virus’s spread

Most Read