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Right to pot cookies upheld by high court

Dried marijuana is no longer the only legal option available to approved medical marijuana patients. - File photo
Dried marijuana is no longer the only legal option available to approved medical marijuana patients.
— image credit: File photo

Medical marijuana patients have a right to possess and use cannabis in the form of cookies and products other than dried bud, the Supreme Court of Canada ruled Thursday.

The unanimous decision is a major victory for cannabis crusaders who argued they should not be forced only to smoke or vaporize the drug when edible or topical products are safer and provide benefits such as delayed delivery.

"Inhaling marihuana can present health risks and is less effective for some conditions than administration of cannabis derivatives," the country's high court ruled.

It found the federal drug law exemption allowing medical pot patients access only to dried marijuana violated their constitutional right to life, liberty and security of the person.

Approved patients who illegally baked cookies, brewed pot tea or turned it into oil had faced the threat of criminal prosecution, but not any longer.

"This denial is not trivial," the court ruled. "It subjects the person to the risk of cancer and bronchial infections associated with smoking dry marihuana, and precludes the possibility of choosing a more effective treatment."

The ruling upholds the decision by B.C. courts that dismissed drug trafficking charges against Owen Smith, a Victoria man caught baking pot cookies for a local compassion club.

"It's a great decision from the point of view of all medically approved patients," said Abbotsford lawyer John Conroy, one of the lawyers who defended Smith before the Supreme Court.

He said the government's dried-only restriction was unreasonable.

"It forced people to choose between a legal but inadequate treatment and an illegal but more effective one."

Conroy is optimistic the Supreme Court's ruling will also guide another pending case in which medical marijuana patients have argued before a Federal Court judge that they should be allowed to continue growing their own pot at home, instead of buying only from new commercial producers authorized by Ottawa.

In that case as well, Conroy and co-counsel Kirk Tousaw argued similar constitutional rights are in play – that medical marijuana users are deprived reasonable access if they can't afford to buy from commercial producers and that they  then risk jail if they grow it themselves or buy on the black market.

That trial took place this spring and the judge has reserved decision.

Conroy predicts Thursday's ruling may also allow commercial producers to start offering cannabis edibles and topicals, rather than just dried pot.

The Supreme Court did not give the federal government time to pass new regulations and instead issued an immediate order that the old restriction was no longer in force.

It's not yet clear how Ottawa will respond, but it could regulate pot derivatives through a different mechanism.

Federal Health Minister Rona Ambrose told reporters marijuana is not an approved medicine and criticized the ruling for contributing to the normalization of marijuana use.

"I'm outraged by the message that judges are sending that they think that they can approve a drug into a medicine without clear medical scientific evidence and without safety reviews," Ambrose said.

She cited 36 cases of people being hospitalized after becoming ill from ingesting marijuana edibles at Vancouver's recent 4/20 pot celebration.

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