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Supreme Court of Canada Says Edibles Are Okay in Landmark Medical Marijuana Case

The decision is the latest in a long line of losses for the Canadian government on its pot laws. But the case only dealt with criminal prohibitions around possessing and producing cannabis, not with regulations on who can sell it.

by Justin Ling
Jun 11 2015, 3:15pm

Photo by Brennan Linsley/The Associated Press

As of today, Canadians with a valid prescription will be able to enjoy their hash brownies and weed cookies, spread marijuana butter on their toast or drizzle some THC oil over a cracker.

They can thank the Supreme Court. Canada's top judges, on Thursday morning, effectively knocked down two sections of the government's heavy-handed rules on medical marijuana that dealt specifically with possession and production, not sale.

The regulations technically ban all marijuana, but exempt dried cannabis for medical purposes. In effect, it means that smoking is the only way for patients to use the drug.

Patients have, for years, said those rules have been cruel limitations on how they can get their medicine. 

The unanimous decision of the Supreme Court of Canada — co-written by all seven judges, which is uncommon — declared those restrictions null and void, meaning patients will now be able to take their medicine however they like.

"This appeal requires us to decide whether a medical access regime that only permits access to dried marihuana unjustifiably violates the guarantee of life, liberty and security of the person," the judges wrote. "The British Columbia courts ruled it did, and we agree."

The Canadian government was incensed, with the minister of health releasing a statement immediately after the decision, blaming the courts for "sidestepping" the government's own medical approval process. The minister committed to "fight similar cases in court" and then insisted marijuana leads to schizophrenia in youth (this isn't really true), and underlined the dangers of smoking marijuana (without acknowledging that today's decision will save sick patients from having to smoke marijuana).

Medical marijuana users should be worried about her comments, given that today's ruling only deals with one half of the issue around cannabis derivatives.

The case only dealt with the criminal prohibitions around possessing and producing cannabis, and how patients can get exemptions, not with the regulations on who can sell marijuana.

"If you're pulled over on the street and you've got gummy bears or pot brownies in your possession, you're cool," says Hugo Alves, partner at Toronto law firm Bennett Jones.

But it's unclear how patients can legally get that medicine. Right now, patients need to have the pot sent via mail by a licensed producer. The regulations stipulate that those producers can only sell dried cannabis — no derivatives. So the question remains: will these producers begin selling edibles?

"Well, it's pretty clear in the [regulations] that they're not allowed to," says Michael Lickver, an associate at Bennett Jones.

Alves and Lickver make up the law firm's marijuana unit, which is probably a first in Canada.

"We're still digesting, no pun intended," says Lickver. "Actually, pun intended."

The two say that the federal government now has to decide whether it wants to give cancer patients, glaucoma sufferers, and the gamut of medical marijuana users actual access to safe medical marijuana, or whether it wants to keep the current rules in place.

Users should still have some optimism, though.

"For patients, it's a good decision. But it's an incomplete decision because it doesn't address access," says Alves. "It isn't all good news."

The real impact of all this is that research and development into marijuana derivatives can now properly take off in Canada. While selling them may be banned, producing the products is going to be above board.

The government may yet try to crack down on that research, given that new regulations were announced shortly after the decision that seeks to crack down on production of all restricted drugs, and to allow the minister to ban 'designer drugs' including "synthetic cannabinoids."

The lawyers also say that doctors are now more likely to prescribe the drug, given patients will no longer have to smoke or vaporize pot and run the risk of hurting their lungs.

Patients can still visit dispensaries, however, and be confident that they won't go to jail if the place gets raided. The shops, however, are in the same legal limbo that they've always been in.

The ruling, where possession is concerned, puts Canada on par with 23 other American states that regulate medical marijuana and allow edibles. States like Washington and Colorado have rules around how the products can be marketed and labelled, but of the jurisdictions that permit the medicine, Canada ran arguably the most stringent prohibitions.

Colorado considered banning edibles, but later walked that back.

The Canadian case goes back to 2009, when BC police arrested Owen Smith, who worked at the Cannabis Buyers Club of Canada, which provided marijuana and its derivatives for anyone with a valid prescription from a doctor.

Smith's job involved extracting THC from marijuana in order to make edible and topical products for the club's patients — lip balms, gel capsules, and cookies.

Police seized hundreds of cookies and jars of oil, and charged him with possession and trafficking. Smith faced, potentially, several years in jail time.

At trial, the judge rejected the government's case and tossed the charges, declaring the regulations as unconstitutional. Two-thirds of a Court of Appeal agreed with the trial judge.

The one dissenting judge contended that Smith, and any medical marijuana user, could have simply converted the dried marijuana to an oil or butter at any time.

The Supreme Court of Canada threw out that argument, in noting that if users are completely banned from possessing marijuana derivatives, except for dried cannabis, then producing it themselves is hardly allowed.

But more importantly, the court ruled that the state was arbitrarily interfering with how patients get their medicine.

"In this case, the state prevents people who have already established a legitimate need for marihuana — a need the legislative scheme purports to accommodate — from choosing the method of administration of the drug," wrote the court. "This denial is not trivial."

The end result is a big win for medical marijuana users. Smith was acquitted of the charges, and part of Ottawa's rules have been outright struck down.

Related: Colorado Lawsuit Claims Marijuana Edibles Caused People to 'Overdose'

The next test of the laws will be in the coming months, as a coalition of medical marijuana users who previously grew their own plants, but were suddenly forbidden from doing so, challenge the corporate weed system set up by the Canadian government.

The rules set out a laundry list of unwieldy — and expensive — requirements for pot producers who want to supply medical marijuana. At present, there are only 25 of those producers across the country.

VICE went inside one of those corporate weed farms.

The roughly 40,000 home growers who are left over from the previous system are allowed to continue growing, for now, although the government has already tried to force them to destroy their plants. A court stepped in and gave them a reprieve until the Supreme Court decides what to do.

The governing Conservative Party finds itself alone in its effort to crack down on drug use in Canada.

Its restrictions on medical marijuana are being challenged by individuals across the country who have opened dispensaries, despite the threat of serious jail time. The city of Vancouver has even gone so far as to draw up permissive rules on how those dispensaries can operate in the city. The federal government wants the city's police to ignore the mayor and raid the dispensaries anyway, as VICE News reported in April, and lock up anyone who is handing out the illegal medicine.

Canada's approach appears to mirror George W. Bush's efforts to bust any medical marijuana dispensary, even against the wishes of the country's cities and states. The process was continued by President Barack Obama.

Ottawa is in a similar spot on supervised injection sites. The Supreme Court has ruled that, if there is a valid medical case for a safe injection site, it is unconstitutional for the government to try and lock up those running and using it.

Nevertheless, the government has dragged its feet on approving the sites. That's led the city of Montreal to simply go past the federal government. City council and the provincial government have both approved a plan to open safe injection sites,, and the city police have been informed.

"There is no time to play games," mayor Denis Coderre told media. "We are solid and we are going to do it anyway."

Follow Justin Ling on Twitter: @justin_ling 

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