T?lis B?auns
Comments from the defences legal represntative: Kirk Tousaw Here's my early summary of the decision in R v Owen Smith.
The BCCA found that section 7 protected the rights of patients to make the reasonable choice to use medical marijuana in forms other then dried marijuana. The court determined that these types of medical decisions go to the core of what it means to be an autonomous person living with dignity in our society.
The court disagreed with the remedy imposed by the trial judge and modify that remedy to simply strike the dried marijuana restriction in the regulatory scheme and gave Parliament a one year to respond. It is unclear what impact that one-year suspension is going to have because obviously the MMAR no longer exist.
It is similarly unclear what impact this will have on the MMPR though I would suggest that patients have the right to render dried cannabis into the forms and modes of ingestion they find most suitable for their particular symptoms or conditions.
Because there was a dissent and this is a criminal case, I believe that there is an automatic right of appeal to the Supreme Court of Canada.
I thought the court majority used very good language in describing the parameters of the rights protected by section 7 as they apply to the use of medical cannabis. In particular I was impressed with the strong language used in paragraph 96.
It's been an absolute honor and privilege to work on this case with Ted Smith and Owen Smith and of course with the incredible and brave members of the VCBC that testified in the proceedings.
Onward. A few questions keep arising:
1. The decision is binding on trial level courts across Canada, persuasive on provincial appellate courts.
2. The impact of the statement above is unclear because (a) the MMAR are no more; (b) the remedy imposed by the BCCA was suspended for a year to let the government react.
3. What the government is required to do by this decision is not immediately clear to me. What they should do is immediately amend the MMPR and/or CDSA to (1) make clear that patients can produce and possess cannabis derivative medicines, and (2) allow LPs to produce and sell those medicines. [Obviously what they really should do is legalize cannabis generally and stop trying to take away patient's production rights but my comments are meant to be a reaction to the Court's ruling in our current framework.]
4. The government and Owen Smith are both entitled to appeal. I'm not sure, but believe, that because it was not unanimous the SCC would have to take the case. No decisions have been made by either side at this point.
5. This decision does not allow LPs to make/sell derivatives right now (or possibly ever). Fundamentally, as the decision was written, it is about patient rights, patient autonomy, patient dignity.
I need to also commend the very brave patient witnesses that shared their stories with the Court in this case. Thank you.