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R. v. Smith Page 4of an accused who had shown a need for marihuana to controlhis epilepsy. The Court declared the possession offence --which the new Controlled Drugs and Substances Act, s. 4,continued -- was invalid as it applied to marihuana, and theCourt suspended the effect of its declaration for one year. Itgranted an exemption from the marihuana prohibitions in s. 4to the respondent Mr. Parker during the period of suspensionin order to permit him to possess marihuana for his medicalneeds.[10] Parker arose from facts which established that Mr. Parkerhad epilepsy, that he required marihuana because marihuana,taken with drugs prescribed by his doctors, helped to controlseizures which, if not controlled, could at minimum harm hishealth and at worst, end his life.[11] In its reasons, the Court of Appeal agreed with the trialjudge that marihuana had medicinal value, at least as to theTHC component, and perhaps as to other components.[12] At the end of the period of suspension, the Government ofCanada promulgated the MMAR. In its first iteration, the MMARestablished a regulatory scheme by which someone could applyfor an Authorization To Possess marihuana. An applicant neededsupport of one physician if the need were based on a terminalillness, one specialist if it were based on a listed conditionand associated with a terminal condition, and two specialistsif the need were based on another medical condition.[13] The first MMAR made no provision for access to marihuanaby those who were granted an Authorization To Possess.[14] There were further challenges, both to the Act, when itreplaced the Narcotic Control Act in 1996, and to the MMAR.The successful challenges prompted amendments to the MMAR,including provisions that permitted holders of anAuthorization To Possess to obtain authorizations that wouldpermit them to produce the marihuana they were authorized to

R. v. Smith Page 5possess. As well, third parties could obtain authorizations tosupply marihuana to those with an Authorization To Possess.[15] Although this is an admittedly rough summary, it is fairto say that after the first major change brought about byParker, subsequent changes in the law have been incremental.[16] The developments since Parker have led the accused hereto assert that government response to various courtdeclarations has been inadequate or, worse, obstructive. Someof those developments have led counsel for the Crown tosuggest that some court decisions have strayed into thelegislative or policy sphere, traditionally andconstitutionally the area where Parliament is supreme.Facts[17] Commendably, counsel agreed on admissions for the purposeof this voir dire only. These include:1. On December 3, 2009, Cst. Peter Gill of the VictoriaPolice Department attended to an apartment buildingat #205 — 865 View Street, Victoria, BritishColumbia, in response to a complaint from themanager of that building that he (the manager) hadreceived complaints of a strong offensive “skunky”odour coming from Apartment 204 (“the apartment”)and wafting throughout the building.2. Constables Gill and Sark arrived at the apartmentbuilding at about 3:00 p.m. and attended to the doorto the apartment. Constable Gill could hear loudmusic coming from the apartment, as well as smellbaking. Constable Gill knocked on the door to theapartment, announced himself, and then entered intoa brief discussion with Mr. Smith, who initiallydeclined to open the door to the apartment. After afurther brief conversation Mr. Smith opened the door

R. v. Smith Page 6to the apartment. Mr. Smith was alone in theapartment.3. Constable Gill produced his police identification toMr. Smith and stepped into the apartment, a smallbachelor suite of approximately 400 square feet,with a small bathroom as the only room with a doorin the suite. Constable Gill immediately noted astrong odour of baking within the suite, which wasquite warm, and that it appeared as if the suite wasbeing used solely as a bakery. There was nothing inthe suite indicative of anyone actually residing init — no couch, no bed, no television, no clothingnor personal articles.4. Directly beside Mr. Smith, just inside the doorwayto the apartment, in plain view, was a small tablewith a plastic baggy containing approximately onegram of what Cst. Gill believed to be marihuana,along with another gram of the same substance besidethe baggy along with scissors that appeared to havemarihuana residue on them.5. Constable Gill arrested Mr. Smith for possession ofthe marihuana he had seen in plain view, then calledfor assistance to deal with the balance of thevarious items in the apartment.6. A search warrant for the apartment was obtained andexecuted later that day, into the early morninghours of the next. The police seized from theapartment the forty-eight items set out on the fourpage Exhibit Flow Chart. It is admitted that thisExhibit Flow Chart accurately sets out thedescription of the exhibit seized, where it waslocated, who located it, and continuity of it afterseizure. The Exhibit Flow Chart is admitted for the

R. v. Smith Page 7truth of its contents. There is no issue as to thecontinuity of any exhibits. Continuity is admitted,as is the nature of all substances.7. The police videotaped their entry of the apartmentunder the search warrant, and videotaped theapartment itself as it was originally found. Thisvideotape is admitted.8. The quantities of marihuana derivatives that wereseized from the apartment were possessed for thepurposes of trafficking.9. For the purpose of the voir dire only, Mr. Smithadmits all elements of Counts One and Two.[18] The accused is employed by Leon Edward (Ted) Smith, towhom he is not related, to process dried marihuana into anumber of different products, including cookies, oil-filledcapsules, and other edible and non-edible products.[19] The accused works full-time for Mr. Ted Smith, and earnssomewhere between $10 and $13 per hour.[20] Mr. Ted Smith operates an enterprise called the CannabisBuyers Club of Canada (“Club”).[21] Although there is a society involved somehow, it appearsthat the Club is a sole proprietorship wholly owned by Mr. TedSmith.[22] The Club admits to membership those who can satisfy Mr.Ted Smith, or those he delegates to screen applicants formembership, that they suffer from a permanent physicaldisability or disease.[23] The applicant must produce satisfactory evidence of sucha condition, which could be in the form of a document from aphysician, a cancer test result, a laboratory test result, or,

R. v. Smith Page 8in some cases, evidence of a prescription for medicationsrecognized by Mr. Ted Smith as being ordinarily prescribed forpermanent physical disability or disease.[24] This distinguishes Mr. Ted Smith’s Club from CompassionClubs with which he is familiar. He understands thatCompassion Clubs require a form or certificate signed by adoctor before they will admit someone to membership, and turnaway applicants who cannot obtain a doctor’s signature.[25] Mr. Ted Smith’s Club is available to those who canpersuade him of their need, but who cannot obtain writtensupport for medical marihuana use from a doctor.[26] An applicant who cannot provide sufficient documentaryevidence of permanent physical disability or disease is turnedaway.[27] Mr. Ted Smith will not accept as sufficient formembership evidence emanating from naturopathic physicians,chiropractors, or doctors of Chinese medicine.[28] Mr. Ted Smith will not accept an applicant who has amental health disorder.[29] Mr. Ted Smith estimated that the Club has between 3,700to 4,000 members, and perhaps 5% to 10% of those hold a validAuthorization To Possess dried marihuana issued by HealthCanada under the MMAR.[30] Club rules are relatively simple, and include aproscription against reselling or giving away productspurchased from the Club, and a warning about operating heavyequipment or driving after consuming Club products.[31] Mr. Ted Smith says he has taken away 500 to 600memberships over the years because members have resold orgiven away cannabis products obtained from the Club.

R. v. Smith Page 9[32] Mr. Ted Smith buys marihuana in pound quantities, andpays employees, like the accused Mr. Smith, to render between5% and 10% of the dried marihuana into other forms likecookies, oils, capsules and ointments. The bulk of the driedmarihuana is packaged and sold through the store openlyoperated by the Club in downtown Victoria.[33] The Club operates its store under a non-profit societyformed by Mr. Ted Smith, and while the society maintainsminimal records, neither the Club nor the store keeps records.[34] Mr. Ted Smith estimates that the store generates revenueof about $6,000 to $6,500 per day. He estimates that between5% and 10% of that volume represents edible and otherproducts, not dried marihuana, and says this proportion iscloser to the 5% lower end. Mr. Ted Smith aims for a profitmargin of between 20% and 25%.[35] Neither the store nor the Club collects or remits HST,nor does the business pay income taxes.Scientific and Regulatory EvidenceExpert Evidence[36] The accused relied on the evidence of Dr. David Pate, whowas qualified as an expert in botany and pharmacology.[37] The Crown called Dr. Hanan Abramovici, who was qualifiedas an expert in pharmacology and neuroscience, and Mr. EricOrmsby, a manager at Health Canada. All three swore affidavitsinstead of producing written reports or opinions, in anapparent fusion of the documents referred to in s. 657.3 ofthe Criminal Code, R.S.C. 1985, c. C-46. There were noobjections to this procedure.[38] Dr. Pate and Dr. Abramovici, while well-meaning andhonest, strayed from objective opinion into advocacy, and eachappeared at times argumentative when testifying.

R. v. Smith Page 10[39] Dr. Abramovici’s criticism of Dr. Pate for makingassertions with little scientific support is well taken,although lack of science surrounding cannabis marihuana can bepartly explained by governmental and public attitudes towardthe plant and its products.[40] Dr. Abramovici lapsed into some of the same reliance onanecdotal evidence for which he criticized Dr. Pate: forexample, at the end of para. 23 of his affidavit, hespeculates that the number of people injured in accidentsarising from solvent-based extractions is probablyunderestimated as some reported delaying medical treatmentbecause of fear of prosecution.[41] Dr. Pate seemed a bit too willing to accept some benefitsof cannabis products as possible, based on his common sense orextrapolation from other evidence.[42] Dr. Abramovici swore to an affidavit that contained, inits final four paragraphs, an argument in the form ofconclusions that was inserted by his supervisor, Dr.Desjardins. Although Dr. Abramovici swore that he agreed withthe contents of these paragraphs, his supervisor’s input wasnot readily apparent, and her willingness to interfere in hisopinions is troubling.[43] The way in which Dr. Pate gave some of his evidencesuggested that he was both amused and frustrated by governmentattitudes toward cannabis marihuana and its components, givenits pervasiveness in both the underground economy and itsgrowing acceptance as medicine. This has lessened the weight Iput on Dr. Pate’s evidence.[44] The way in which Dr. Abramovici gave some of his evidencesuggested that he was only too aware that Health Canada washis employer. While I accept his assurance that his opinionswere his, and not dictated to him by his employer, theinterference by Dr. Desjardins, coupled with the tone of Dr.

R. v. Smith Page 11Abramovici’s affidavit and his oral evidence, have lessenedthe weight I put on his evidence.Dr. Pate’s Evidence[45] From Dr. Pate’s evidence I accept:• The active compounds of the cannabis plant aremanufactured in cells at the base of, and stored in,structures called glandular trichomes.• The main active compounds are primarilytetrahydrocannabinol (“THC”) and cannabidiol (“CBD”).• Generally speaking, the concentration of glandulartrichomes increases as one moves higher up the cannabisplant, with fewer glandular trichomes near the root,and many near the top.• Viewed microscopically, the glandular trichomes appearto be stalk rising from the plant surface with aglobular top. Dr. Pate accurately analogized thisstructure to a golf ball on a tee.• These glandular trichomes contain resin, and it is inthe resin where the plant secretes THC and CBD.• The highest concentration of glandular trichomes isfound on or near the outer surface of unfertilizedfemale flowers.• From the perspective of either a medicinal orrecreational marihuana user, it is the contents of theglandular trichomes that are important.• There are various methods for separating the glandulartrichomes from the plant itself: one can agitate driedflowers from the marihuana plant over a fine mesh orscreen, causing the glandular trichomes to fall off and

R. v. Smith Page 12pass through the mesh, leaving the host plant materialbehind; one can immerse the plant material in coldwater, then strain the water through a fine mesh tocapture the glandular trichomes.• Both these methods remove the glandular trichomesintact, with the resin still contained inside.• If the results of these methods of extraction arecompressed, it is often referred to as “hash” if thedry sieve method is used, or “bubble hash” if it is wetsieved. If it is not compressed, but left in drypowdered form, it is often referred to – erroneouslyaccording to Dr. Pate – as “kif” or “pollen.”• Other methods extract the resin from the glandulartrichomes: one might rub the flowers in their hands,then scrape the resin off the hand; one could soakeither the trichome-bearing plant, or just separatedtrichomes themselves, in fat such as butter or foodgradeoil, as the contents of glandular trichomes arefat soluble. The same applies to alcohol, as theglandular trichome contents are also alcohol soluble.• The results of fat-based extraction methods are oftenreferred to as “cannabis cooking oil” or “cannabisbutter.”• Other methods involve using petrochemical solvents suchas petroleum ether to take up the resin from theglandular trichome, then evaporating off the solvent.The results of the solvent-based extraction method isoften called “hash oil.”• These methods result in separation of THC, CBD, andother potentially active ingredients called terpenesfrom the plant matter.

R. v. Smith Page 13• There is no known medical utility to the plant matterthat is left behind after the glandular trichomes, ortheir contents, are separated from the host cannabisplant, or in the glandular trichomes themselves afterthe resin is extracted from them.• A caveat on that statement is the possibility thatthere may be some cannabinoid inside a leaf, not asreadily accessible or as easily rendered as theglandular trichomes on the leaf surface.• If the glandular trichomes containing the activecompounds are not separated from the cannabis plant, auser can access the active compounds by smoking driedplant material with the glandular trichomes stillattached.• Release of the active compounds does not require heatas high as that produced by smoking, and an alternativeway of inhaling the active compounds is through avaporizer, which releases the active compounds at alower temperature than smoking. Vaporizers costapproximately $500.00.• The medical benefits from THC include anti-inflammatoryand anti-spasmodic effects, increasing appetite inthose whose appetites are suppressed by medicaltreatments such as are administered to AIDS patients,and alleviation of nausea in those taking chemotherapyfor cancers.• The well-known non-medical effect of THC is itspsychoactive effects, an unwanted side effect from amedical point of view, a primary benefit from arecreational user’s point of view.

R. v. Smith Page 14• CBD has some anti-inflammatory benefits, including someanalgesic effects.• There may be some potential anti-psychotic benefit fromCBD in high doses, but that has not yet been fullystudied.• The glandular head of the trichome also is known tocontain terpenes.• Terpenes are compounds commonly associated with aromas,for example pine or mint.• CBD also has some potential to inhibit the metabolismof THC by the liver, thus reducing the body’s abilityto intercept and eliminate the medical benefit of THC.• There are different mechanisms for getting thetherapeutic components, whether THC or CBD into thebody, and Dr. Pate described each.• One can ingest the compound orally: if one were takingTHC for gastro-intestinal conditions such as Crohn’sdisease or Irritable Bowel Syndrome this would arguablydeliver the therapeutic benefit more directly to thesite of pathology.• Oral ingestion also has the benefit of prolonging theeffects of the drug in the system, with thecorresponding detriment of taking longer to build atherapeutic level of the drug than would occur withsmoking, for example.• Because of the slow build-up of the drug in the body,dosages are more difficult to manage, as it takes sometime to determine when the optimum therapeutic levelhas been reached.

R. v. Smith Page 17or faith with which many medical users have approached theiruse, and has been made more difficult to achieve or to measureby the historical proscriptions against marihuana use.[47] Dr. Abramovici pointed out problems that might arise fromthe lack of quality control or standards being applied orenforced in the underground or illegal marihuana market.[48] Dr. Abramovici was responsible for updating the HealthCanada publication Information for Health Care Professionals,which deals with cannabis marihuana. The front page of thisdocument bears a sub-heading “Marihuana (marijuana, cannabis)dried plant for administration by ingestion or other meansPsychoactive agent.”[49] The bottom of the front page bears this warning:“Marihuana (marijuana, cannabis) is not an approvedtherapeutic substance in Canada and no marihuana product hasbeen issued a notice of compliance by Health Canadaauthorizing sale in Canada”.[50] The document itself is a compilation of peer-reviewedliterature and published materials assembled by Dr.Abramovici.[51] In the portion of the document that deals with thechemistry of cannabis marihuana, it states at s. 1.2:“Marihuana smoke contains many of the same carcinogenicchemicals found in tobacco smoke.” The section goes on tocompare in a general way the relative potential harms fromsmoking marihuana as opposed to tobacco, without arriving at aconclusion.[52] Later, in s. 8.1, the document reaffirms the carcinogenicaspects of smoked marihuana, but says that the epidemiologicallink between marihuana use and cancer is inconclusive.[53] At s. 8.2, the document reads:

R. v. Smith Page 19their consequent exclusion through Schedule 2 of the NaturalHealth Products Regulations.[59] Marihuana produced under contract to Her Majesty theQueen in Right of Canada or under a designated-personproduction licence as defined in the MMAR is exempt from theapplication of the Food and Drugs Act and the Food and DrugRegulations by the Marihuana Exemption (Food and Drugs Act)Regulations, SOR/2003-261.[60] If the ingredients of a substance offered as a medicineare not fully identified, or if the quantities of anyingredients that have been identified are not known, there arerisks that include over-dosing and under-dosing, complicationsarising from combining the effects of cannabis marihuana withprescribed or other drugs, and risks of contamination oradulteration in the unregulated production process.[61] There is an obvious difference between those who producetheir products in an industry that is tightly regulated, suchas the pharmaceutical drug industry, and unregulated producerssuch as the Club: with the former, there will be standards ofproduction and inspection that ensures consistency of content,predictability of results of use, and greater assurance thatcontaminants will be eliminated or prevented in themanufacturing process; by contrast, in a bakery such asoperated by the Club and staffed by the accused, the cannabismarihuana plants used can only be subjected to visualinspection for contaminants, the processes for renderingactive compounds out of the cannabis plant are unsophisticatedand unregulated, and the active compounds contained in thefoods, oils, and topical products are not capable of precisemeasurement.[62] Anecdotal reports of the efficacy of cannabis products inthe treatment or management of various diseases and conditionsshould be approached with some caution: there is the

R. v. Smith Page 21Crown and Defence Positions[68] The Crown also argued that some of the claims made by theClub recipe book support the argument in favour of sustainingthe current regulatory scheme. It is convenient to label theseas misleading advertising questions.[69] The recipe book makes claims such as:Cannabis can be used to replace almost any type ofallopathic medicine, from diuretics to anti-depressants –ear oil; throat sprays and salves that reduce tumors;Gayle’s Super Treats are medicinal biscuits for dogs.Veterinarians have watched tumors disappear, arthritisreverse, and heard chronic cough go away;To heal broken bones, keep a Cannapatch in place for 10days to 3 weeks (changing every couple of days);Tumors of all types (including breast and fibroids) havebeen reduced with the use of cannabis.[70] Crown, in argument, likened these claims to a sales pitchfor snake oil. Crown enlisted these implausible claims to showthe risks posed by any loosening of the current restrictionson lawful possession of cannabis, and thus to support Crown’sargument in aid of continuing strict control on medicalmarihuana.[71] In oral argument, counsel for the Crown maintained thatthe public needs protection from claims such as thosesuggesting that a marihuana poultice could heal a broken bone.Yet that argument pays too little attention to the apparentfact that government has elected to keep marihuana beyond thereach of its various agencies set up to protect the publicfrom false or overblown claims, such as through the NaturalHealth Products Regulation, for example, or perhaps the CanadaConsumer Product Safety Act, S.C. 2010, c. 21.[72] The Crown argued strenuously that the risk of diversionof derivative substances such as THC-infused oils wasunacceptably high when compared to their unproven benefits,and, as well, great care had to be taken when contemplating a

MIRATOR HUHTIKUU/APRIL/APRIL 2002 22linnun hahmossa. Skandinaaviseen uskomusperinteeseen kuuluivat käsityksettietäjän korpin hahmossa liikkuvasta sielusta sekä maailmanpuun latvassa asuvastamyyttisestä kotkasta selittävät tarinoissa esiintyneet lintulajit. Vuodelta 1148olevassa Tundaluksen visiossa kuvattiin pitkäkaulaista, terävänokkaista jarautakyntistä sieluja nielevää lintua, joka asui manalassa. Kun tämä mielikuvayhdistetään keskiaikaiseen kristilliseen traditioon, jonka mukaan Jumala tai hänenenkelinsä ja paholainen odottivat kuolinhetkellä ruumiista poistuvaa sielua, onhelppo ymmärtää, mikä kotka vei Britan pois. 132 Aihe tunnetaan myöskirkkomaalauksista. 133 Samankaltaisia uskomuksia sielun noutajasta tunnetaan myösmuualta. Kun esimerkiksi Ranskassa poltettiin 1630-luvulla paholaisen kanssakirjallisen sopimuksen tehnyt isä Urban Grandier, hänen ympärillään ennen rovionsytyttämistä kierrellyt suuri lihakärpänen tulkittiin sielua noutamaan tulleeksiBelsebuliksi, joka oli kärpästen jumala ja yksi pääpaholaisista. 134 Brita Canoninkohdalla mainittiin, että paholainen olisi tullut noutamaan hänen ruumiinsa vähänennen mestausta ja jättänyt tilalle Britaa muistuttavan pölkyn, jonka mestaaja oliteloittanut. 135 Esimerkiksi Englannissa uskottiin, että silloin kun tuonpuoleisessasijainneeseen haltijamaailmaan (fairyland) siirryttiin ruumissa, se joko katosi taisen tilalle jätettiin pölkky, joka kuolevaisten silmissä näytti poismenneeltäihmiseltä. 136Kristilliseen symboliikkaan perustui myös ajatus siitä, että pahojen ihmistensielua edustaisi musta lintu. Kansanperinteessä vallitsikin yleinen käsitys, jonkamukaan hirttäytyneen Juudaksen suusta lensi musta korppi. Viattoman sielu nähtiinvastaavasti valkoisena lintuna — yleensä nimenomaan kyyhkysenä. 137Kuninkaallisen komission suorittamien kuulustelujen aikana kävikin selväksi, ettälasten eniten pelkäämä noita oli heti kirkkoherra Fonteliuksen vaimon jälkeen juuriCanonin Brita. Sen sijaan kahta viimeiseksi teloitettua — Gubb Elisabetia javartiomies Håkanin anoppi Kerstiniä — vastaan todistaneiden lasten määrä olivähäinen ja epäilykset rajoittuivat suppeaan piiriin. Koska heidän teloituksestaanraportoineet lapset eivät kuuluneet tähän joukkoon, he saattoivat puhua kyyhkysestä.Uudestakaarlepyystä, Vaasasta tai muualta Suomesta taltioidut Blåkullatunnustuksetja –todistukset poikkeavat eräässä suhteessa ruotsalaisista: viittauksetnoitien metamorfoosiin puuttuvat lähes kokonaan. Sama pätee suomalaiseenperinneaineistoon laajemminkin. Pohjan akkaa koskevien aiheiden lisäksiesimerkiksi noitien kilpailusta kertovasta aineistosta tunnetaan vain yksi viittausmetamorfoosiin. 138Suomalainen ’noita’ poikkesi troll-perinteestä juontavista noitakäsityksistä.Se tarkoitti alun alkaen šamaania eli yhteisössä elänyttä kaiken uskon hallitsijaasekä tämän- ja tuonpuoleisen maailman välittäjää. Parantamisen ohella šamaanisaattoi palauttaa yhteisön tasapainon sen kriisin hetkillä. Lisäksi šamaani toimiyhteisön tietäjänä, ennustajana ja neuvonantajana. 139 Siirtyminen keräilytaloudestakaskitalouteen muutti yhteisön riittiekspertin toimintaa ja suuntasi sitäaikaisemmasta poikkeavalla tavalla. Tietäjän toiminnan painopiste siirtyisaaliseläinten sielujen käsittelemisestä keskenään kilpailevien yhteisön jäsententoimintaan ja suhteisiin. 140 Seurauksena oli jo šamanismista tuttujen parantamista ja

R. v. Smith Page 27that are said to be represented by theprohibition.(iii) The absence of a clear legal standard maycontribute to a violation of fundamentaljustice.(iv) If a statutory defence contains so manypotential barriers to its own operation thatthe defence it creates will in manycircumstances be practically unavailable topersons who would prima facie qualify for thedefence, it will be found to violate theprinciples of fundamental justice.(v)An administrative structure made up ofunnecessary rules, which result in anadditional risk to the health of the person,is manifestly unfair and does not conform tothe principles of fundamental justice.[95] Crown and defence focused much of their argument on thebalance between the state interest and the impairment of thes. 7 right. At the core of the dispute is the identificationof different legitimate state interests.[96] Crown argued that one legitimate interest of the stateserved by the MMAR, as the regulations are currently framed,is to prevent or to control the risk of diversion of medicalmarihuana from lawful to unlawful streams. The requirementthat medical marihuana remain in its dried form is a primarymechanism by which diversion is made difficult, since in itsdried form marihuana is more readily quantified by police orregulators, and thus it can easily be determined whether anyparticular quantity seen exceeds the quantity permitted by anauthorization, whether to possess or to produce.[97] The defence responds that the legitimate state interestis harm avoidance, and that interest is not served byprohibiting derivatives of marihuana.[98] The Crown’s argument contemplates the possibility thatsomeone to whom Health Canada has issued an Authorization ToPossess will abuse the privilege represented by theauthorization in order to engage in illegal activities. The

R. v. Smith Page 28Crown argues that such a person may more easily mask theirillegal activities if they can render dried marihuana intoother forms less easily measured or quantified by unaidedobservation.[99] While it seems logical that it is easier to judge bylooking whether a quantity of dried marihuana is within limitsset out in an authorization than it would be if the activeingredient had been infused into oil or butter, some directevidence on the point would have been helpful. If it is beyondthe ability of the scientific staff of Health Canada toascertain that a given quantity of dried marihuana, ifrendered down so as to separate its glandular trichomes,would, if infused into oil or butter, yield a measurablequantity, in whatever unit of measurement one might select, Iwould have expected to hear some better evidence of that, andI did not.[100] This is quite apart from the fact that one who has anAuthorization To Possess marihuana, who chooses to render thedried marihuana, infuse it into butter, and bake it intocookies, is amenable to control through the restrictions onthe amount of dried marihuana he or she can obtain.[101] The defence argues that it is arbitrary to expose someonewho has a valid Authorization To Possess to criminal sanctionif they prefer to take the medicine orally rather than bysmoking it.[102] The Crown says that the Charter does not protect a rightto tasty cookies: someone who prefers to take their marihuanaorally can eat it or bake the dried marihuana into cookies, inspite of some evidence that in its dried form, marihuana isnot particularly palatable.[103] The Crown’s argument trivializes this aspect of thearbitrariness issue: the question is not whetherconstitutional protection is sought for tasty cookies, it is

R. v. Smith Page 29whether a prohibition against someone granted a permit tolawfully possess a medicinal substance that would be illegalbut for the permit should not be restricted in how they chooseto take the medicine unless the restriction serves a stateinterest that has more weight than the individual’s choice onhow to take their medicine.[104] The defence argues that the restriction to driedmarihuana compels people to smoke to get the medical benefitfrom the drug, and that smoking the drug is more unhealthythan eating it or applying it topically.[105] The Crown says that no additional risk has been shown onthe evidence.[106] It seems to me that the recital of the risk of smokingthe drug set out in the Health Canada Information for HealthCare Professionals is sufficient to show that there is someadditional risk from smoking, over and above any risk arisingfrom taking the drug orally.[107] As well, this Crown argument does not deal with one ofthe products produced by the accused, namely capsules filledwith oil that has been infused with THC and whatever else isrendered from the dried plant material by the accused. Thepolice investigation of the “bakery” turned up several bottlesof oil labeled “Ryanol,” one of which was near some emptycapsules and a tray apparently designed to facilitate fillingempty capsules. There is no dispute that one of the productsproduced by the accused and offered for sale by the Club wasRyanol capsules, filled with edible oil infused with THC, andeasily swallowed. The production by the accused of the Ryanolcapsules takes the issue beyond the “tasty cookie” level onwhich the Crown would like it decided.[108] I have so far avoided dealing with the arguments based oninflated claims to the efficacy of some of the productsoffered for sale by the Club.

R. v. Smith Page 30[109] This voir dire has been complicated by a sense that theaccused is in many ways a surrogate for Mr. Ted Smith and theClub. Many of the Crown arguments concerned what the Crownsaid were misleading claims of the medical efficacy of many ofthe products offered for sale made in Club literature.[110] Inflated claims, false or misleading advertising and suchmatters can be dealt with in ways other than unnecessarycriminalization of the way in which some people choose to takemedicine to which they are entitled. One need only look at therecently-enacted Canada Consumer Product Safety Act to find anexample.[111] Some general considerations bear repeating.[112] Courts should not decide issues of law, particularlyconstitutional issues, that are not necessary to theresolution of the matter before the court: see, for example,Phillips v. Nova Scotia (Commission of Inquiry into theWestray Mine Tragedy), [1995] 2 S.C.R. 97, at paras. 5-11; R.v. Banks, 2007 ONCA 19, at para. 25.[113] Bearing in mind the respective constitutional positionsof parliament and the courts, these excerpts from Schachter v.Canada, [1992] 2 S.C.R. 679, at paras. 26 and 31 respectively,are apt:Generally speaking, when only a part of a statute orprovision violates the Constitution, it is common sensethat only the offending portion should be declared to beof no force or effect, and the rest should be spared ...... Therefore, the doctrine of severance requires that acourt define carefully the extent of the inconsistencybetween the statute in question and the requirements ofthe Constitution, and then declare inoperative (a) theinconsistent portion, and (b) such part of the remainderof which it cannot be safely assumed that the legislaturewould have enacted it without the inconsistent portion.

R. v. Smith Page 31Breach of the Principles of Fundamental Justice[114] I conclude that the restriction to dried marihuana in theMMAR does little or nothing to enhance the state’s interests,including the state interest in preventing diversion of adrug, or controlling false and misleading claims of medicalbenefit. I find that the restriction is arbitrary, and thatits engagement of the rights to liberty and security does notaccord with the principles of fundamental justice, andtherefore infringes those rights.Section 1: Reasonable and demonstrablyjustified in a free and democraticsociety[115] The Crown has the burden of showing on a preponderance ofprobabilities that this dried marihuana limitation on theliberty and security rights protected by s. 7 is reasonableand demonstrably justified in a free and democratic society(R. v. Oakes, [1986] 1 S.C.R. 103).[116] The Crown may do so by, first, showing that thelegislative objective underlying the restriction is pressingand substantial, and, second, by showing that the means chosenare reasonable and demonstrably justified. The second stage inturn requires that the Crown show that the measure isrationally connected to the objective and thereby is fair andnot arbitrary; that there is a reasonable degree ofinfringement on the right; and that the benefits and costs ofthe provisions are proportionate.[117] I accept that one legislative objective of therestriction to dried marihuana is to limit the risk that theregime making marihuana available for medical purposes mightfacilitate the trafficking of illegal drugs. I accept that theobjective of limiting or decreasing the trafficking in apsychoactive substance is sufficiently important to warrantoverriding a constitutionally protected right or freedom. Ialso accept that Parliament’s interest in controlling the

R. v. Smith Page 33based on risk of diversion, also loses much force in light ofthe Crown’s concession that under the current regulatoryscheme, someone with an Authorization to Possess mightlawfully bake their dried plant material into a cookie batteror any other food, mix it into a salve, or otherwise deal withit in a similar fashion, so long as they used it as driedmaterial.[122] I conclude that there is little rational connectionbetween the restriction to dried marihuana and the legitimateobjective of preventing diversion of lawful medical marihuanainto the illegal market.[123] I conclude that the restriction to dried marihuanaunnecessarily, and therefore to an unreasonable degree,impairs the security right to choose how to ingest themedicinal ingredients in the safest and most effective manner.Given these two findings under the second stage of the s. 1analysis, I also find that it intrudes disproportionately onthe constitutionally protected rights.[124] Therefore, the dried marihuana restriction’s infringementof s. 7 rights to liberty and security of the person is notsaved by s. 1.Remedy[125] The question becomes what remedy is appropriate, giventhe considerations just outlined.[126] The word “dried” appears 58 times in the MMAR. Many ofits appearances are in formulae by which one calculates themaximum amount or number of marihuana or marihuana plants thatmay be possessed under the permits issued pursuant to theregulations.[127] I have reviewed the regulations, including theseformulae, and have concluded that it would do no greater

R. v. Smith Page 34violence than necessary to remedy the constitutional breach todelete the word “dried” wherever it appears in the MMAR, and Iso direct.[128] As a consequence, the definition of “dried marihuana”becomes superfluous and is also deleted.[129] This leaves in place the requirement that one obtain andretain the authorizations provided under the MMAR in order tolawfully access marihuana for medical purposes, but removesthe artificial restriction of that lawful use to marihuana inits dried form.Judicial Stay[130] Judicial discretion to grant a stay has been discussed inR. v. Nixon, 2011 SCC 34. Two approaches to a judicial staycan lead to the court’s use of its discretion, under theCharter, s. 24(1), to grant an appropriate and just remedy inthe circumstances. First, a Charter infringement not saved bya s. 1 analysis may lead the court to exercise its discretionunder s. 24(1) to grant a judicial stay (or another remedy).Where the court finds a Charter violation, the court muststill balance the violation with the remedy, and might notalways find that a judicial stay serves societal interests (R.v. O’Connor, [1995] 4 S.C.R. 411, at para. 69). Second, abuseof process itself, while formerly a distinct common lawdoctrine, has merged with s. 7 (O’Connor) and, where found,could also lead to use of s. 24(1) to produce a judicial stay.Abuse of process can arise from unfairness of the accused’strial (Nixon, at para. 39) or from a residual category of acts“tending to undermine society’s expectations of fairness inthe administration of justice” (Nixon, at para. 41). Where inthe latter form, as defence counsel alleges in this case:A stay of proceedings will only be appropriate when: “(1)the prejudice caused by the abuse in question will bemanifested, perpetuated or aggravated through the conductof the trial, or by its outcome; and (2) no other remedy

R. v. Smith Page 35is reasonably capable of removing that prejudice” (Nixon,at para. 42).[131] In this case, I have found there has been a violation ofliberty and security rights of the medical marihuana usersprotected by s. 7, as well as Mr. Smith’s liberty right.However, I find that society’s interests in having the chargesagainst Mr. Smith tried on their merits outweigh the violationof Mr. Smith’s liberty right, at least sufficiently to denyhim the judicial stay he seeks.[132] Second, defence would have me find abuse of process inthe government’s response to court decisions since Parker thatdisregards some of those decisions entirely, or that respondsin such a minimal fashion as to amount to a cavalier treatmentof courts and their decisions on constitutional matters.[133] I do not share the defence view of government’s responseto the various court decisions. This is an area where asubstance that continues to be illegal, and constitutionallyso (Malmo-Levine), must also, since Parker, be available tothose with a demonstrated medical need. How to achieve abalanced solution is a question that must be left tolegislators. The accused would have me ascribe bad faith ormotive to Parliament’s serial responses, through the MMAR, tothe court decisions that prompted changes. In my view, a courtshould be slow to attribute such bad faith or motive tolegislative response to court decisions.[134] I do not find a lack of good faith or an abuse of theprocesses of the court in this case that would warrantconsideration of a judicial stay of proceedings, and thatapplication is denied.”R.T.C. Johnston, J.”The Honourable Mr. Justice Johnston