In R. v Owen Smith, the BC trial judge found that the regulatory scheme breached s. 7 of the Charter, was arbitrary, and could not be justified. He struck the word “dried’ and the definition of “dried marijuana” from the Regulations. A majority of the BC Court of Appeal dismissed the appeal, but varied the trial judge’s order by suspending the effect of the declaration for one year to give Parliament a chance to respond.

This decision was appealed by the Crown and is scheduled to be heard by the Supreme Court of Canada on March 20, 2015.

Until the SCC rules, the R. v Owen Smith decision makes it constitutionally protected in BC to possess and consume extracts by MMAR patients subject to the Allard injunction.  The decision does not cover MMPR patients per se but an MMPR patient charged in B.C. should be able to use the reasoning in the R. v Owen Smith decision to successfully defend against the charge.  Since this is a BC court decision, it is not binding on courts in other provinces and territories of Canada. So, neither MMAR nor MMPR patients outside of BC risk being charged and, potentially, convicted for marijuana extract possession and consumption.   I say “potentially” because Court of Appeal decisions are considered by lower courts in other provinces, so a person charged may use the same charter grounds to avoid a conviction.

In March, if the SCC upholds the BCCA decision than all Canadian MMAR injunction-protected patients and MMPR patients could use R. v. Owen Smith to avoid a conviction and Parliament would have one year to respond.  However, there are other possible outcomes….For example, the SCC could find that Owen Smith did not have standing to argue the constitutionality of the law and in doing so the SCC could avoid the issue altogether.  Also, even if the BCCA decision is upheld, there would continue to be uncertainty until Parliament reacts and, even then, such a reaction may be subject to further constitutional challenges.

Bottom line is that barring a strong decision by the SCC overturning R. v Owen Smith on constitutional grounds (i.e. not standing) we are in for a long period of uncertainty regarding the legality of extracts.

If you have any questions or would like more information regarding applying to be a licensed producer under the MMPR, Canada’s Marijuana for Medical Purposes Regulations, call or email Koby Smutylo at 613 869 5440 or koby@lawyercorporation.ca.