In a huge victory for Canada’s medical marijuana patients, people authorized to use medicinal cannabis can use it in infused edibles and drink it in tea — not just smoke the dried flowers — the B.C. Supreme Court ruled on Friday.

Justice Robert Johnston said the restriction to dried cannabis only in Health Canada’s Medical Access Regulations is unconstitutional, violating Section 7 of the Charter of Rights, reports Louise Dickinson at

“The remedy for this breach is to remove the word ‘dried’ where it appears in the Marijuana Medical Access Regulations and I so order,” Justice Johnston said.

A constitutional challenge by Owen Smith, 29, head baker for the Cannabis Buyers’ Club of Canada, resulted in Friday’s decision.

Smith was charged on December 3, 2009, with possession for trafficking and unlawful possession of marijuana. Two years before, the manager of the Chelsea apartments had complained to police about a “strong, offensive” smell throughout the building.

Police got a search warrant for Smith’s apartment and found cannabis-infused olive and grapeseed oil, along with pot cookies intended for sale through the club.

Smith was making cannabis-infused oils, topicals and edibles for the club at the time he was charged.

His trial began with a “voir dire” (trial within a trial) in january, on a charter application challenging the MMAR restrictions allowing only dried medical marijuana.

The laws were unconstitutional and arbitrary and did not further the Canadian government’s interest in protecting the health and safety of the public, argued defense attorney Kirk Tousaw. Instead, the regulations forced critically and chronically ill patients to smoke medical marijuana.

“Even an authorized person, under Health Canada’s regime, is unable to produce cannabis butter to make cookies to eat before bed, or when they get up in the morning to deal with chronic pain,” Tousaw told the court.

Patients witnesses testified during the trial that they wanted to be allowed to drink cannabis-infused teas, eat pot medibles, or apply infused topical oils. These routes of administration are less harmful than smoking or vaporizing dried marijuana, Tousaw said.

The attorney expressed gratitude for Justice Johnston’s decision. “This will pave the way for permitted users to possess and produce this medical substance in forms other than dried,” Tousaw said. “Permitted users can drink it in tea or bake it with edible oils.”

Tousaw had also sought a judicial stay of proceedings for Smith, but that application was dismissed by Johnston. Smith is scheduled to appear in court April 25 to set a date for jury selection and trial.

“We hopt to convince the jury to acquit Smith on the basis of the common law defense of medical necessity,” Tousaw said. “In other words, because these products were unlawful at the time he was producing them, it was necessary for him to do it to alleviate the suffering of chronically ill Canadians.”

“I’m really proud of all the work we’ve done so far,” Owen Smith said outside court. “Lots of patients and members of the club have been very supportive. We’re going to keep going and do just as good a job in the next round in front of a jury.”