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At Smith’s 2012 trial, lawyer Kirk Tousaw argued the restrictive regulation was unconstitutional and arbitrary and did not further the government’s interest in protecting public health and safety. Instead, it forces the critically and chronically ill to smoke medical marijuana, which is potentially harmful, he said.

Even though Smith is not a medical marijuana user, a judge agreed and found that criminalizing a patient’s choice of smoking or eating his or her medication is an unwarranted infringement of security of the person rights guaranteed under Section 7 of the Charter.

Smith was acquitted of the drug offences. The Crown appealed and lost. The majority decision of the British Columbia Court of Appeal ruled the government had no basis to assert that transforming dried marijuana into tea or baking oil put individuals at greater risk. It gave the government until August to draft new regulations to allow medicinal marijuana users to use products made from cannabis extract. That can include creams, salves, oils, brownies, cakes, cookies and chocolate bars.

The Public Prosecution Service of Canada is now asking the Supreme Court to strike down that judgment, rendered last August. It also contends that since Smith is not a medical marijuana user, he should have no standing to challenge the constitutional validity of the regulation.

The prosecution service declined to comment for this story. The government does not endorse the use of marijuana, but the courts have required reasonable access to a legal source of marijuana when authorized by a physician. The government has consistently argued that its medical marijuana regulations are intended to protect Canadians’ health and safety.