Her Majesty the Queen v. Owen Edward Smith

(British Columbia) (Criminal) (As of Right)




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Charter of Rights - Right to life, liberty and security of person - Medical marihuana users limited by regulation to use of marihuana in form of dried plant material - Whether restriction in Marihuana Medical Access Regulations, SOR/2001-227, as amended, infringes s. 7 of Canadian Charter of Rights and Freedoms - Criminal law - Procedure - Standing - Whether respondent has standing to challenge constitutional validity of Marihuana Medical Access Regulations.

The respondent, Mr. Smith, was charged with possession for the purpose of trafficking of tetrahydrocannabinol (THC) and possession of dried marihuana. Although not a medical marihuana user himself, at trial he successfully challenged the constitutional validity of the Marihuana Medical Access Regulations (“Regulations”), which limits the form of marihuana medical users of the substance can lawfully use to dried plant material. The 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 marihuana” from the Regulations. Mr. Smith was ultimately acquitted on both counts, the Crown having called no evidence. A majority of the Court of Appeal dismissed the appeal. Chiasson J.A., dissenting, would have allowed the appeal and ordered a new trial for two reasons. First, in his view, Mr. Smith did not have standing to bring the constitutional challenge. Indeed, unlike in the cases of R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, and R. v. Morgentaler, [1988] 1 S.C.R. 30, Mr. Smith had not been charged under the legislative provision that was the direct subject of the constitutional challenge, and accordingly, any declaration that the limitation in the Regulations is of no force and effect could not give him a defence to the charges of possession and trafficking. Second, the Regulations did not impinge on the liberty or security of the person interests of medical marihuana users. Alternatively, if those interests were affected, the Regulations did not offend any principle of fundamental justice.

Lower Court Rulings

April 13, 2012
Supreme Court of British Columbia

149345-2, 2012 BCSC 544
See file
August 14, 2014
Court of Appeal for British Columbia (Vancouver)

CA040556, 2014 BCCA 322
Appeal dismissed