R. v. Smith Transcripts Volume 1

Court of Appeal CA040556
COURT OF APPEAL ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA, FROM THE ACQUITTAL OF THE HONOURABLE MR. JUSTICE JOHNSTON, PRONOUNCED ON THE 10TH DAY OF JANUARY 2013.
REGINA
APPELLANT
v. OWEN EDWARD SMITH

RESPONDENT
TRANSCRIPT
Volume 1 (Pages 1 - 156)
Public Prosecution Service of Canada 900 - 840 Howe Street Vancouver, B.C. V6Z 2S9 Phone: (604) 775-7475 Fax: (604) 666-1599 Solicitors for the Appellant Kirk Tousaw 1135 Fisher Road Cobble Hill, B.C. V0R 1L4 Phone: (604) 836-1420 Solicitor for the Respondent
W. Paul Riley Counsel
Kirk I. Tousaw Counsel
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149345-2 Victoria Registry
In the Supreme Court of British Columbia

(BEFORE THE HONOURABLE MR. JUSTICE JOHNSTON) Victoria, B.C. January 16, 17, 18, 19, 20, 23, 24, 25, 26, 2012 February 1, 6, 7, 8, 27, 28, 29, 2012 March 1, 2012 April 13, 2012 January 10, 2013 REGINA v. OWEN EDWARD SMITH
PROCEEDINGS AT TRIAL
Crown Counsel:
P. Eccles K. Guest K. Tousaw
Defence Counsel:
Document1
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INDEX
VOLUME 1 PROCEEDINGS AT TRIAL - JANUARY 16, 2012 Proceedings .......................................................................................................... 1 WITNESSES FOR THE CROWN COLIN BREWSTER ................................................................................ 12 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. ECCLES: ................. 12 CROSS-EXAMINATION ON VOIR DIRE BY MR. TOUSAW: .................. 35 WITNESSES FOR THE ACCUSED LEON EDWARD SMITH .......................................................................... 42 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............... 43 PROCEEDINGS AT TRIAL - JANUARY 17, 2012 Proceedings ........................................................................................................ 76 WITNESSES FOR THE ACCUSED LEON EDWARD SMITH .......................................................................... 80 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............... 80 CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: ................. 140 PROCEEDINGS AT TRIAL - JANUARY 18, 2012 Proceedings ...................................................................................................... 156 VOLUME 2 PROCEEDINGS AT TRIAL - JANUARY 19, 2012 Proceedings ...................................................................................................... 157 WITNESSES FOR THE ACCUSED LEON EDWARD SMITH ........................................................................ 158 CROSS-EXAM ON VOIR DIRE BY MR. ECCLES, CONTINUING: ....... 158 RE-EXAMINATION ON VOIR DIRE BY MR. TOUSAW:........................ 212 GAYLE QUIN ......................................................................................... 217 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 218
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PROCEEDINGS AT TRIAL - JANUARY 20, 2012 Proceedings ...................................................................................................... 233 WITNESSES FOR THE ACCUSED GAYLE QUIN ......................................................................................... 242 EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: ... 243 CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: ................. 270 PROCEEDINGS AT TRIAL - JANUARY 23, 2012 Proceedings ...................................................................................................... 288 WITNESSES FOR THE ACCUSED DAVID PATE ......................................................................................... 288 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 291 VOLUME 3 PROCEEDINGS AT TRIAL - JANUARY 24, 2012 Proceedings ...................................................................................................... 352 WITNESSES FOR THE ACCUSED DAVID PATE ......................................................................................... 352 EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: ... 352 CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: ................. 356 RE-EXAMINATION ON VOIR DIRE BY MR. TOUSAW:........................ 429 PROCEEDINGS AT TRIAL - JANUARY 25, 2012 Proceedings ...................................................................................................... 435 WITNESSES FOR THE ACCUSED SANDRA LARGE .................................................................................. 435 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 435 CROSS-EXAMINATION ON VOIR DIRE BY MS. GUEST: ................... 459 GIOCONDA HERMAN ........................................................................... 471 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 471 PROCEEDINGS AT TRIAL - JANUARY 26, 2012 Proceedings ...................................................................................................... 495
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WITNESSES FOR THE ACCUSED GIOCONDA HERMAN ........................................................................... 495 EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: ... 495 CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: ................. 499 RUTH ARTHURS................................................................................... 511 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 511 CROSS-EXAMINATION ON VOIR DIRE BY MS. GUEST: ................... 524 PROCEEDINGS AT TRIAL - FEBRUARY 1, 2012 Proceedings ...................................................................................................... 532 VOLUME 4 PROCEEDINGS AT TRIAL - FEBRUARY 6, 2012 Proceedings ...................................................................................................... 537 WITNESSES FOR THE CROWN HANAN ABRAMOVICI .......................................................................... 539 EXAMINATION IN CHIEF ON VOIR DIRE BY MR. ECCLES: ............... 539 CROSS-EXAMINATION ON VOIR DIRE BY MR. TOUSAW: ................ 556 PROCEEDINGS AT TRIAL - FEBRUARY 7, 2012 Proceedings ...................................................................................................... 619 WITNESSES FOR THE CROWN HANAN ABRAMOVICI .......................................................................... 619 CROSS-EXAM BY MR. TOUSAW ON VOIR DIRE, CONTINUING: ...... 619 VOLUME 5 PROCEEDINGS AT TRIAL - FEBRUARY 8, 2012 Proceedings ...................................................................................................... 717 WITNESSES FOR THE CROWN HANAN ABRAMOVICI .......................................................................... 717 CROSS-EXAM BY MR. TOUSAW ON VOIR DIRE, CONTINUING: ...... 717 RE-EXAMINATION BY MR. ECCLES ON VOIR DIRE: ......................... 738
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PROCEEDINGS AT TRIAL - FEBRUARY 27, 2012 Proceedings ...................................................................................................... 783 PROCEEDINGS AT TRIAL - FEBRUARY 28, 2012 Proceedings ...................................................................................................... 784 PROCEEDINGS AT TRIAL - FEBRUARY 29, 2012 Proceedings ...................................................................................................... 785 PROCEEDINGS AT TRIAL - MARCH 1, 2012 Proceedings ...................................................................................................... 786 PROCEEDINGS AT TRIAL - APRIL 13, 2012 Proceedings ...................................................................................................... 787 PROCEEDINGS AT TRIAL - JANUARY 10, 2013 Proceedings ...................................................................................................... 791
EXHIBITS
EXHIBITS ON VOIR DIRE EXHIBIT 1: Admissions filed January 16, 2012 ............................................. 3 EXHIBIT 1-A: Amended Admissions filed January 17, 2012 ........................... 76 EXHIBIT 2: Crown's Book of Photographs ................................................... 14 EXHIBIT 3: Victoria Police Department Exhibit Flow Chart .......................... 17 EXHIBIT 4.1: Original Analyst Report No. 09 14838 V ................................... 30 EXHIBIT 4.2: Original Analyst Report No. 09 14835 V ................................... 30 EXHIBIT 4.3: Original Analyst Report No. 09 14839 V ................................... 30 EXHIBIT 4.4: Original Analyst Report No. 09 14803 V ................................... 30 EXHIBIT 4.5: Original Analyst Report No. 09 14804 V ................................... 30 EXHIBIT 4.6: Original Analyst Report No. 09 14805 V ................................... 30 EXHIBIT 4.7: Original Analyst Report No. 09 14806 V ................................... 30 EXHIBIT 4.8: Original Analyst Report No. 09 14807 V ................................... 30 EXHIBIT 4.9: Original Analyst Report No. 09 14808 V ................................... 30 EXHIBIT 4.10: Original Analyst Report No 09 14809 V .................................... 30
EXHIBIT 4.11: EXHIBIT 4.12: EXHIBIT 4.13: EXHIBIT 4.14: EXHIBIT 4.15: EXHIBIT 4.16: EXHIBIT 4.17: EXHIBIT 4.18: EXHIBIT 4.19: EXHIBIT 4.20: EXHIBIT 4.21: EXHIBIT 4.22: EXHIBIT 4.23: EXHIBIT 4.24: EXHIBIT 4.25: EXHIBIT 4.26: EXHIBIT 4.27: EXHIBIT 4.28: EXHIBIT 4.29: EXHIBIT 4.30: EXHIBIT 4.31: EXHIBIT 4.32: EXHIBIT 4.33: EXHIBIT 4.34: EXHIBIT 4.35: EXHIBIT 4.36: EXHIBIT 4.37: EXHIBIT 4.38: EXHIBIT 4.39: EXHIBIT 4.40: EXHIBIT 4.41: EXHIBIT 5: EXHIBIT 6: EXHIBIT 7: EXHIBIT 8: EXHIBIT 9: EXHIBIT 10:
Original Analyst Report No. 09 14810 V ................................... 31 Original Analyst Report No. 09 14811 V ................................... 31 Original Analyst Report No. 09 14812 V ................................... 31 Original Analyst Report No. 09 14813 V ................................... 31 Original Analyst Report No. 09 14814 V ................................... 31 Original Analyst Report No. 09 14815 V ................................... 31 Original Analyst Report No. 09 14816 V ................................... 31 Original Analyst Report No. 09 14817 V ................................... 31 Original Analyst Report No. 09 14818 V ................................... 31 Original Analyst Report No. 09 14819 V ................................... 31 Original Analyst Report No. 09 14820 V ................................... 31 Original Analyst Report No. 09 14821 V ................................... 31 Original Analyst Report No. 09 14822 V ................................... 31 Original Analyst Report No. 09 14823 V ................................... 31 Original Analyst Report No. 09 14824 V ................................... 31 Original Analyst Report No. 09 14825 V ................................... 31 Original Analyst Report No. 09 14826 V ................................... 32 Original Analyst Report No 09 14827 V .................................... 32 Original Analyst Report No. 09 14828 V ................................... 32 Original Analyst Report No. 09 14829 V ................................... 32 Original Analyst Report No. 09 14830 V ................................... 32 Original Analyst Report No. 09 14831 V ................................... 32 Original Analyst Report No. 09 14832 V ................................... 32 Original Analyst Report No. 09 14833 V ................................... 32 Original Analyst Report No. 09 14834 V ................................... 32 Original Analyst Report No. 09 14836 V ................................... 32 Original Analyst Report No. 09 14837 V ................................... 32 Original Analyst Report No. 09 14840 V ................................... 32 Original Analyst Report No. 09 14841 V ................................... 32 Original Analyst Report No. 09 14842 V ................................... 32 Original Analyst Report No. 09 14843 V ................................... 32 DVD containing scene video images......................................... 34 City of Victoria Proclamation "International Medical Marijuana Day" ........................................................................................ 112 Letter from Office of the Mayor of Victoria, B.C. to Tony Clement dated March 20, 2006 ............................................... 116 Letter to Leon Smith from Susan Fletcher, July 27, 2005 ....... 117 Letter from Leon "Ted" Smith to Susan Fletcher dated January 4, 2006 ...................................................................... 119 Letter to Ujjal Dosanjh from Leon "Ted" Smith dated February 3, 2005 ..................................................................... 121
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EXHIBIT 11: EXHIBIT 12: EXHIBIT 13: EXHIBIT 14: EXHIBIT 15: EXHIBIT 16:
EXHIBIT 17: EXHIBIT 18: EXHIBIT 19: EXHIBIT 20: EXHIBIT 21: EXHIBIT 22: EXHIBIT 23: EXHIBIT 24: EXHIBIT 25: EXHIBIT 26: EXHIBIT 27: EXHIBIT 28: EXHIBIT 29:
EXHIBIT 30:
EXHIBIT 31: EXHIBIT 32:
Letter to Leon Smith from Beth Pieterson, dated February 24, 2006 ................................................................... 124 Letter to Tony Clement from Leon "Ted" Smith dated August 1, 2006 ........................................................................ 128 Letter to Leon Smith from Susan Russell dated September 26, 2006................................................................ 130 Letter to Tony Clement from Leon "Ted" Smith dated January 3, 2007 ...................................................................... 133 Letter to Leon "Ted" Smith from Ronald Denault dated 2008-06-03.............................................................................. 137 Letter to Tony Clement on International Hempology 101 Society letterhead dated December 4, 2007 (was Exhibit B for identification) ...................................................................... 139 Cannabis Buyers' Club of Canada informational pamphlet ..... 176 Cannabis Buyers' Club of Canada - Medicinal Cannabis Recipe Book............................................................................ 258 Breast imaging report - exam date 18-Apr-2011 ..................... 260 Histopathology Report for Gayle Quin..................................... 261 Prescription sheet from Dr. Roland Graham dated November 28, 1997................................................................. 261 Urine Toxic Metals report of Dr. Peter Nunn dated August 12, 2002 ...................................................................... 262 Letter from Dr. Kristen Bovee dated January 6, 2012 ............. 266 Package of documents including original affidavit of Dr. Pate, curriculum vitae, list of publications and two studies ............... 290 Colour photograph of close-up depicting female flower of cannabis plant ......................................................................... 301 Macro colour photograph of close-up of leaf surface .............. 302 Macro photograph depicting isolated trichomes ...................... 319 1 page photocopy of prescriptions prescribed to Sandra Large ....................................................................................... 455 5-page document from St. Joseph's Health Care entitled, "Regional Evaluation Centre Multidisciplinary Health Care Assessment ............................................................................ 472 Document from St. Joseph's Health Care, Regional Evaluation Centre Multidisciplinary Health Care Assessment - Final.................................................................. 476 Copy of report from St. Joseph's Health Care dated March 28, 2002 ....................................................................... 476 3-page letter dated May 7, 2004 addressed to Dr. Patricia Morley-Forster ......................................................................... 478
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EXHIBIT 33: EXHIBIT 34: EXHIBIT 35: EXHIBIT 36: EXHIBIT 37: EXHIBIT 38: EXHIBIT 39: EXHIBIT 40: EXHIBIT 41:
EXHIBIT 42: EXHIBIT 43: EXHIBIT 44:
1-page copy of document from London Health Services dated July 22, 2004 ................................................................. 484 1-page document from Vancouver Island Health Authority dated May 6, 2009 .................................................................. 485 3-page copy of fax dated May 11, 2005 from Dr. Laurence Jerome Re: Gina Herman ....................................................... 487 1-page document of Prescription Authorization Request printed on January 20, 2012 re Herman, Gioconda ................ 488 4-page copy of document entitled Form B1 ............................ 493 Copy of letter from Dr. Grimwood to Mr. Brooks re Ruth Ann Arthurs dated April 15, 2010 ................................................... 515 1-page copy of assessment form for Life Mark Physiotherapy re Ruth Arthurs dated March 17, 2010 ............ 517 Affidavit of Hanan Abramovici ................................................ 556 "Multicenter, double-blind, randomized, placebo-controlled, parallel-group study of the efficacy, safety, and tolerability of THC:CBD extract and THC extract in patients with intractable cancer-related pain" ................................................................ 721 "Adverse effects of medicinal cannabinoids: a systematic review" .................................................................................... 726 Large cerlox bound volume, affidavit of Eric Ormsby .............. 755 Curriculum vitae of Eric Ormsby ............................................. 765
EXHIBITS FOR IDENTIFICATION ON VOIR DIRE EXHIBIT A: Cannabis Buyers' Club of Canada, Product Guide ................. 102 EXHIBIT B: Letter to Tony Clement on International Hempology 101 Society letterhead dated December 4, 2007 ........................... 136 EXHIBIT C: Binder of Health Canada MMAR information .......................... 194 EXHIBIT D: Affidavit of Dr. Harold Kalant sworn April 3, 2008 ................... 412
RULINGS
Plea ...................................................................................................................... 2 Ruling re re Ban on Publication .......................................................................... 10 Order re Exclusion of Witnesses......................................................................... 11 Ruling re admissibility of document .................................................................. 100 Ruling re admissibility of document .................................................................. 115 Ruling re admissibility of document .................................................................. 119 Ruling re admissibility of question on re-examination ....................................... 214 Ruling re Qualification of Witness re Pate ........................................................ 291
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[RULING RE ADJOURNMENT APPLICATION] ............................................... 533 Ruling re Qualification of Witness re Abramovici .............................................. 538 Ruling on Voir Dire ............................................................................................ 787 Ruling on Voir Dire ............................................................................................ 788 Re-Election ....................................................................................................... 791 Plea .................................................................................................................. 794 Reasons for Judgment re Acquittal ................................................................... 795
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Victoria, B.C. January 16, 2012 THE CLERK: Monday, January the 16th, 2012, in the Supreme Court of British Columbia. Calling the matter of Her Majesty the Queen against Owen Edward Smith, My Lord. MR. ECCLES: May it please the court, Peter Eccles, E-c-c-l-e-s. I appear for the Federal Crown on this matter. MS. GUEST: Christina Guest, G-u-e-s-t, also appearing on behalf of the Federal Crown. MR. TOUSAW: My Lord, my name is Kirk Tousaw, T-o-u-s-a-w. I appear for Mr. Smith. Mr. Smith is present in the courtroom. He's seated next to the sheriff in the back. I'd ask Your Honour's leave to have him sit at counsel table with me. THE COURT: Why? MR. TOUSAW: Just so he can take notes and pass them to me if necessary. THE COURT: He can make notes from where he is. I don't think we need an accused at counsel table. MR. TOUSAW: Thank you, My Lord. My Lord, this is Mr. Smith's -- Mr. Smith is charged with possession for the purpose of trafficking THC, tetrahydrocannabinol, and simple possession of cannabis. My friend and I have worked, as My Lord's aware, on some admissions that we discussed at the pre-trial on this matter. I have just signed a copy, and my friend I believe is going to hand them up. THE COURT: Perhaps we should get it started with a plea. Madam Registrar, could you take a plea from Mr. Smith, please? Mr. Smith, would you stand up, please? THE CLERK: Court File 149345-2. IN THE SUPREME COURT OF BRITISH COLUMBIA CANADA PROVINCE [sic] OF Victoria. HER MAJESTY THE QUEEN AGAINST OWEN EDWARD SMITH. Owen Edward SMITH stands charged that:
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...on or about the 3rd day of December, 2009, at or near the City of Victoria, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Tetrahydrocannabinol, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, AND AGAINST THE PEACE OF OUR LADY THE QUEEN, HER CROWN AND DIGNITY. THE THE THE THE And how do you plead? ACCUSED: Not guilty, Your Honour. CLERK: Not guilty, My Lord. COURT: All right. Thank you. CLERK: Owen Edward SMITH stands charged that: ...on or about the 3rd day of December, 2009, at or near Victoria, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cannabis (marihuana), contrary to s. 4(1) of the Controlled Drugs and Substances Act, AND AGAINST THE PEACE OF OUR LADY THE QUEEN, HER CROWN AND HER DIGNITY. THE THE THE MR. And how do you plead? ACCUSED: Not guilty, Your Honour. CLERK: Not guilty, My Lord. COURT: Thank you. You may sit down, Mr. Smith. TOUSAW: Thank you, My Lord. My friend and I have prepared some admissions. Essentially Mr. Smith is admitting the existence of the exhibits, the continuity of the exhibits, the elements of the offences charged. We'll be asking Your Lordship to declare a voir dire for purposes of testing the -- testing the law, both vis--vis the Charter, as well as making an application for a judicial stay of proceedings. My friend and I have discussed at some length the proposed order, and if Your Lordship wishes I can perhaps give you a synopsis of how we, at least, think the matter is going to proceed.
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THE COURT: Yes, please. MR. TOUSAW: I'm going to commence with the filing of the admissions that establish I think the elements of the offence and certain other basic facts. And my friend I think has a copy that we'll hand up. It's been adjusted this morning. We can file a cleaner copy later today if necessary. THE COURT: All right. MR. ECCLES: Yes, My Lord. The revisions are -- what's being handed up was a draft admission. I've crossed out "draft" and I've crossed out a couple of areas where we were not able to finalize admissions. What I -- my friend and I propose is I have a -- some materials coming over from Vancouver, where I'm based, which is also where my computer with that document on it is. I can contact my office and have the document tidied up, so to speak, and then it will be sent over with the balance of the materials that should arrive tomorrow, subject to the weather in Vancouver and the difficulty in getting anything onto a plane -THE COURT: All right. MR. ECCLES: -- when the plane isn't flying. THE COURT: We'll mark this as Exhibit 1. MR. TOUSAW: Thank you, My Lord. THE COURT: Madam Clerk, would you staple it together, and mark it as an exhibit. EXHIBIT 1 (on voir dire #1): filed January 16, 2012 Admissions
MR. TOUSAW: I understand that my friend will then call the exhibit officer who attended the scene to give essentially an overview of what was found. He has a book of photographs. It may be that my friend will also call an expert in the area of possession for the purpose of trafficking, who I understand is on the way, to talk about valuation of the materials, though there is an open issue that my friend and I continue to discuss that may dispense with the need for that particular witness, at which point I would propose to begin to call the defence case on the applications. And the -- the order that I would propose to Your Lordship is that I call Mr. Ted Smith, no relation to the accused. Mr. Ted Smith is the
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proprietor of an organization called the Cannabis Buyers' Club of Canada that this particular apartment was a bakery for, was making edible and topical cannabis-based medicines. Mr. Smith's evidence would essentially go to the history of that organization, its membership, its role, what it does, the accused's role in the organization, the development of the bakery concept. And in discussions with my friend, we anticipate that Mr. Smith is like -- Mr. Ted Smith is likely to be on the stand today and the balance of tomorrow, giving that evidence. Subsequent to that I have a number of witnesses that I'll simply refer to colloquially as the patient witnesses, members of the Cannabis Buyers' Club of Canada. There's going to be four or five of those witnesses, essentially to testify to their experience with the organization, their use of the products, their medical conditions, the benefits that they derive from the use of cannabis-based medicines. It's our anticipation that that will take us through the remainder of this week, and we have scheduled for Monday of next week the testimony of Dr. David Pate, the defence expert. That's P-a-t-e. He is an expert in pharmaceutical science, and with a particular emphasis on cannabis-based medicines. My own view is, subject to my friend's need to cross-examine and what he gets into, that Dr. Pate's likely to be on the stand Monday and Tuesday of next week. My own suggestion would be that -- that the Wednesday of next week be a day for any additional witnesses that we perhaps haven't gotten to before Dr. Pate takes the stand. I wanted to, because of his scheduling, and he's coming from out of town, give him a date certain to appear. At that point the defence case will -- at least the evidence on the defence case will essentially be complete, and then it will be up to my friend to put the Crown's case in, and I don't want to speak for him as to what that may or may not be. There is a possibility that certain portions of that case will be admitted, medical testimony from a Dr. Kalant, who testified in a prior case similar to this one, and testimony from
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a Health Canada representative. I'll leave it to my friend to speak to that. MR. ECCLES: Yes, My Lord. I have received Dr. Pate's CV about two weeks ago, and his report roughly one week ago. I've had an opportunity to review it. Subject to what he says viva voce, I -- my friend's time estimate appears to be realistic. I'm in the process of making inquiries in Ottawa as to whom they can provide if the Crown feels the need for additional evidence in reply to Dr. Pate. I have yet to hear back as to precisely who that will be. The last week's been a bit hectic for the Crown. The witness who the Crown will be calling on the voir dire -- it's an odd situation. The witness is here to assist the court and essentially my friend, given that all the elements of the offence have been admitted. I don't anticipate his evidence -- it's a Constable Brewster of the Victoria Police Department. His evidence shouldn't take much more than an hour. Your Lordship may have noticed we have a television. I don't anticipate using it this morning, because we're having some difficulties with the lovely laptop the PPSC provides me. It doesn't seem to be compatible with the screen. But I don't think much will turn on that. I don't know a great deal about what my friend's evidence will be, and I'll have to see as we go. We're in the midst of discussing the possibility of simply admitting Dr. Kalant's report from the Beren and Swallow case. I also have transcripts in electronic format of all the evidence Dr. Pate gave in direct and cross-examination. Dr. Kalant, sorry. We have transcripts of his evidence, and subject to what my friend may -- instructions he receives, we're hoping by the end of today or tomorrow we'll have firmed up how that will be admitted, if it is to be admitted. I also have materials from Health Canada that relate to the Marihuana Medical Access Regulations, and those in -- the numbers of people who have signed up, and the like. I don't know whether my friend wants a witness, or the witness who's provided the affidavit that was filed in a proceeding in Ontario to attend. I need to
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finalize that for my friend, because that witness is not available. That witness is no longer employed by Health Canada and can't access the computers to double check data. So we may have to find someone else to, in essence, reinvent the wheel. We're hoping to sort that out. It's basically tombstone data, how many people have obtained licenses each year over the last ten years is essentially the information. It's also available on the website. I'm cautiously optimistic we won't need to have viva voce evidence to tender, in essence, I looked at a computer screen that records information relating to the medical program run by the federal government and the number of people. It's an accurate computer. Here are the numbers. It is a business record, so I'm hoping we can sort that out. If we're able to resolve that, I am anticipating the Crown may call one live witness in rebuttal, after I've heard my friend, possibly to -- I am going to do everything I can to ensure Your Lordship and my friend don't come to court next week to see a battery of five or six experts sitting in the back of a room waiting to take the stand. We have a very narrow issue, as I understand it, at the end of the day in this case, and it may well be that the Crown will only need one witness, so we'll only have one witness in reply on that narrow issue. If the issues broaden as we go, then the Crown will take it as we go. I'm hoping we will be confining the issue. As I understand it from reading Dr. Pate's report the central issue raised by the defence is that the Marihuana Medical Access Regulations are deficient, constitutionally invalid, because while they do allow patients with a legitimate and medically certified need to use marihuana to treat their conditions, they do not contemplate or allow the patient to be in possession of a derivative substance, tinctures, oils, baked products, and resinated products such as hashish, as it's traditionally called. If that is the only issue we have, then the Crown anticipates only one witness in reply, someone who will come from Health Canada and hopefully assist the court in explaining why the
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THE
MR. THE MR. MR.
regulations are structured as they are. That is the central issue in the matter. I don't believe there's any factual issues about the actual offence itself, but Constable Brewster is here to describe what the police found and what was seized. He has a book of photographs. There is a video on a CD Rom, which unfortunately we as yet cannot play, but the officer has reviewed the video to prepare for his evidence. It has an audio track, and I expect his evidence will be that it's a three -- roughly three-minute video with an audio track, as the camera pans, the officer describing what he sees. I'm in my friend's and the court's hands as to whether the officer can enter the disk without actually playing it, and then if we can -- I suspect it will just play on a laptop, but for some reason my laptop won't sync with the TV. We're hoping to sort that out over the break. Subject to any comments from Your Lordship, what I propose is to simply call Constable Brewster, he'll describe the scene, and in conjunction with the exhibits, that will set the framework for my friend's constitutional issue. COURT: All right. I should mention for the information of counsel, it may be that you lose two hours on Wednesday. That is, you may not have me for Wednesday afternoon. That is not certain, but there is another matter that is arising that I am required to deal with, or I may be required to deal with Wednesday afternoon. So that may affect your plan. TOUSAW: Mm-hmm. COURT: All right. Let's get started. TOUSAW: Thank you, My Lord. ECCLES: Certainly. On that -- oh, I don't know whether my friend will be asking for a ban on publication in these proceedings. This is a voir dire, and this is a jury matter, eventually, potentially. So in the Crown's -- I believe there is, pursuant to the provisions of the Code, because this came up in another matter relating to a funding application, when there is a jury in the offing, a jury trial is the selected mode, it's my understanding from the provisions of the Code that a ban on publication is automatic, that there is to be no publication of proceedings prior to the
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empanelling of the jury, if a jury is in the offing. But out of an abundance of caution, the Crown would -- the Crown would ask Your Lordship to declare a ban on publication of the proceedings, just so there's no -COURT: Just in case the Criminal Code doesn't say that a ban is -ECCLES: Automatic. COURT: -- mandatory? ECCLES: Yes, My Lord. Just, it came up tangentially in relation to a funding application under 462.34 of the Code. COURT: What's the section? ECCLES: That's the problem, My Lord. I can't remember it off the top of my head. It's -CLERK: I'm sorry, but we do require the section for -- in order for the computer to put the ban, so it -COURT: The clerk needs to know what section -ECCLES: Certainly. COURT: -- either I exercise a discretion under, or that makes a ban on publication automatic or mandatory. TOUSAW: My Lord, while my friend's looking that section up, I can say from the accused's perspective, if the ban is mandatory, it's mandatory; if the ban is discretionary, we would oppose the imposition of a ban. ECCLES: I believe it's s. 648, relates to a ban on publication when the jury is not present. No, that is after separation of the jury. COURT: We're not there yet. ECCLES: No, we're not, My Lord. 648.1: After permission to separate is given to members of a jury under subsection ..., no information regarding any portion of the trial at which the jury is not present shall be published [before the jury retires to] in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
THE COURT: But that presumably is after the jury has heard the evidence and has been instructed by the court under s. 647. I don't think 648 deals with a voir dire.
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MR. ECCLES: I think it's probably a reach to suggest it's automatic, so it would appear to be discretionary. Although the 542 ... that's confession or admission. I'm sorry, My Lord, it's just not I'm used to ... THE COURT: Relating to admissions or confessions. MR. ECCLES: Yes, My Lord. THE COURT: Which is fairly -MR. ECCLES: Although there are admissions before the court, that's for sure. But that doesn't seem to cover the hearing of the evidence. The solution may be a partial ban, given the admissions that are before Your Lordship on a potential jury -- in essence, the admissions are Mr. Smith admits all elements of the offence. That is a matter that should this matter go to a jury may be something that is inappropriate for them to hear or be made aware of. The balance of the evidence, I anticipate the evidence of Mr. Ted Smith, the patients, and Dr. Pate, does not appear to run afoul. But again, I haven't heard Mr. Smith's evidence. I anticipate his evidence will be that Owen Edward Smith, no relation, was employed by Ted Smith to operate a bakery to produce cannabis-infused products that, on being sold, constitute trafficking within the provisions of the Controlled Drugs and Substances Act. That may well be an admission in direct, but it's called by the defence, and a witness for the defence is admitting all elements of the offence. MR. TOUSAW: Yes, My Lord. It strikes me that that -- the purpose for banning publication would be to prevent prejudice to the defence for making those admissions. My client's perspective is that at some point if we empanel a jury, he's going to admit engaging in the conduct and is not going to prejudiced by any pre-trial publicity. I should also say, this case has already enjoyed a fairly high level of publicity, and there's a tremendous public interest in it. THE COURT: So, Mr. Tousaw, if I understand it, that in spite of the fact that Exhibit 1, the admissions, purport to be admissions for the purpose of the pre-trial motions only -MR. TOUSAW: Yes. THE COURT: -- your client, through you, is taking the
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position that he does not object to Exhibit 1 being published or broadcast in any way, either directly or by reference through reporting these proceedings, and that indeed should the matter get that far he'll likely tender much the same admissions at trial? TOUSAW: That's correct, My Lord. Essentially the issue that Mr. Smith would be seeking to submit to the jury is a common law defence of medical necessity. COURT: All right. Anything further from Crown? ECCLES: No, My Lord. COURT: The Crown has suggested that there be at least consideration of an order banning publication of the evidence, and presumably argument given on this voir dire. This is a voir dire, trial within a trial, to inquire into the enforceability of certain provisions of the Controlled Drugs and Substances Act, the Marihuana Medical Access Regulations. Although all of the issues are not perfectly fleshed out, that is my understanding to this point. The accused not only does not seek an order banning publication of the evidence and argument in these proceedings, but goes further and resists the order banning publication of evidence and argument in these proceedings. I have not been shown anything that persuades me that a ban on publication is mandatory. I think I then fall back on the presumption that all proceedings in a court ought to be open to everyone. That presumption, I think, can only be displaced on very good reasons. Given the position of the accused and my own view that the admissions made, if they are likely to be repeated at a trial, will do no appreciable harm to Mr. Smith in his defence and do no violence to the interests of justice, there will be no ban on publication of the evidence and argument in this voir dire proceeding. ECCLES: Thank you, My Lord. And on that -TOUSAW: Thank you, My Lord. ECCLES: -- note, the Crown calls Constable Brewster. He should be just out in the hall. Oh, no, there he is. Thank you. TOUSAW: One -- sorry, My Lord, just one preliminary matter. There are -- I didn't hear
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anything from my friend in terms of recusing other witnesses that may testify on the voir dire, but I did want to raise it so we don't run into any issues. There are -- Mr. Smith's in the courtroom, Ms. Quin. There are other witnesses that I anticipate calling on the voir dire. I don't know that it's contentious or troublesome that they hear the exhibit officer, or really any of the other evidence, but I wanted to raise that in case it is something that my friend wishes to consider. ECCLES: With respect to the evidence of the officer, the Crown is not concerned, My Lord. With respect to having the balance of the defence witnesses in the room as each testifies, the Crown is concerned. We would prefer that witnesses giving evidence in these proceedings not be present to hear each other, given the nature of the issues the Crown anticipates arising. COURT: The fact that the Crown is concerned or has a preference in the matter doesn't go so far, yet, as to tell me that the Crown is seeking an order that witnesses are banned until they have testified. Are you seeking such an order? ECCLES: Yes, My Lord, I am. I'm asking that witnesses be asked to step out of the room until such time as they come forward to give evidence. I don't anticipate Constable Brewster to be a lengthy witness. COURT: All right. Mr. Tousaw, any position on that? TOUSAW: I think it's appropriate to have them recused. COURT: And the witnesses all know who they are, I take it? TOUSAW: They do. COURT: All right. Anyone who is expected to give evidence in these proceedings should step outside and remain outside until their evidence has been heard. Once your evidence has been heard, you are of course free to remain and hear the balance of the evidence, but until you have testified, please do not enter the room. The effect of that is -- or the purpose of that is so that your evidence cannot be accused of having been tainted by any evidence you have already heard. The order having been sought is granted, and
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in fact sensibly so, it seems to me, so that there can't be any argument that your evidence is tainted and your credibility therefore affected. All right. TOUSAW: Just for purposes of clarity, they can stay during the exhibit officer's testimony, however? COURT: Is there any objection to that? ECCLES: No, My Lord. COURT: All right. You can stay for this witness's evidence. Nobody wanted you to be excused for this. TOUSAW: Thank you, My Lord. ECCLES: Can the witness be affirmed, please? COLIN BREWSTER a witness called for the Crown, affirmed.
THE CLERK: Would you state your full name, please? A Constable Colin Brewster, B-r-e-w-s-t-e-r. THE COURT: You may be seated, if you wish, Constable. A Thank you, My Lord. EXAMINATION IN CHIEF ON VOIR DIRE BY MR. ECCLES: Q A Q A Q Constable, you're currently employed by the Victoria Police Department, is that correct? Yes, My Lord. How long have you been so employed? I will have been employed three months shy of three years coming up in March. Now, I understand that on the 3rd day of December, in 2009, you were asked to assist in executing a search here in the City of Victoria at a small bachelor apartment, correct? Yes, that's correct, My Lord. Could you tell us about that, please? Yeah, absolutely. On December 3rd, 2009 I was requested to attend at 865 Yew Street, the Chelsea apartment buildings, Suite 204, to assist in providing security and continuity to Suite 204 while it was being -- a warrant was being applied for. I arrived on scene, relieving Constables Bayles [phonetic] and Stewart, who were holding continuity of the suite prior to that, and we
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13 VOIR DIRE Colin Brewster (for Crown) in chief on voir dire by Mr. Eccles
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remained outside the front door of the suite ensuring that no one entered the suite until the warrant had been granted. Constables Sark and Gill arrived on scene with the approved copy of the warrant, at which point we entered the suite, which was video taped and photographed by myself. Q What was your role in the search? What were you to do? A My Lord, my role was the -- acting as Exhibit officer. So not only did I video tape entry into the suite, I also photographed the suite prior to it being searched, as well as located and seized the items found within the suite. Q Starting with the process of photographing, when are the photographs taken, before, during, or after the search is complete? A The photographs were taken prior to the search being done, My Lord. Q And you mentioned you have a book of photographs. It's a book prepared by our offices and provided to you, correct? A Yes, that's correct, My Lord. Q And you had the opportunity this morning before coming to court to review the book of photographs and confirm the photographs in the book are indeed those that you took on the day in question, correct? A Yes, that's correct, My Lord. Q You were using a digital camera? A Yes, that's correct, My Lord. Q So there's no negative and print; this is a digital process where the image is reproduced, varying sizes, depending on what size you tell the computer to create, correct? A Yes, that's correct, My Lord. Q And you've created photographs that fit in a book on 8 by 11 pages, correct? A Yes, that's correct, My Lord. Q And the book you have, the photographs are numbered primarily in the upper right corner, correct? A Yes, that's correct, My Lord. MR. ECCLES: My Lord, I have a copy for Your Lordship, and I have provided my friend with a copy. THE COURT: Any objection to these being marked as an exhibit?
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MR. TOUSAW: No, My Lord. THE COURT: Exhibit 2, then, will be the booklet of photographs. MR. ECCLES: Q And the off -- you -- that's the book you reviewed this morning, correct, Constable? A Yes, that's correct, My Lord. MR. ECCLES: Perhaps we could mark the constable's copy, and then Your Lordship will have a spare for whatever purpose. EXHIBIT 2 (on voir dire #1): Photographs Crown's Book of
MR. ECCLES: Q Now, Constable, you've described taking the photographs. The book of photographs, I'll just take you through them. There's 42 in the book, correct? A Yes, that's correct, My Lord. Q Not -- couple of duplicates in there as well, correct? A Yes, that's correct, My Lord. Q Now, if you open the photographs, let's start with -- let's just start with photogra -- well, first of all, before we get to the photos, I haven't asked you this, can you describe the apartment? As you enter and move through the apartment, what do you see? A My Lord, as -- as we entered into the apartment, the apartment is approximately about 400 square feet. It's a bachelor style apartment. As you enter into the front door you have a very narrow hallway with a small closet on your right-hand side, as well as a single bathroom on your left-hand side. I observed inside the closet upon entry there was a vacuum, as well as a broom and dozens of empty egg cartons stacked along each other. There was nothing really of note inside the bathroom. As you continue on into the apartment you have a small living area, with -- which connects into a -- a kitchen. The living area was extremely cluttered. There was numerous boxes stacked on top of each other. I didn't observe any bed, bed sheets, or sofa within the actual living area of the
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apartment. As I said before, there was numerous stacked boxes on top of each other in the corner of the apartment, as well as several small wooden book cases and a small table located in the middle of the living area. The -- the bachelor style apartment had a single patio. On the patio we located a -- a baker style cooling rack, covered rack. There was no other contents found on the patio. Within the actual living area, as I said before, contained inside the boxes were a lot of miscellaneous baking supplies, numerous board games. Within the actual living area of the apartment on the table we located empty gel capsules, as well as on top of the boxes and on top of the table we also located several batches of baked cookies. Within the kitchen there was miscellaneous baking goods, such as flour, cinnamon, oils, as well as numerous empty peanut butter containers, actually Adams peanut butter containers, glass jars that had been washed and were drying on a dish rack. And inside the fridge -- it's a single oven within the actual kitchen. Inside the fridge we located over a dozen jars, peanut butter jars, full of oily substance. Now, Constable, turning to the book of photographs, just take us through and tell us what we're looking at in each photograph, starting with the photograph in the upper right corner is number 1. My Lord, in Photograph Number 1, it's a -- a metal baker's container with a -- with a dough or a substance inside. That container was located on the -- on the table in the middle of the living area of the apartment. And Photograph Number 2? My Lord, Photograph Number 2 shows the closet as you walk into the apartment. That's on your right-hand side as you enter. As I described, you can see the -- the broom handle, as well as the handle to the vacuum, and as I described, the stack -- stacks of empty egg cartons stacked on top of each other. And Photograph Number 3? My Lord, Photograph Number 3 was taken in the
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bathroom as you enter the apartment on your left-hand side. This photograph depicts a note left on the light switch and fan switch of the bathroom. And in the note it reads, "Please don't use the fan while baking," and, "And remember to turn it off." And then in the bottom centre of the page, Photograph Number 4? My Lor -- My Lord, excuse me, Photograph Number 4 is Item Number 12. It's an oily substance contained in an Adams peanut butter jar. This was located on the countertop of the kitchen. What's the significance of the number 12? My Lord, number 12 was the 12th item seized by us inside the apartment. And pause there for a moment. How do you record what's seized when you're the exhibit officer on scene? My Lord, how we record what's seized is we conduct a systematic search of the apartment. For each item seized, we record the time it was seized at, where it was located, and -- and describe -- a description of what was -- what was seized. Is there a standard form document that you use as a searching officer at a location such as this to record this information? There is, My Lord. We -- we use what's called an exhibit flow chart. And do you have a copy of that document with you today? I do, My Lord. Could you produce it, please? Would you have additional copies for His Lordship and myself? I do, yes. Could you produce the original and the copies, please? Yes, My Lord. My Lord, the flow chart I'm producing now is the original copy. ECCLES: I understand there's no issue with the flow chart, My Lord. It's referenced in the exhibit -- in Exhibit 1, as I recall, but it's not attached to Exhibit 1 because of the different size of the paper. COURT: Are you tendering it as an exhibit? ECCLES: I am tendering it as a stand alone exhibit, so it will be Exhibit 3 in this case. COURT: Mr. Tousaw?
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MR. TOUSAW: No objection. THE COURT: Exhibit 3. That's your original there. EXHIBIT 3 (on voir dire #1): Victoria Police Department Exhibit Flow Chart MR. ECCLES: Q And if you could hand me the copies you've made, Constable? A Yeah. My Lord, there's four copies of the exhibit flow chart there. MR. ECCLES: I've provided a copy to my friend, and I have a copy for Your Lordship. THE COURT: Thank you. MR. ECCLES: Q Now, Constable, the flow chart is prepared -- it's a standard document which has on it a column for the exhibit number, a column for a description of the exhibit, where and when seized, and underneath that in handwriting there's a small note. I'll provide you with copy while -A Thank you. MR. ECCLES: -- Madam Clerk prepares the exhibit stamp. Do you have the flow chart? Yes, Exhibit 3. Provide the exhibit to the officer, please. Thank you. Q Now, handwritten in is, "December 4th, 2009." Why December 4th? A My Lord, when we arrived on scene to the apartment it was prior to midnight, so it was December 3rd when we attended the scene. However, when we began our search of the apartment it was past midnight; therefore it was December 4th. Q And then it says, "Where and when seized." It has a notation, for example, "Exhibit Number 1, seven brown cookies, living room, 027, by whom, PC 413." That's your badge number, correct? A That's correct, My Lord. Q And then it's turned over, "Locker number 40 P and S." That's the locker where the exhibits are secured for later processing, is that -A That's correct, My Lord. MR. ECCLES: And for the purposes of the voir dire, My Lord, I understand continuity is not an issue on any exhibit that's been admitted. MR. TOUSAW: That's correct, My Lord. THE COURT: All right. Thank you.
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MR. ECCLES: Q Now, on this flow chart at Item Number 12 you have described, "Description of exhibit, extra-strong liquid jar, kitchen counter, 144," seized by you. So Photograph Number 4, Number 12 is the item that's Number 12 on the flow chart, correct? A That's correct, My Lord. Q And if we look to Photograph Number 5 on -- in the book of photographs, what are we -- what did you take a picture of there, just so we're clear? Photo 5 is the next page. It's in the upper right-hand corner of the photograph. A My Lord, Photograph Number 5 is a picture of a batch of cookies found within the apartment. They were found in the living room of the apartment on a wooden baking rack. Q And the tab there is a Number 11, is that correct? A Yes, My Lord. Q And that corresponds to exhibit flow chart Number 11, "Cookies, 21, living room, 137," seized by you, correct? A That's correct, My Lord. Q And then Photograph Number 6? A Photograph Number 6, My Lord, is another batch of cookies found on the wooden rack within the living room of the apartment. The number below the cookies indicates that it was the tenth item seized on the exhibit flow chart. Q And then Photograph Number 7? A Photograph Number 7, My Lord, is another batch of cookies found within the living area of the apartment. Again, they were found on a baking sheet, on top of the wooden rack within the living area. The number 9 located on the bottom of the photo indicates that it was the ninth item seized on the exhibit flow chart. Q And then Photograph Number 8, with the tab number 8 that appears on the photo? A Photograph Number 8, My Lord, is again another batch of cookies found within the living area of the apartment. Again, the cookies were located on a baking sheet, and the number 8 in the photograph indicates that it was the eighth item seized on the exhibit flow chart. Q And then Photograph Number 7? Sorry, Photograph Number 9, Item Number 7. A My Lord, Photograph Number 9 shows, depicts,
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sandwich bags found on a wooden shelving unit in the living area of the apartment. As you can see in the photo, there's approximately a dozen sandwich bags. They were located on a shelf within the living area. The number 7 seen in the photo shows that it was the seventh item seized -Now, on the flow --- on the exhibit flow chart. Sorry. On the flow chart, number 7 is three sandwich bags. Do you recall whether you only seized boxes of sandwich bags if they were open, as opposed to closed? I don't recall, My Lord. And Photograph Number 10? Photograph Number 10, My Lord, is -- depicts a liquidy substance found on the table within the living area of the apartment. The liquidy substance is labelled, "Ryanol." It was found on a small table within the living area of the apartment. The number 6 depicted in the photo indicated -- indicates that it's the sixth item seized on the exhibit flow chart. And, Constable, if we go across the exhibit flow chart to the head -- to the, "Turned over," it appears to have been turned over to Police Constable 387, and then there's brackets, "H-2907646." What is the significance of, "H-2907646"? The H-number located there is the H-envelope for which a sample was taken to be sent off for analysis at the lab, My Lord. And if we look at, for example, the items 8, 9, 10, and 11, "Cookies," they have all corresponding H-envelopes when we look over to the "turned over" column, correct? That's correct, My Lord. Samples of the baked goods would have been taken and placed in an H-envelope to be sent for analysis. And in each instance where we have an H -- a brackets, "H" and then a seven -- seven-digit number, that indicates that that particular item, something was a -- a sample was submitted for analysis, correct? That's correct, My Lord. Now, in Photograph Number 10, in the -- as we look at it, where we can read the number 6 in the -- what would be I guess the bottom right
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corner as we look at the photograph, with number 6 top right, or the bottom left, if we look at number 10, in the upper right, there's a syringe, correct? That's correct, My Lord. And it looks like there's no needle attached to the syringe? No, that's correct, My Lord. Do you recall whether that particular item was -- was seized, the syringe itself? I don't recall, My Lord. I'd have to refer to the exhibit flow chart. Now, the next photograph, number 11, what are we looking at there? My Lord, Photograph Number 11 depicts a plastic, almost say a capsule counter or a capsule maker. It was located on the table in the living area of the apartment. As you can see there, the number 5 indicated -- indicates that it was the fifth item found -- or, excuse me, fifth item seized on the exhibit flow chart. And then looking at Photograph Number 12, with the tab number 4 in the photograph? My Lord, Photograph Number 12 depicts some handwritten, what -- what appeared to be baking recipes stacked on top -- on top of each other. They were located within the living area of the apartment. The number 4 indicates that it was the fourth item seized on the exhibit flow chart. And on the flow-chart Item 4 is described as a dozen recipes, correct? That's correct, My Lord. In case I haven't asked you this, but the flow chart, is that your writing? That's not, My Lord. It's that of my partner, Constable McNichol. When Constable McNichol fills out the chart, do you provide the information that he puts in the chart? That's correct, My Lord. So you provide the information that there were a dozen recipes, and that's what's recorded on the chart, correct? Yes, that's correct, My Lord. And Photograph 13 is a duplicate of 12, correct? That's correct, My Lord. And Photograph 14, with the Tab Number 3 on it,
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what are we looking at there? My Lord, Photograph Number 14 depicts empty capsule containers found within a container in the living area of the apartment. The empty capsule containers were found on the table within the living area. The number 3 seen in the photo there depicts that it was the third item seized on the exhibit flow chart. And Photograph Number 14, is that on the same table as the items we see in Photographs 10 and 11? That's correct, My Lord. Now, Photograph 15, with a label on it numbered -- in the photograph with number 2, what are we looking at in Photograph 15? Photograph Number 15 shows a metal baking container with a -- a dough or a doughy substance in there, with a metal spoon contained within the container. The tag Number 2 indicates that it was the second item seized on the exhibit flow chart. And then Photograph Number 16? My Lord, Photograph Number 16 was seven cookies contained on a metal baking tray. That was located in the living area of the apartment, on top of the table. The number 1 located in the photo indicated -- indicates that it was the first item seized on the exhibit flow chart. Photograph Number 17? My Lord, Photograph Number 17 is a liquid substance found on the kitchen counter of the apartment. The label on the -- on the jar reads, "Extra strong." It was a dark substance, and it's contained in a glass Adams peanut butter jar. There's no label adjacent to the jar. Can you, from looking at your flow chart, identify whether there's -- this is a specific item that appears on the flow chart? Yes, My Lord. That would correspond to item number 12. And Photograph Number 18? My Lord, Photograph Number 18 shows the baking supplies, as well as a batch of cookies on a metal tray found within the living area of the apartment. It shows that the baking supplies and the cookies are among the -- the boxes stacked on top of each other found within the -- the living area of the apartment.
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And on the flow chart can you find what -- because there's no tab next to the cookies. Can you find out where on the flow chart those cookies appear? If we count them, there -- if it's of any assistance, there appear to be 42 cookies on the -- on this particular baking tray. Yes, My Lord. That would correspond to Exhibit Flow Chart Number 41, and those are 42 brown cookies found within the living room of the apartment. And turning to Photograph Number 19, what are we looking at on Photograph 19? My Lord, Photograph 19 shows a poster found within the -- the apartment, and what that is is just a poster for a cannabis conven -- convention. Do you recall whether there was any other artwork, pictures, personal items hanging on the walls in the apartment? My Lord, I believe there was one other poster found within the living area of the apartment. However, no other photographs, or very few personal belongings were found within the actual apartment. Now, Photograph Number 20, what are we looking at in Photo 20, and where -- you're taking the photograph, correct? That's correct, My Lord. Where are you standing when you take this photo? My Lord, the photo's taken as I stand just prior to entering the actual living area of the apartment, so I'm just standing at the foot of the narrow entranceway leading into the living area. And this is -- what are we looking at here? My Lord, that's a photograph of almost -- basically the living area and the kitchen, and the curtains lead out to the patio as I described. And in front of the curtains that lead out to the patio there appears to be a wooden table of some sort with, looks like cookie trays on it. Is that correct? Yes, that's correct, My Lord. And are these cookie trays that are shown in other photographs within the book? Yes, that's correct, My Lord. The -- each individual tray of the cookies were photographed within the apartment.
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And in the foreground of Photograph Number 20 there's white cardboard items. What are those? They're sitting on a chair. Yes, My Lord. The -- the white flat items that almost look like paper in the photograph are actually flattened cardboard boxes. There's, you know, probably approximately over a hundred of the boxes, and they're stacked on top of each other, contained within a cardboard banana box. But they're almost bakery style boxes that fold up into a carrying case. Now, Photograph 21, what are we looking at there? My Lord, Photograph Number 21 just shows another photograph of the living area of the apartment. It contains more of the living area as not seen in Photograph 20. It shows -- it depicts the stacks of boxes and clutter that was located near the wall in the living area of the apartment. There appears to be a -- what I call a mover's -- that green item, looks like a mover's push cart thing. What did -- was that there, or was that something that the Victoria Police Department brought to the scene, or do you recall? I -- I don't recall, My Lord. Did you look inside these boxes? I did, My Lord. We were able to look through a majority of the boxes. Inside the boxes we located numerous boxed board games, as well as miscellaneous items such as bakery supplies, flour, sugar, some -- some seed. Did you find any clothes, toiletries, or personal belongings in any of those boxes? Nothing that I noted, My Lord. And if we look at Photograph Number 22 of -- just a notice of a town hall meeting, topic before council, medical marihuana, 7:30 p.m., Victoria City Hall, undated; where was that found? My Lord, in Photograph Number 22, it shows the town hall meeting flyer. That was located on top of one of the boxes within the living area of the apartment, as seen in Photograph Number 21. COURT: Is this an appropriate point for the break? ECCLES: Yes, it is, My Lord. COURT: We'll take 15 minutes. CLERK: Order in court. All rise. (WITNESS STOOD DOWN)
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(PROCEEDINGS ADJOURNED FOR MORNING RECESS) (PROCEEDINGS RECONVENED) THE CLERK: Order in court. COLIN BREWSTER, recalled. EXAM IN CHIEF ON VOIR DIRE BY MR. ECCLES, CONTINUING: Q Now, Constable, returning to the book of photographs, which is Exhibit 2 in the proceedings -- if the constable could be shown Exhibit 2, please? Thank you. Turning to Photograph Number 23 in Exhibit 2, and what are we looking at in Photograph 23? My Lord, Photograph Number 23 depicts a small amount of dried marihuana contained in a small plastic baggie, as well as some cigarette rolling papers and a pair of scissors. They were all contained within the living area of the apartment. Do you recall whether that small quantity of mari -- of believed-to-be marihuana was seized? Yes, it was, My Lord. And did it ultimately analyze to be indeed marihuana? I believe it did, My Lord. And if we look on your flow chart, Item 47 of the flow chart is described as, "Marj. small bag, living room." Is Item 47 on the flow chart what we're looking at in Photograph 23? Yes, it is, My Lord. Turning over the page to Photograph 24, what are we looking at in Photo 24? My Lord, Photograph Number 24 depicts the table located in the middle of the living area of the apartment. This is just an overview of the table in its entirety. It shows the capsule counter, as well as the syringe located near the middle of the table, as well as a quarter full jar, or three quarter empty jar of substance, a bag of bulk chocolate chip cookies located near the top of the table, as well -Sorry, cookies or chocolate chips? Excuse me, chocolate chips. As well as the container containing the empty capsules, the seven cookies located on the baking sheet, as well as
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the baking bowl underneath the baking sheet. And in the background of the photograph is a wooden rack with three -- appears to be three trays on it. Is that -- the earlier photograph taken from further back in the room showing a broad view of the room, there was what looked like a wood table next to the drapes. Is that the same table? Yes, it is, My Lord. And Photograph Number 25, what are we looking at in Photo 25? My Lord, Photograph Number 25 shows the kitchen counter of the apartment building -- or, excuse me, the suite. It's just a snapshot of the countertop of the kitchen, which shows numerous empty and partially full glass containers, as well as some baking supplies and a metal container. And then Photograph Number 26? My Lord, Photograph Number 26 shows the wooden rack located near the curtains and the entranceway to the patio, as described earlier. It's a -- there's four cookie sheets or four trays of cookies contained on the wooden rack within the living area of the apartment. Were all of these cookies seized and sent for analysis? Yes, they were, My Lord. And if we look at the flow chart, items 41, 42, 43, and 44 appear to be four trays of cookies located in the living room by you. Are those the -- as best you can recall, the four -- the trays of cookies we're looking at in this photo? Yes, that's correct, My Lord. And on your flow chart you have an H seven-digit number for each of those items, correct? That's correct, My Lord. And that corresponds to the H-envelope into which a sample of the seized cookies was placed for analysis, correct? That's correct, My Lord. And Photograph Number 27, what are we looking at there? Photograph Number 27 depicts a table found in the living area of the apartment. The table is located in and around the boxes contained in the actually living area. The table has on it a paper cutter, as well as the dried marihuana and the
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rolling papers as shown in the previous photo. Also in this photo are six empty glass jars, a package of cigarette -- cigarettes, excuse me, and you can see in the background two trays of cookies. The dried marihuana that we see in the foreground of Photograph 27 towards the bottom of the photograph, that was the only dried marihuana seized from the apartment, is that correct? That's correct, My Lord. And it was .0 -- .8, 8/10ths of a gram is what it weighed out at, is that right? Yes, that's correct, My Lord. Photograph Number 28, is that just a different angle of the same scene showing the six glass jars, the package of cigarettes, the scissors, the dried marihuana, the rolling papers, the flyer, the cookies, and now we can see some keys on the table, correct? Yeah, that's correct, My Lord. It's just taken from a different angle by myself. And then Photograph Number 29, is that the -- one of the trays of cookies we can see in the background of -- in the upper -- or in the lower right corner of Photo 28, if the number 28's in the upper right corner of the photograph, we see some cookies, and is Photograph 29 just a better lit shot of the same cookies? That's correct, My Lord. And then Photograph Number 30? My Lord, Photograph Number 30 is another batch of cookies located on a metal baking sheet. My Lord, this batch of cookies can be seen in Photograph Number 27 at the very back. This is just a better lit shot, given the closer angle of it. And there's, just from my doing a quick count, seven rows of six cookies, 42 cookies on the tray, correct? Yes, My Lord. And then Photograph Number 31, that's another tray of cookies, better lit? Yeah, My Lord. This photograph shows another batch of cookies located on a metal baking tray. These were located on top of the stacked boxes within the living area of the apartment. And Photograph Number 32? My Lord, Photograph Number 32 shows a blender, as
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well as a telephone and a -- I believe what looks like a grinder, and some sandwich bags, as well as flour and salt, and it appears that some incense is located in between the cardboard box and the grinder. This was located in the living area of the apartment. As you proceed into the living area it would be on your immediate left-hand side, just on top of a wooden -- wooden desk style table. And then Photograph Number 33, is that just a close-up of the table we saw earlier with the pill machine, or whatever it is, the three -- three quarter empty or one quarter full jar of oily substance, the capsules, and the chocolate chips? Yes, My Lord. That's just a closer up angle providing more light. And Photograph Number 34, what are we looking at there? My Lord, Photograph Number 34 is another photograph of the kitchen countertop, showing some empty glass containers. You can see some, what appears to be flour on the countertop, as well as a half full bottle of dark liquid substance. And then Photograph Number 35? My Lord, Photograph Number 35 is a photograph of the fridge within the kitchen. This photograph shows the numerous jars of liquidy substance found within the fridge. And Photograph Number 36 is another photograph of the sandwich bags that we've previously heard you describe? Yes, My Lord. It's a duplicate, another photograph of the sandwich bags found within the living area of the apartment. And Photograph Number 37, what are we looking at there? My Lord, Photograph Number 37 is a closer shot of the flattened bakery boxes as I had described and photographed earlier on. And Photograph Number 38 is a photograph of what? My Lord, Photograph Number 38 is a photograph of the dried marihuana that was seized on scene. That's just a photograph of the marihuana taken beside the scale. Is that a -- a scale, the property of the Victoria Police Department, or was that seized in the premise, or do you recall?
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That scale -- I don't recall that scale would be -- would be the property of Victoria Police Department. And then the next photograph -COURT: Sorry. ECCLES: -- Number 30 -COURT: Sorry, I want to make sure I got that straight. Is this a police scale, or is it one found in the apartment? My Lord, this photograph wasn't taken by myself. However, I believe it would be property of the Victoria Police Department. I can't say with certainty. COURT: Thank you. ECCLES: Photograph 39 is the same scale, with the marihuana on it, showing a weight of .08, correct? That's correct, My Lord. And then Photograph 40 is a close-up of the green plant-like material that analyzed as marihuana, correct? That's correct, My Lord. And Photograph 41 and 42, what are we looking at? It seems to be two photographs of the same thing. What is it? My Lord, Photographs Number 41 and 42 are of Exhibit Number 17 that was seized from the apartment. My Lord, the exhibits that were seized from the apartment were placed in brown paper bags. A majority of the liquid had -- was solid when we had seized it, because it had been refrigerated. However, when we placed it in our property and supply secure lockers, overnight it liquefied, creating oil, that when -- when the investigators removed it from the property lockers it broke through the brown paper bag, breaking on the floor of the Victoria police station. These are two the photos of the broken jar on the floor, correct? Yes, My Lord. And that would be Exhibit Number 17. Now, throughout the exhibit flow chart, as I understand that's Exhibit 3, there are these various H numbers for H-envelopes that various samples were taken from the identified exhibits and put into, correct? That's correct, My Lord.
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And in the usual and ordinary course, you -- the Victoria Police Department receives back a certificate of analysis that identifies what was analyzed to be in an identified H-envelope, correct? That's correct, My Lord. And each certificate corresponds to one of these H-envelopes on the list, and then each certificate identifies which H-envelope analyzed as what, correct? Yes, that's correct, My Lord. And you've brought with you to court today the originals of the certificates that correspond to all of these H-envelopes, correct? Yes, that's correct, My Lord. ECCLES: My Lord, I've had a brief discussion with my friend, and what we propose, subject to Your Lordship's direction, is rather than entering each envelope individually, given there's no issue, but there were some that didn't analyze, what we propose is to enter all -- what I propose is to enter these certificates as a single exhibit, and then with my friend we'll be able to resolve which specific items on the flow chart did not analyze as containing a prohibited substance. I believe there's seven of them that didn't analyze. And we'll be able to cross match them and provide Your Lordship with basically a concordance, which will expedite the evidence. I don't think this is contentious, but I'm being cautious. COURT: You're not proposing to tender then the envelopes and their contents? ECCLES: No, My Lord. Not in light of the admission. It's just -COURT: All right. ECCLES: -- to facilitate being able to track what's what at the end of the day. COURT: So Exhibit 4 will be the certificates relating to those envelopes? ECCLES: Yes, My Lord. COURT: And how many of them? ECCLES: Forty-one, I believe, is the count that I have, My Lord. TOUSAW: Without objection, My Lord. COURT: All right. Forty-one certificates of analysis, then, will form Exhibit 4. I think for bookkeeping purposes we'll start at the top of the
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pile and name them 41 -- or, sorry, 4.1, 4.2, down through 4.41, so that when counsel identify the seven that did not analyze as anything of any significance to this matter, you can simply tell me what numbers they are. ECCLES: Certainly, My Lord. And we'll also provide Your Lordship with a sheet listing what didn't analyze and which exhibit number it is on the flow chart, so that there's no confusion for anyone. COURT: All right. Thank you. ECCLES: Thank you, My Lord. Do you have those certificates with you, Constable? I do, My Lord. ECCLES: Please produce them to Madam Clerk. It's 4.1 through 4.41 collectively, My Lord. COURT: All right. Thank you. EXHIBIT 4.1 (on voir dire #1): Analyst Report No. 09 14838 V EXHIBIT 4.2 (on voir dire #1): Analyst Report No. 09 14835 V EXHIBIT 4.3 (on voir dire #1): Analyst Report No. 09 14839 V EXHIBIT 4.4 (on voir dire #1): Analyst Report No. 09 14803 V EXHIBIT 4.5 (on voir dire #1): Analyst Report No. 09 14804 V EXHIBIT 4.6 (on voir dire #1): Analyst Report No. 09 14805 V EXHIBIT 4.7 (on voir dire #1): Analyst Report No. 09 14806 V EXHIBIT 4.8 (on voir dire #1): Analyst Report No. 09 14807 V EXHIBIT 4.9 (on voir dire #1): Analyst Report No. 09 14808 V EXHIBIT 4.10 (on voir dire #1): Analyst Report No 09 14809 V Original Original Original Original Original Original Original Original Original Original
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EXHIBIT 4.11 (on voir dire #1): Analyst Report No. 09 14810 V EXHIBIT 4.12 (on voir dire #1): Analyst Report No. 09 14811 V EXHIBIT 4.13 (on voir dire #1): Analyst Report No. 09 14812 V EXHIBIT 4.14 (on voir dire #1): Analyst Report No. 09 14813 V EXHIBIT 4.15 (on voir dire #1): Analyst Report No. 09 14814 V EXHIBIT 4.16 (on voir dire #1): Analyst Report No. 09 14815 V EXHIBIT 4.17 (on voir dire #1): Analyst Report No. 09 14816 V EXHIBIT 4.18 (on voir dire #1): Analyst Report No. 09 14817 V EXHIBIT 4.19 (on voir dire #1): Analyst Report No. 09 14818 V EXHIBIT 4.20 (on voir dire #1): Analyst Report No. 09 14819 V EXHIBIT 4.21 (on voir dire #1): Analyst Report No. 09 14820 V EXHIBIT 4.22 (on voir dire #1): Analyst Report No. 09 14821 V EXHIBIT 4.23 (on voir dire #1): Analyst Report No. 09 14822 V EXHIBIT 4.24 (on voir dire #1): Analyst Report No. 09 14823 V EXHIBIT 4.25 (on voir dire #1): Analyst Report No. 09 14824 V EXHIBIT 4.26 (on voir dire #1): Analyst Report No. 09 14825 V
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EXHIBIT 4.27 (on voir dire #1): Analyst Report No. 09 14826 V EXHIBIT 4.28 (on voir dire #1): Analyst Report No 09 14827 V EXHIBIT 4.29 (on voir dire #1): Analyst Report No. 09 14828 V EXHIBIT 4.30 (on voir dire #1): Analyst Report No. 09 14829 V EXHIBIT 4.31 (on voir dire #1): Analyst Report No. 09 14830 V EXHIBIT 4.32 (on voir dire #1): Analyst Report No. 09 14831 V EXHIBIT 4.33 (on voir dire #1): Analyst Report No. 09 14832 V EXHIBIT 4.34 (on voir dire #1): Analyst Report No. 09 14833 V EXHIBIT 4.35 (on voir dire #1): Analyst Report No. 09 14834 V EXHIBIT 4.36 (on voir dire #1): Analyst Report No. 09 14836 V EXHIBIT 4.37 (on voir dire #1): Analyst Report No. 09 14837 V EXHIBIT 4.38 (on voir dire #1): Analyst Report No. 09 14840 V EXHIBIT 4.39 (on voir dire #1): Analyst Report No. 09 14841 V EXHIBIT 4.40 (on voir dire #1): Analyst Report No. 09 14842 V EXHIBIT 4.41 (on voir dire #1): Analyst Report No. 09 14843 V
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MR. ECCLES: Q Now, Constable, as we've been going through the
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photographs you've mentioned what appears to be a syringe that we saw in one of the photographs next to the -- the pill counting or pill press tray, and if we look at Photograph Number 10, we can see a clear view of that particular item in the bottom right of the photograph, as one looks at it sideways, correct? I'll just -- saves us rooting about for it. Photograph Number 10 is this particular syringe, correct? A Yes, that's correct, My Lord. Q That -- from looking through your exhibit flow chart, it doesn't appear that that particular item was actually seized. Can you just check and let me know whether I've missed something? A Yes, My Lord. The -- the syringe was not seized from the apartment. THE COURT: Okay. MR. ECCLES: Q It was simply overlooked? A Yes, My Lord. Q Now, you've also mentioned that you DV -- you filmed the events as they occurred, correct? A That's correct, My Lord. Q And you have the original of the DVD, and you've also provided copies for myself and a copy for Mr. Tousaw, correct? A That's correct, My Lord. Q And on the -- the video, it's a video camera; does it have the capacity to record sound as well as image? A Yes, it does, My Lord. Q And while you were filming were you providing a narrative on the disk? A My Lord, prior to entering into the suite I provided a brief narrative indicating the time and date and -- prior to entering the suite. Upon entering the suite, I filmed the entire suite, panned in and out, but did not provide a narrative while actually filming. Q So the filming -- the visual images are without audio accompaniment? A That's correct, My Lord. Q The audio accompaniment is prior to entering, where you're identifying who you are, the time, and the location, is that fair to say? A Yes, that's correct, My Lord. MR. ECCLES: My Lord, we're having some difficulties
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with our technology here. Apparently the power bars for the back table don't work. What I'm proposing, subject to anything my friend might say -- he has a copy of this particular disk, he's going to review it over the lunch hour, and if there's a need for the officer to give evidence about the disk, I can ask the officer to re-attend at my friend's convenience, and if not, I'm proposing, with my friend's and the court's concurrence, that the DVD disk showing these items be entered as an exhibit by admission. TOUSAW: I have reviewed the DVD evidence, My Lord. I have no objection. COURT: All right. Constable, have you got the original? I do, My Lord, yes. COURT: You've looked at it, and it's accurate as to what you recall the day you entered this apartment? I have, My Lord. I reviewed it prior to attending today, and it is accurate. COURT: Are you tendering this now? ECCLES: Yes, My Lord. COURT: As Exhibit 5? TOUSAW: Without objection, My Lord. COURT: Thank you. ECCLES: Could you produce the disk to Madam Clerk, please, Constable? Yes, My Lord. EXHIBIT 5 (on voir dire #1): scene video images DVD containing
MR. ECCLES: Q I'm providing you now a copy of that disk that you made for the Crown. Can you just confirm that what I've given to you is indeed an exact copy of Exhibit 5? A Yes, My Lord. This is an exact copy of the original that I provided. MR. ECCLES: Thank you. Could I have that back, please? For Your Lordship's ease of reference, should you need it, this copy is for Your Lordship. I don't know whether we want to mark it as an exhibit for identification, just out of an
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abundance of caution. THE COURT: This is just a copy of Exhibit 5? MR. ECCLES: Yes, My Lord. It's just so that Your Lordship has one, and should you wish to review it in your chambers -THE COURT: You're assuming my technical ability is greater than that of the Court Services Branch, where you apparently can't plug something in? MR. ECCLES: We're optimistic, My Lord. THE COURT: Oh, I see. All right. MR. TOUSAW: My Lord, I can advise that I had no problem on my MacBook playing the disk. It's a series of MPEG files, only the last of which contains the video. The prior ones are audio. THE COURT: I see. All right. Thank you. MR. ECCLES: Q And, Constable, having heard Mr. Tousaw's description of what's on the disk, is that accurate? A Yes, that's correct, My Lord. THE COURT: All right. MR. ECCLES: Thank you, My Lord. Those are my questions -- those are my questions for the officer. THE COURT: All right. Mr. Tousaw. MR. TOUSAW: Thank you, My Lord. CROSS-EXAMINATION ON VOIR DIRE BY MR. TOUSAW: Q Constable, just a bit of a -- bit of background. When you took the photographs that you describe in Exhibit 2, the Crown's book of photographs in this matter, was this prior to or subsequent to other members of Victoria Police entering the apartment? My Lord, this was after entry into the apartment. To the best of your knowledge, are the exhibits and the items depicted in the photographs in the location they were in when Victoria Police entered the apartment to execute the search warrant? Yes, My Lord. You mentioned that you did not yourself take the photograph shown at Photograph 38 in Exhibit 2, the small bit of marihuana on the scale. Do you know who did take that photograph? I don't, My Lord. To the best of my knowledge it would be the investigating officers, Constables Gill or Sark who took those photographs as they
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processed the exhibits. And again, just to the best of your knowledge, would that -- would those photographs, 38, 39, and 40 of the small amount of dried cannabis on the scale, would those have been taken at the scene, or would those have been taken somewhere else? A Those would not have been taken at the scene. They would have been taken, to the best of my knowledge, at the Victoria police station. THE COURT: You didn't see them taken? A No, I did not, My Lord. MR. TOUSAW: Q I know from the exhibit flow chart and your descriptions of the scene, this appears for all intents and purposes to be a bakery set up in an apartment; is that a fair description? A Yes, it is, My Lord. Q There's cookware, as you've described, mixing equipment, flour, those kinds of supplies consistent with baking the cookies that you've seen in these photographs, correct? A Yes, it appeared that way, My Lord. Q Do you recall with respect to the handwritten recipes that are described and shown in Exhibit 2, Photographs 12 and 13, did you take individual photos of each of the recipes? A No, My Lord, I don't -- I don't believe we did. They were taken as lies there on the -- on the table. Q Did you, or to your knowledge any other member of the Victoria Police Department, look through the recipes? A Not to my knowledge, My Lord. Q So you're not in a position to testify here today as to whether or not for example the term "Ryanol", which appears for example in Photograph 10, appears in any of those recipes? A No, I can't, My Lord. Q You did not see or seize from the scene any isopropyl alcohol? A No, we did not, My Lord. Q And you did not see or seize from the scene any butane or ether or other chemical solvents, is that correct? A That's correct, My Lord. Q Were you present at the time the jar that's depicted in Photographs 41 and 42, the accident Q
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with the jar when it broke on the floor of the Victoria Police Department, were you present when that occurred? A I was not, My Lord. Q We see in photographs of the fridge, which I believe are 34 and 30 -- sorry, 35, at least, a number of these, I think you've described them as peanut butter jars. Do you see Photograph 35, in the top left corner appears to be a date on one of the jars; do you see that? Do you have the exhibit book in front of you? A I don't, My Lord. MR. TOUSAW: Perhaps if the witness could be provided with Exhibit 2. Q Photograph 35, as you testified, is the interior of the fridge in the bakery, correct? A Yes, that's correct, My Lord. Q And you see in -- on some of the jars what appear to be dates, is that correct? A Yes, it appears that way, My Lord. Q And one of the jars is labelled, "Butter," and appears to contain a bit of a thicker substance than some of the other jars that you've described as having an oily liquid, correct? A Yes, that's correct, My Lord. Q And over on the top shelf to the right there's a jar marked, "Cannoil," correct? A Yes, that's correct, My Lord. Q And that appears to have on the bottom of it thicker more solid mass at the bottom and then more of a liquid mass on the top, correct? A That's an accurate description, yes, My Lord. Q This is what you were describing when you were referring in Exhibit 17 that it actually emulsified back into oil and then -- and then broke on the floor of the Victoria Police Department, correct? A Yes, that's correct, My Lord. Q You see on the -- on the second shelf, second shelf from the top, there's another one of these Adams peanut jar is labelled, "Massage oil," correct? A Yes. On -- in the second shelf, in the middle, that's correct, My Lord. Q And then to the right of that, underneath the red tray, there's something that appears to be labelled, "St. John's." Do you see that?
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Yes, I do, My Lord. Do you know if that jar was seized? I believe it was, My Lord. And that would be Exhibit 30 on the exhibit flow chart, which is Exhibit 3 in these proceedings? A My Lord, permission to look at the flow chart? THE COURT: Yes. A Exhibit Number 28 as well as Exhibit Number 34 on the exhibit flow chart are both St. John -- "St. John's" labelled jars, My Lord. THE COURT: So 28, 30, and 34? MR. TOUSAW: Yeah. Thank you, My Lord. A Yes. Thank you, My Lord. Q I see on the exhibit flow chart there's a jar, Exhibit Number 38, is marked, "Lip balm jar." Do you recall where that was seized? A Number -Q Number 38. Appears it was seized from the bottom, fridge, is that accurate? A Yeah. That -- it appears that way, My Lord. However, I can't see it in the photo. Q So in making some of these seizures, at least, of the items that were in the fridge, you don't have necessarily individual photographs of each one, with the exhibit tags, unlike, for example, some of the earlier photos of the cookies or the jar depicted in -- on page 4 of Exhibit 2, correct? A Yes, that's correct, My Lord. Q The red tray on the middle shelf, do you recall what that consisted of? A Yes, My Lord. The -- the red tray in the middle shelf appeared to be a -- like a dough substance that had hardened from being in the fridge. But it appeared to be a baking tray that was used for baking cookies, or bakery goods. Q And was that red tray itself seized? Perhaps it's Exhibit 19? A Yes, My Lord. The red tray containing the brown substance was seized from the middle shelf of the fridge. Q And then we can also see in the middle shelf of the fridge what appears to be an orange juice container, and behind that what appears to be a large container of olive oil; is that consistent with your memory? A Yes, that's correct, My Lord. Q And those items were not seized, correct?
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No, they were not, My Lord. And on the bottom shelf, the three cartons of eggs, those were not seized, correct? They were not, My Lord. Other than the equipment, the baking equipment that you'd described in your earlier testimony, did you find any chemical apparati, or apparatuses of any kind, beakers, solvent, containers, things of that nature? No, we did not, My Lord. The jars that are depicted in -- at page 35, in the fridge, and some of the jars that are depicted earlier in the book of photographs, those are the same type of jar and consistent with the empty peanut butter jars that -- that appear on page 34 of Exhibit 2, correct? Yes, that's correct, My Lord. I'll just direct your attention to Photograph Number 10 of Exhibit 2, and that's the photograph with the exhibit tag number 6, jar labelled, "Ryanol," and the needle-less syringe. Do you have that? Yes, I do. There -- there appears to be something on the towel directly above, in the photograph, at least, the syringe. I'm wondering if you recall what that was. It appear -- it appears to be a gelatin capsule. And do you know if that one was full or empty? I don't recall. I -- I don't believe that any of them were full. If you turn the page to Photograph 11 of Exhibit 2, which you've indicated is a capsule counter, that's sitting on the table there with the towel and the syringe and the empty gel cap, correct? Yes, that's correct, My Lord. And in fact I think there's a wide-angle shot that shows the entire table, and that's page 20, and to a lesser extent page 21 of Exhibit 2. That small desk or table, for lack of a better word, that is depicted in the photograph as it was when Victoria Police entered the apartment? Yes, that's correct, My Lord. And there's a chair just set up right in front of the towel with the Ryanol sitting on it and the syringe and the capsule counter, correct? Yes, that's correct, My Lord.
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MR. TOUSAW: Just have a moment. THE COURT: Yes. MR. TOUSAW: My Lord, I have no further questions for this witness. Thank you. THE COURT: Any re-examination? MR. ECCLES: No, My Lord. THE COURT: This witness may or may not have to come back, is that -- depending on whether or not you can get the machinery to work? MR. ECCLES: Yes, My Lord, that's correct. So perhaps he could be excused, pending notification. MR. TOUSAW: And, My Lord, I'll just say, if it's -- if Your Lordship wishes and it's convenient for the officer, I don't anticipate having any questions arising from the video. So even if it's able to be played with the technological difficulties, I don't know that I'll need the officer back. THE COURT: All right. Thank you very much for your assistance, Constable. You are now excused. We may need to call you back if we can't operate the equipment. A Absolutely, My Lord, thank you. (WITNESS EXCUSED) MR. ECCLES: My Lord, subject to -- given some of my friend's questions of the constable, I just wish to confirm there is no continuity issue on the voir dire, and the exhibit flow-chart is being admitted for the truth of its contents. If that is indeed the case, subject to matching up H-envelopes to certificates, if that is indeed the case then that's the case for the Crown on the voir dire. THE COURT: Well, I'd gathered from the previous admission, there is no continuity issue. The whether or not the flow chart is admitted for the truth of its contents I don't think has been yet addressed. MR. TOUSAW: Yes, My Lord, there is no continuity issue, and I am prepared to admit, and indeed I believe the admissions that are Exhibit 1 in these proceedings contemplate that the flow chart be admitted for the truth of its contents. THE COURT: All right. MR. ECCLES: My Lord, just to assist my friend and the court, if my friend could turn to page 3 of the
41 VOIR DIRE Proceedings
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flow chart, I believe Your Lordship has a copy of that, the following items did not analyze as containing any prohibited substance. Item 28, one St. John's jar. Item -- found in the middle shelf of the fridge. Item 30, one St. John's jar found in the middle shelf of the fridge. Item 32, green jar, middle shelf, fridge. Item 34, St. John's brown jar, middle shelf of fridge. Item 37, yellow jar, bottom of the fridge. Item 38, lip balm jar, and Item 40, arnica oil. The lip balm jar was the bottom of the fridge. Arnica oil, Item 40, two of them, middle of the fridge, neither analyzed. COURT: Sorry, Item 42. ECCLES: No, sorry, Item 40, My Lord. COURT: All right. ECCLES: Which is, there's two jars of arnica oil. COURT: Oh, I see. Right. ECCLES: Neither were analyzed to contain any prohibited substance, or any -- anything that the analyst could identify. So just for my friend, who's desperately writing a note, it's Items 28, 30, 32, 34, 37, 38, and 40, were the items that did not analyze. All other items analyzed as containing the substance identified in the information, or in the indictment. COURT: Well, I thought there were 11 H-envelopes that didn't -ECCLES: I thought -COURT: -- come back with positive results. ECCLES: It was seven, My Lord. COURT: Seven, I see. ECCLES: Seven came back without positive, and the balance -COURT: All right. So it's those seven. ECCLES: -- which were these 34. Those seven corresponding to the H-envelopes on the chart did not analyze. COURT: All right. TOUSAW: I thank my friend for that. My Lord, the next -- the witness that I'm going to propose calling is Mr. Ted Smith. I note the time, and I'm loath to get underway just to have his testimony interrupted in just a few minutes, but I'm in Your Lordship's hands. COURT: Just so that we can keep -- or I can keep myself straight, was that the Crown's case on the
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voir dire? ECCLES: Yes, My Lord. COURT: All right. ECCLES: With the admissions. COURT: With the admissions. And so we're now into your case, and your first witness is going to be more than 13 minutes and 10 seconds? TOUSAW: Absolutely, My Lord. COURT: We'll resume at two o'clock. TOUSAW: Thank you, My Lord. CLERK: Order in court. (PROCEEDINGS ADJOURNED FOR NOON RECESS) (PROCEEDINGS RECONVENED)
THE CLERK: Thank you, My Lord. Recalling the matter of Her Majesty the Queen against Owen Edward Smith, My Lord. MR. ECCLES: My Lord, we seem to have the machine working. THE COURT: All right. MR. ECCLES: So what I propose is to play the video, and then the Crown is done. THE COURT: All right. (VIDEO BEING PLAYED) (VIDEO STOPPED) MR. ECCLES: That is the video, My Lord. THE COURT: Thank you. Mr. Tousaw. MR. TOUSAW: Thank you, My Lord. The accused calls Leon "Ted" Smith. LEON EDWARD SMITH a witness called for the Accused, affirmed. THE A THE A THE A THE THE MR. CLERK: Would you state your full name, please? Leon Edward Smith. I'm -CLERK: Sorry. -- also known as Ted in the community. CLERK: Would you spell your last name. S-m-i-t-h. CLERK: Thank you. COURT: You may be seated, if you wish, Mr. Smith. TOUSAW: My Lord, might I give Mr. Smith a glass of water?
43 VOIR DIRE Leon Edward Smith (for Accused) Proceedings
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THE COURT: Of course. MR. TOUSAW: Thank you. Now, My Lord, I briefly discussed with my friend that I propose to just ask Mr. Smith a few leading questions to sort of set the stage in a synopsis type format, and then begin the -THE COURT: All right. MR. TOUSAW: -- direct examination, with your leave. EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: Q A Q A Q A Q Mr. Smith, how old are you? I am 42 years of age. And when were you born? I was born June 22nd, 1969. And are you the proprietor of an organization known as the Cannabis Buyers' Clubs of Canada? Yes, I am. Although it is what I refer to more as an unincorporated cooperative, but at this point I am the owner and provider -- proprietor of that. And briefly, because we'll have an opportunity to explore this in more detail later, but briefly what -- what is the Cannabis Buyers' Club of Canada? And I'll refer to that, Your Lordship, as the CBC of C, just for ease of reference, or the -- the Club, going forward. The Cannabis Buyers' Club of Canada is a group of individuals who supply cannabis products to people with permanent physical disabilities and diseases, and we have a number of services that we try and provide. As I mentioned, it's much like an -- unincorporated cooperative, where essentially a number of individuals like myself have kind of banded together to do our best to protect vulnerable citizens in medical need of cannabis and cannabis products. And where is the CBC of C currently located? We are currently located at 826 Johnson Street. That's in the City of Victoria? In the City of Victoria, right downtown near Blanchard. How long have you been located at that address on Johnson Street? It has been over ten years; this March will be 11 years that we operated every single day in that location. And you are familiar with the accused, Mr. Owen
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44 VOIR DIRE Leon Edward Smith (for Accused) in chief on voir dire by Mr. Tousaw
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Smith, in this matter? I am very familiar with Owen Smith. And you're not -- despite the similarity in last name, you're not related by blood to Mr. Smith, correct? And in fact we have the same middle name, but we are of no relation. What was Mr. Owen Smith's role with the CB of C -- the CBC of C, on the 3rd of December, 2009? On that day Owen was working for us, making some of the, I think it was 28 food and skin products we offered at the time. We're up to 31 now. But I think we had 28 various products that he could have been making on any given day. Routinely cookies are made every day. Routinely the Ryanol capsules that were seen are made every day. And -- and then, you know, an assortment of other things as they're being demanded. You were present in the courtroom this morning for the testimony given by the exhibit officer, correct? Yes, I was. And is that, the location that was described at 8, I believe it was 65, Yew Street, in the City of Victoria, is that the location that Mr. Owen Smith, the accused, primarily worked? Yes. That was of the location that we had rented just for the -- the Club and its kitchen, and Owen was the, you know, kind of head baker at the time. There were a couple of other people that would help out, but he was there more often than anyone. Without going into great detail, because we'll come to it a little bit later, generally what type of products does the CBC of C sell to its members? Okay. Well, we would have, you could say, two types of products. There would be smokeable products, and alternatives, which would be either edible or topical, and among the smokeable products we would have a range of various kinds, because they all have different unique benefits. And so we have a range of usually about ten different kinds of cannabis to smoke. And then we would also have, as I said, up to 28, I think at the time it was pretty even, about 14 food products, 14 skin products. The food products that we sell most consistently are the cookies. They're kind of an easy introduction for
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people unfamiliar with eating cannabis. Most of the members that come to our club don't have a history of eating it, so cookies is often their first choice. But it's actually our junk food. We have many other products that are healthier, and some specific towards certain medical problems. And then on the -- and maybe specifically the Ryanol capsules were -- we cook the cannabis into a grape seed oil, and then simply put it into a gel cap. And on the topical side, we have a number of massage oils, and we have a lip balm, as you saw in the exhibits, and we also have some salves as well, which are all fairly similar in how they're made. In fact, in a lot of ways the topical and edible products are almost interchangeable in some sense, in terms of how they're made and how they can be used. You wouldn't, however, eat the lip balm, for example? You wouldn't, but it wouldn't really hurt you either. It might bung you up a little bit, but it certainly wouldn't have a negative impact. You know, all of our topical products are very, you know, safe in -- in the home, and so, you know, someone would -- could accidentally consume any of them, and it wouldn't have anything, you know, in them that might make a person ill. They're essentially, you know, the same products in some ways. Again, briefly, but perhaps you could give His Lordship an overview of how an individual becomes a member of the Cannabis Buyers' Club of Canada. To become a member of our club, a person has to produce proof of a permanent physical disability or disease, as diagnosed by a physician, or otherwise confirmed with information from the health-care system. There have been at times, for example, cases of people coming in with a test for cancer, and the test would prove that they had a positive diagnosis for cancer, and it has the laboratory's name on it, but not necessarily a doctor's signature. But certainly the information that we require has to be, you know, authentic and from, you know, the medical establishment. But primarily it is a doctor's diagnosis that the person would produce. And photo identification is
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absolutely necessary as well. And when you say a doctor, do you mean an allopathic physician, an MD? Yeah. Just a doctor. Not a naturopath, not a chiropractor, not a doctor of Chinese medicine. It is something that we are very careful about, and we insist that people go and get information from a physician or a physician's office that -So perhaps walk the court through the process of becoming a member of the CBC of C. Individual comes to the physical location on Johnson Street, walks in, and what happens next? Okay. Well, when a person comes in, and we do meet some people who are unable to come to our store, so we do home visits as well, but if a person comes in the front door with the information, we start the sign up right away. There's usually someone available, and they'll sit through a 45-minute explanation of the services of our club. We give them the forms for Health Canada so that they can go to their doctor, and hopefully get that signed. We go through the -- the rules of our club. We talk about some of the, you know, kind of physical things that they need to know about the space, and we give about a five-minute lesson in chemistry, so that they can become more aware of some of the nuances with this medicine. And then we go through the products, every single one of our food and skin products. It's important for us to explain to people that join our club what we have to offer, and what all the potential benefits that they could receive are from this medicine. And so we -- we take as much time as -- as possible. Really 45 minutes is -- is bare minimum. Sometimes if people have the time and ask questions, the sign up can take quite a bit longer. After they're read the rules and shown the products, they're taken through the Club and its physical space, and shown all the services that we have, and told how things operate, and from henceforth they have a membership. Is there a process by which you verify with the individual's physician, health-care practitioner, the information that that doctor provides? No, we -- we do not do that, but --
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And so an individual would come in. If they come in with nothing from a physician, what happens to that individual? They're asked to leave right away. So there has to be some form of verification sufficient to satisfy you, or whomever is working, that they have a bona fide medical condition for which cannabis might provide relief? Yes. They have to satisfy us that they have the proper documentation, and if they don't, then they're told to -- to go get it. We probably turn aside a person for every person that we accept. And sometimes that's simply to get the proper documentation, and sometimes it's -- people simply don't qualify. For example, people with mental health illnesses, you know, there's a lot of things that cannabis can help with, you know, eating and sleeping, just in general, but those issues do not qualify one for our club. It has to have progressed into something further than that, that would be, you know, Crohn's disease, or -- or something else that would be of a physical nature. And so we turn aside people that have got less serious medical problems all the time. It's frustrating to do, but it's important for us to help the most seriously ill people and -- and start with that. You mentioned as part of the intro that you give to new members that you go through the organization's rules. Can you tell His Lordship what those rules are? Certainly. The first rule that we stress, actually at several points, is that all the medicine that we sell is for the personal use of the member, and is not to be resold or given. We have had problems in the past with this matter. In fact, the first raid, I believe Your Lordship will receive some court cases that we've been in, and the first raid occurred from a member I had cut off because he had been caught reselling our cannabis. And that is very strict policy of our club, that I have actually probably taken about five to six hundred memberships away from people that have even been suspected of giving or selling their cannabis to others. We are very careful about that. And so the members are -- are warned that any
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question of its -- you know, the medicine being used for others, and they will lose their membership. They are also told that any exposing of the cannabis within a block of the facility is unacceptable. We do our best to have a very low impact upon our neighbours, so that there aren't complaints that people are smoking or -- or doing anything in the neighbourhood that would make people feel uncomfortable. So we're quite careful to make sure that we have a very low visibility in the neighbourhood as well. Those are the two main warnings. We also give some warnings about the medicine itself. For example, we warn members not to operate heavy equipment when using our products, or -- and in particular the edible products. And so we warn them about that, and driving. We warn them about certain strains called sativas that could increase the heart rate, and people with heart problems would want to be aware of that potential. It wouldn't necessarily cause a heart attack, to my understanding, but it is an area of concern, so we ask if they have a heart problem. Those, I think, are the most substantive sort of warnings that we give about what is acceptable and what isn't. You also mentioned as part of the introductory session with a new member that you provided what you call the Health Canada forms. What did you mean by that? Well, Health Canada has a Marihuana Medical Access Program whereby our members could obtain a licence to possess or grow cannabis, or, if they're unable to, to find what's called a designated grower who would grow for them. And so every person that joins, we give them forms, we explain to them, you know, how to proceed, and answer any questions that they may have about the program and how it works, or if they need any other forms, we have, you know, the whole range of forms available. It's quite a package that most people find quite daunting, so we're very happy to provide that service. In fact we provide that service to non-members as well. If anyone from the public comes to our front door, we will provide the Health Canada forms and -- and assist them in
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filling them out as much as possible. And so we, you know, do our best to encourage the members to do that. You also mention that you describe to the members what other benefits the CBC of C has. Besides the sale of cannabis infused products and cannabis itself, what other services are you referring to? Well, one of the opportunities that we have available to us is a smoking room, or a vapour lounge where there is a vaporizer there, which is an alternative. The -- I guess several years ago machines were developed that would not burn the cannabis, but it would make the active chemicals and the THC available through a vapour. And these machines aren't cheap. The one in our room is about $500. So we have that available to people who can't otherwise afford their own vaporizer. And the room is, you know, a very good opportunity for people to escape the -- the weather. Many people are unable to smoke in their homes, if they live in different shelters. For example, at the Salvation Army you can't even take cannabis home with you at night. And so the smoking facility is very important for people that want to be protected, you know, from the elements or -- or other hassles that may occur, if they're smoking their -- their medicine in public. It's also been an incredible resource for the members to talk to each other about their medical issues, their legal problems, their housing problems, their family problems. It's very much a community there, and the smoking room is a place where people can network and find out about, you know, various services that -- that they might not have been aware of, or -- or other opportunities for housing or work. And so the social aspect of the Club is important to -- to many. We provide some nutritional and health-care advice as well. In particular my girlfriend Gayle is a herb and nutritional -- to call it an expert might be challenged, but she is certainly very versed in the fields of herbs. In fact many of our products we are going to talk about we developed with her. And many of our members have quite complex medical problems, you know. Most people that join our club the first time don't have just one problem, you know, they're later in
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life, in their forties, fifties, sixties, and they might have a back problem and a tummy problem and migraines; and often the older people get, the more complex their health becomes. And Gayle is excellent in helping people understand changes in their diet, first and foremost, that they might be able to make, changes in their lifestyle, and other alternative health-care practices that they might not have considered. And it's something that occurs as well within the staff and -- and members of our club, but certainly, you know, Gayle is the leader in -- in helping people help themselves, that a lot of our club is about that, right? We're really empowering people to look after themselves. That's what we're hoping to do. And so -- and then there are other social opportunities to become involved in our club as well, educational opportunities, and -- and things for people to do that -- yeah, so those are the general services that we provide. You mentioned having staff members. How many employees are there at the CBC of C? I believe I'm employing about 13 full-time staff right now. And this includes staff at the Johnson Street location and at the bakery? Yes. Or at least as of December 3, 2009, that's what it included? Yeah. I don't think there were that many of us back at that point. It might have been closer to ten. But, yeah, the 13 would include people working in the store. And now no one works sort of full-time in the kitchen any more. A person would have two days in the kitchen and two days in the store, which creates a wonderful balance for them individually, in that they have two days making medicine, and then they'll spend two days actually providing that medicine to people, at which point they get to really see how important it is to -- to our members, and they get to describe, you know, how it works for them. And so it's a really nice kind of balance to have people both making the medicine and -- and helping provide it. You also mention that there are opportunities,
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educational opportunity for -- let me back up. How many members roughly does the CBC of C have today, and, if you know, as of the 3rd of December, 2009? I believe today it's around 3,700 active members, and I don't recall the numbers that we were using back then, but I believe it would have been around 3,200 members. That would -- that would seem about right. And you mention there were educational and other opportunities available for the members to get involved. What did you mean by that? Well, we do have an incorporated non-profit society. The International Hempology 101 Society educates the public about cannabis and prohibition, and we do that in a number of forums, and at universities in particular. The University of Victoria, we have the largest student club on campus, and I teach a free lecture series at the university. This is the sixth year of that lecture series. And that is free and open to the public. And we hold annual conventions at the university. One of our posters was on the wall that the picture was of our 10th annual. We have our 13th annual convention coming up here soon. We now have clubs at the Vancouver Island University in Nanaimo as well, and UBC in Vancouver, and we will be having our second conventions on those campuses coming up here shortly. And we hope to expand to other campuses from there. In fact I'm working on a textbook for hempology that will allow us to expand to other campuses across North America, but at this point most of the work of hempology has been local. We have other activities as well. For example, at the end of the month we'll be having a potluck supper for our 16th anniversary of the Buyers' Club. We have a couple of potlucks a year. It's really wonderful to bring people together and share a meal and -- and just relax in the store, and -- and we do that a few times. We also, coming up in February, have something called International Medical Marihuana Week, which used to be a day, but now we have seven full days of events, including a movie night and art auction. And the convention is in fact
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the end of that week of events. And the International Hempology 101 Society, is it fair to say that the scope of that society goes beyond just cannabis for medical purposes? Certainly the scope of Hempology is broader. We educate people a lot about hemp, for example, and the value of using hemp in industrial processes and in agriculture. So we also talk about legalizing for recreational purposes, to be sure, fighting government laws like Bill C-10. That is definitely a part of our mandate. But I would say without a doubt that the majority of our activities, and the focus of the print, the newspaper, for example, that we publish, the majority of that information and the majority of our activities are to bring attention to the medical issues around cannabis. So a person who consumes cannabis for non-medical purposes, for recreational purposes, could participate in these International Hempology events, correct? Yes. But they -- could they become also by virtue of that activism a member of the CBC of C? No, not at all. They're very distinct in their memberships. You know, the closest a person involved in Hempology would get would be our monthly board meetings are held in the smoking room of the Buyers' Club, so they would get to come to the facility once a month and see what we have. And we've got, like, books and information there. But certainly being a member or being on the board of Hempology 101 does not gain you access to any of the products of the Buyers' Club, or other services like the smoking room or anything like that. I guess the one exception would be the forms from Health Canada. I'm going to take you back, Mr. Smith, really to the beginning of your activity in this area, and I'm going to ask you to give me a bit of a history of the development of the CBC of C from its inception up to the 3rd of December, 2009, the day of the execution of the search warrant at the Chelsea apartments. I'll ask you first, what year did you -- what year did the CBC of C commence its activities? Well, in many ways I would have to explain the
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history of Hempology 101 along with the history of the Cannabis Buyers' Club. I moved to the island here in September of 1995, from Vancouver, although I'd only lived in Vancouver for less than a year. I'm from Ontario. I'm a seven generation farmer on both sides, and was writing books when I came out to the West Coast, and one of the first things I saw here on the coast was the clearcuts in the Clayoquot Sound, which broke my heart. And so when I learned of the opportunities that hemp had for making paper, and the whole, you know, sort of law and its impact, really struck me as one that was inefficient, I guess, in some sense. I'm an economist; I went to university in economics in math, and ended up with a philosophy degree. And when the laws regarding cannabis were explained to me as being more than just about the narcotic, and that there were elements trying to eliminate the production of hemp as well, it really occurred to me that we had a very -- very troublesome situation. And so I came across my first Hempology 101 meeting in Vancouver right about now, in 1995, and that was when I decided to dedicate my life to hemp, actually, more than cannabis. And then I moved here sort of later that year, in September of '95, to start educating about cannabis and prohibition, and I started having weekly meetings downtown, and I got a club at the university, and I would spend a lot of time at The Sacred Herb, which is a hemp store on Johnson Street in downtown Victoria. And I just lived in a van. I was 26 years old at the time. I didn't really have much, but I -- I wanted to make a difference in the world. And when I sat at Ian's store, I would meet all sorts of interesting people. Let me just -Sorry. -- pause there. When you say Ian's store -Ian, The Sacred Herb. -- you mean The Sacred Herb? Yes. One of the people I remember meeting early on was a lady, Leslie [phonetic]. Leslie volunteered in the AIDS community and lived in James Bay, and she made cookies and brownies, and
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a salve out of cannabis. And that was something I'd never seen or heard of before. And in working in the AIDS community in James Bay, Leslie had began selling these products to a lot of people that were dying of AIDS. And back in 1995 and 1996, people with AIDS didn't have many options, and they seemed to be dying very quickly upon diagnosis, and the people that were coming to Leslie would not only, you know, rave about how it had literally turned their health around, that they were losing weight and not feeling well, and that suddenly the use of the cookies and smoking would make them put weight back on, and it would make them want to live again. So I spent many days at Leslie's. And -- and I remember another young lady as well, Bonnie, I got to meet at Ian's place at Sacred Herb. Bonnie was 21 years of age at the time, and there were different meetings aside from mine back in 1999 in town, so I was going to a lot of meetings, and Bonnie was at as many as she could. And, yeah, Bonnie was a beautiful young girl, and -- and you wouldn't think she was sick until she would hold up her shirt and -- and pull back her -- hold up her arm and pull back her shirt, and -- and she was so thin, you -- you -- you would -- you wouldn't believe that she could get out of bed. And again, you know, Bonnie felt horrible, and the only thing that made her want to live and feel like living and enjoy life was smoking some cannabis. Bonnie really hit me. She was 21, and should have had a life ahead of her, but she didn't, and she didn't have a chance to wait for any laws to change back in 1996. There was really no inkling that things would. And again, for people with AIDS, and some of them, they were not planning on being around for very long, and the idea of, you know, risking breaking the law to get some cannabis was something that they would -- would do in instant, but there was no one that would provide it to them. At the same time in California, a man, Dennis Peron, had started up a Cannabis Buyers' Club, and -- in San Francisco, and we did everything we could to find out about how that organization worked. We really, really wanted to know their
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mandate, because we knew that they were there, they sold medical marihuana, but they didn't say to who. It was quite frustrating for us. So without having any road map before us, we spent days trying to figure out exactly how to draw the line in terms of who we would help and who we wouldn't, because we knew that would be a very critical matter. And that was when it was determined that we would help people with a permanent physical disability or disease, and that we wouldn't require their doctor to recommend it. And in essence, the doctor wouldn't even have to know that the member had joined our club. People were very afraid of their doctors, even, at the time, in terms of their admitting to using cannabis may have comprised the other medical services and opportunities. At least this was what they were expressing, that there was -- and the idea of doctors cooperating back then was -- was quite unreasonable as well. And so we -- we decided that we would help people that again had that proof of condition, and that that would be the bare, you know, kind of minimum threshold that we would require, and in looking at the Charter of Rights and Freedoms and in studying the Morgentaler decision specifically. And I'll ask you to stop there, because we're not going to ask you to venture any legal opinions, but for the -No, but I'm --- [indiscernible] decision-making process. Yeah, yeah. No, I -- you know, in terms of, though, you know, what we looked at, like, you know, we didn't have any case law in this area. We didn't have any precedent. There was no established clubs. We were really, you know, starting from -- from scratch. And, you know, we had the Charter of Rights and Freedoms, and we would -- you know, could interpret that in some way, but we really came to -- to think that a person had to have a medical necessity that would be determine -- essentially like chronic pain, but we had to expand it beyond chronic pain, for a couple of reasons. You know, some of the conditions that qualified for our club aren't necessarily painful. Glaucoma might be an example, where, you know, people lose their
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eyesight, but it doesn't necessarily, you know, cause them pain. But -- so the expansion from chronic pain was in part to include other, more obscure medical problems, and partly because the term chronic has got associations in the cannabis movement that actually caused us a lot of headaches, so really we try to refrain from using the word "chronic pain" as much as possible, because some people in mental health trauma feel that their pain is -- is chronic in nature. Mm-hmm. And so we really try to make that distinguishment as much as possible. And you're saying "we"; is this you and Leslie primarily, at this time, nineteen-ninety -At that time, yeah, we were -1996? -- pretty much partners at the time, although, you know, she was a very behind-the-scenes partner, and eventually, you know, faded off the radar. But certainly I was appreciating having someone else willing to, you know, nail out the details. So, yeah, when I say "we", it was -- it was her. But, again, I've always brought this club forward in the spirit of a cooperative, that it's myself and the members and the growers all working as a group to see what -- what we should do. It's not always what -- what I would like to do, but I really try to work in the best interest of -- of the members first, and, you know, in a way myself last. And so in 1996, does the CBC of C have a physical location at that time? No. When we started the van -- or when we started the Club, I lived in a van, and I simply got a pager and made up a pamphlet with some basic information about who we were and what we were providing. And I worked out of the van, doing deliveries for several months. And it was something that -- I was very poor myself, and -- though I refused to make money off the members at first, and I would actually take the pager, go to the person's home, get the money, then I would go get the medicine, and then I would take that medicine back, and I refused to make any money off that transfer. I would smoke joints
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with people along the way, maybe get fed the odd time, but I was able to look after myself in the van, and, you know, the people that I were meeting were, you know, very poor, and towards the end of their life, most often, and I -- I didn't have it in me to -- to ask for more. It was when we moved -- no, I think it might have been just before, but when I -- I got an apartment a few months later, member number 2 of the Club, Kathleen [phonetic], who I actually just saw again the other day, she was a 20-year-old girl struggling with cancer at the time. And again, it was -- it was really heart breaking to meet young people in serious medical distress. And -- and Kathleen and I got along very well, and she actually let me set up the Buyers' Club in the afternoon in her apartment, so that she would leave at noon, and give me the keys, and -- and come back at five or six o'clock, and -- and let me use her -- her home. And this is -And --- sometime in late 1996? This was May 1996, so just a couple months -- couple months after starting the Club. And then I think by the end of June she had moved out, and I had moved in, and that became our permanent location. And so -Or not permanent, but -It was your physical location? Our physical location. And so what types of products did you offer, if any, other than the dried cannabis at that time? At that time it was pretty bare minimum. There were several complications working with Leslie, including the idea that she would want the money upfront beforehand. We didn't have enough demand to have cookies sitting there all the time, and she didn't like making cookies and people coming and -- or not coming to get the orders. So it became quite cumbersome for the cookies. But I believe we had a salve and a massage oil available quite a bit, because they could stay in the fridge for quite a long time. So I would get a couple of those skin products, and -- and they would be available.
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But unfortunately for -- for the first few years we really didn't have, you know, on demand cookies, and such. It was ironically after Leslie had left that people started to demand cookies, and -- and -- and then I actually started to -- to make them myself, and -- and learn from scratch, because she wouldn't even tell me how she had been doing things. So kind of had to relearn things on -- on my own sense then. So this is May, June 1997, you're in the apartment, Kathleen's apartment, which then becomes your apartment, correct? Yeah. And you're living there? Yes. And you're also having members come to that apartment and purchase the medical cannabis and products from you at that location? Yeah. Is that right? And how long are you in -- where is that apartment? 107 Johnson Street. In the City of Victoria? Yeah, yeah. Just Johnson and Quadra. And if you could describe for His Lordship how long were you at that location, and what's the sort of growth of the membership while you're there? Okay. It was very slow, early on. As I said, I lived in a -- in a van when I started this. I was eating in soup kitchens, and really very disconnected from most of the city. And so the individuals that I met early on, it was really quite sporadic, you know, about maybe one, two new members a month, almost, for -- at certain points. But it was quite slow, and, you know, it was something that in fact was so slow, I had to collect welfare for the first three years, because I simply wasn't making enough money to pay the rent, and I kept the prices very close to cost, so I was just barely making enough to feed myself. And -- and so it was three years before we actually had enough members that we decided to -- to stop taking a welfare cheque, to collect the rent, basically, and pay for it ourselves. And then it -- it grew slowly, until November 2000, which is when we saw a surge in membership,
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and that was the month that I was arrested at the University of Victoria for sharing joints at a 420, and I was arrested one week later at a pot cookie giveaway in downtown Victoria. And it was something that brought a lot of attention to -- to my work, and the cookie giveaway in particular helped people become aware of the alternatives, that we had the alternatives available, and -- and, you know, talked about some of the benefits that people had received from them. And so the -- the cookie arrest actually was quite beneficial to the Club in that way, and it was actually because of those arrests that I had to hire people to -- to run the services of the Buyers' Club, in part because I had bail conditions preventing me from -- from doing that directly, and in part because of the increased demand. It was about four months after that that another person in my apartment building was arrested. TOUSAW: I'll stop you there, just because I'm noting the time. Perhaps -COURT: Oh, all right. We'll take the afternoon break. TOUSAW: Thank you, My Lord. CLERK: Order in court. (WITNESS STOOD DOWN) (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS) (PROCEEDINGS RECONVENED)
THE CLERK: Order in court. MR. TOUSAW: Thank you, My Lord. LEON EDWARD SMITH a witness called for the Accused, recalled. EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: Q Mr. Smith, I just remind you that you remain under oath. When we broke, you were speaking about the period of time in which the CBC of C was in an apartment on Johnson Street, and I just want to back up and ask you, what's the -- over that three- to four-year span, what's the growth of the
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membership? Hm. To the best of your recollection. To the -- to the best of my recollection, you know, we -- we started from, you know, a couple dozen in that first year, probably approaching 300 by the time I was arrested in November of 2000, had the two arrests. And from that point forward we were adding about two members a day for quite a while, and so we went from 300 to 400 within a couple of months' time. Couple of months after November of 2000? Yeah, yeah. And you remain -So --- at that time in the location on Johnson Street, in the -Yeah. -- apartment, not where the CBC of C is currently? Yeah, yeah. A little apartment in a small apartment building. And -And -Sorry. No, it's okay. In terms of your procedures or policies regarding membership criteria, at the time that you're in the apartment on Johnson Street, are they essentially similar to what you described earlier in your testimony? Yeah. The qualifications for membership were definitely, you know, the same. They have not changed in the 16 years. The one difference that makes it hard to determine the actual numbers, though, is that initially there was such fear of arrest for our members that many of them didn't want to submit their -- their names, even, to us, that they were so afraid that they would be sought after if I was caught. Because when I started the Club and -- and lived in a van and got a pager and a pamphlet, it was assumed that I would be getting arrested and -- and charged, and go through court. In fact we saw that as being the one and only way of really, you know, resolving this matter in any reasonable way, you know. And so the idea that, you know, I and others were going to be arrested
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and rounded up and -- and prosecuted was -- was sort of a given, and a lot of sick people didn't want to be included in that. And so for the first few years the majority of people refused to actually give their name up to -- to put down on a list. And so we had a very short list of the Buyers' Club, until November 2000. Until that point it had been, like I say, you know, a couple dozen, you know, maybe a couple of hundred people that I all got to know, and they would present their medical information to me, and I would confirm that it was valid, and I would, you know, on that, you know, handshake agreement, start to provide cannabis products to them. When I hired people to sell the products for me, though, it became a lot more complex, because they didn't know everyone that I helped. And so we went through a process of reconfirming, you know, all of the current members, and starting a -- a membership list, essentially, you know, from scratch, from that point forward. So that would have been early in 2001 when we started to compile a list of members for the first time. And that list doesn't include, you know, probably a hundred or two hundred people that I had helped out in those initial days who for whatever reason just didn't come back. They could have died, or moved, or grown their own, or something. But certainly there were many people that I would have only met once or twice that never came back in those first few years, in part because my services were -- were so scant. You know, I had very little resources, so I didn't have, like, six kinds of pot for people to choose from. It was, like, you know, I got this outdoor and this half decent indoor kind of thing. It was kind of scant. But, you know, by March of 2001 we would have been about 400, I believe, in membership, and we were selling maybe $800 a day in -- in medicine when we first got the store. And that's the store on Johnson Street that you're currently in -Yes. -- even up to this day? During that time period while you're in the
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apartment on Johnson Street, where are you obtaining the cannabis? I'm not asking for names, but -Yeah. -- just generally. Generally speaking, I was relying upon what we refer to in the movement as middlemen. I hadn't met many growers directly, in part because I was so small that most growers of any substantial size wouldn't want to deal with me, because I was going through, you know, an ounce or two at a time. As I say, by the time I got this -- or moved into this store, I was doing $800 a day, which is about a quarter pound, so I was starting to get to the point where, you know, growers would actually deal directly with me. But for the most part I was entirely relying upon middlemen. But I would have, you know, one or two, you know, very reliable friends. In fact my first middleman was a friend that I went to school with back in Ontario, who I hooked up with when I lived in my van, which was very convenient. And everyone that I worked with knew I was selling it to people that had, you know, compromised immune systems and the like, so I -- I did my very best to make sure I worked with people that -- that were careful about that. And -- and, you know, organic and otherwise clean product, you know, was available; it just wasn't common. So I, you know, sought out those people that would meet the standards that we had. But certainly by March of -- of 2000 I -- I would have only had a small handful of growers. Although -March of 2000, or 2001? March 2001, sorry, you're correct. So at the time you're in the Johnson Street apartment, prior to March of 2001, are you also providing your members with products other than dried cannabis? Yeah. As I said, Leslie was there for the first few years, and then she dropped off, and we went a few months without having anything available. And then it got to the point where the members demanded that I make some cookies for them. They knew I had some leaf, and even if I didn't have a good baker, there was no excuses. They needed
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that medicine, and the smoking wasn't good enough. It was too expensive for people, it didn't provide the same benefits for -- for people, and they -- they were begging me to -- to do something about it. And so, as I say, I had, like, you know, a couple bags of leaf sitting around, and -- and didn't really have a good excuse not to have it available, just because Leslie wasn't there. So we started to make them. And, again, not having recipes or knowing very much, initially I'd bake them with the leaf in it. They were fairly infamous little pucks, actually, because they had a very, very strong cannabis taste to them, and they would also induce bowel movements. And so anyone that ate one of my cookies would be very cleansed the next day. And so it was something that wasn't acceptable to the majority of our members. Some people would eat the cookie and -- and it was potent and -- and helped them sleep, so they didn't care what it tasted like, and, you know, they may have had rough stomachs, for whatever reason, and it didn't bother them. But, you know, the majority of the members had it bother their stomach, and the taste was -- was very strong as well. And so that -- that didn't last for very long. We learned how to -- to strain the leaf out, and as soon as we did, it was quite obvious that people would prefer it, and my old pucks just wouldn't sell any more, and people were demanding this, you know, new improved product. And so that was really the first sort of experiment that we did with the members in terms of, you know, having something available and then trying something new and seeing, you know, whether -- whether it improved people's health. And it certainly was more effective and -- and more -- you know, the sales, you know, reflected in that. And so that -- that would have actually -- actually now that I think about it, that -- that occurred even, you know, right after I was arrested up at U-Vic in the cookie giveaway, because I -- I hired actually Kathleen, I mentioned her, she's member number 2, she actually
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worked for the bakery then. And then -- and it was while she was in there that she -- she did this because so many people were begging her to -- to do it that they didn't want my pucks any more. They wanted better medicine. And we've never gone back. And you mentioned a couple of arrests in late 2000 that you say brought you some publicity and notoriety. Were those arrests associated with your work at the Cannabis Buyers' Club of Canada, or some other reason? No. They were essentially, you know, at events organized by Hempology. You know, the 420 up at the university is -- is a weekly event. As I mentioned, it's the largest student club on campus, and they gather every week, every Wednesday afternoon at 4:20. And so that is a student activity. And the cookie giveaway, again, is -- is an event that the International Hempology 101 Society, you know, organized to raise awareness about the benefits of -- of cookies. But it wasn't, you know, officially organized at all by the -- the Buyers' Club, or Buyers' Club service. It was, you know, an act of civil disobedience in the public. And so the persons that would have been at those events at which you were arrested, not necessarily medical consumers? Not necessarily. The -- you mentioned an event in March of 2001 when you're still in the Johnson Street apartment. Mm-hmm. Can you tell His Lordship what happens in March of 2001? Okay. Well, a friend of mine was downstairs. He actually was working for me. He was the first guy that I hired, and then he decided to basically, you know, set up his own situation in the apartment downstairs, which wasn't very good. And shortly after doing that, the police obtained a warrant to arrest him. And so it was a Friday afternoon at four o'clock that the police came, and with a battering ram came into the building and arrested a number of people downstairs. But they didn't come upstairs to where we were. And we would have -- some members came quite scared and -- and concerned, but they would work their
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way through the police and everything downstairs and come upstairs to -- to our place, and -- and ask what was going on, and we -- we were okay. They didn't come up the stairs at all. And -- oh, I think actually they came to dispose of something. But when we'd been there for 20 minutes or so, I thought I'd better go find out what was happening, and I took a bag of garbage downstairs just under the guise of having a look, at which point Sergeant Darren Laur asked me to speak with him, and he informed me that they had been in fact, you know, watching me quite a bit, and had even apparently undercover officers across the street at Revenue Canada for -- for a year, watching us, and they had tried to get a warrant, apparently, for both apartments on that day, but the justice of the peace wasn't willing to -- to grant them a warrant, because we were a medical establishment, and we required medical information from everyone that came, and the police weren't able to convince them that we should be arrested that day. So Darren was quite surprised, and -- and concerned, and quite adamant that we were no longer going to operate out of that apartment building any more, despite the fact that they couldn't get a warrant. He seemed to think that -- that we should be forced to move elsewhere. But moreover, he actually told us to get a store, just like the other club. Because at the time the Vancouver Island Compassion Society had just moved from their first location in Oak Bay to downtown Victoria, and -- and it was known publicly that they had their -- their store downtown. And the police thought that it was better for me to be in -- in a store, given the amount of individuals that were coming and going from my place. So I agreed, and -- that we would stop operating out of that building, and that we would find a better location. And so we -- we obviously stopped that Friday, and then Saturday we did deliveries. On the Mon -- or Sunday we didn't operate. Monday, we again did deliveries, and at that time I was able to make arrangements to move into our current facility at 826 Johnson Street. And so on the
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Tuesday we got the keys, and were open that day for business. It was quite something, because we didn't even have hydro, and I had two folding chairs, and a little coffee tray, and a candle for a light in the back room, and -- and that was about it. It was quite rude and crude, but we moved in. And also my landlord, for whatever reason, wanted a business out front. He didn't want a cannabis club moving into a store. We're in a building that has a glass shop right beside it, there's offices above us, and storage above that, even. So the owner -- and rightly so, I think, for the other tenants as much as anyone, you know, wanted a store that was discreet and looked like any other store on Johnson Street. And so rightly or wrongly I incorporated Ted's Books, and opened up a bookstore selling some art and other products out of the store. And that continued, actually, for about a year. But, yeah, that -- that was our impetus for moving into the store, and it was actually April Fool's Day in 2001 that was sort of our official opening of Ted's Books and the bookstore. And the bookstore is in the same location as the Cannabis Buyers' Club of Canada? Yes, it is. At that time? Yeah. And is Ted's bookstore still operating? No, it's not. It operated for, sorry, about a year, and it was actually after the second police raid that we took the -- the name Ted's Books down, and then we actually applied for a business licence from the City after that, and were turned down, but two city councillors did vote in support of that application for -- for a business licence. And is this a business licence for the -- for the bookstore or a business licence for the Cannabis Buyers' Club? This was a business licence for the bookstore itself. So selling, you know, magazines and books and -- and art, and pipes, and such like that, to the general public. And so the police argued, and this -- you know, council agreed that there was no real need for me to sell these other products, that
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essentially, you know, they were turning a blind eye to the operations of the Cannabis Buyers' Club, and that providing a licence to do business to the general public was unnecessary, and they didn't grant it. Q So you testified that on or about the 1st of April 2001 you began operating the Cannabis Buyers' Club of Canada out of 826 Johnson Street. A Mm-hmm. Q Is there, subsequent to that, any police activity at that location? A There certainly has been. There's been many informal interactions between myself and police officers that are not documented, just walking up and down the street. They visited our club on occasions. The first real documented incident occurred January 3rd in 2002. I'd mentioned the incident earlier, where I had taken a membership away from an individual who I personally had seen giving his cannabis to another, and so he came -THE COURT: Was this before January 3rd, '02? A Yeah. It was January 1st, actually. It was the first thing I did New Year's Day. I don't even think it was noon yet. In fact I won't open before noon on New Year's Day again. So, yeah, it was like the first thing I did on -- on New Year's was take this gentleman's -- gentleman? -- individual's membership away. And two days later he came back to the Club. At first he was actually trying to get his membership back again, and when I told him that he wasn't going to get his membership, he refused to leave the store and started to cause a scene in the store. So I actually called the police first. And at that point he left, and the police came to the Club, and I told them what was happening, that this individual was causing us problems and -- and being threatening. And the police actually left to go look for him, at which point we -- we sort of relaxed. And there was a lot of people in the store, and I didn't see what was all happening. And when this man brought a police officer into the door, the first thing he seemed to see was somebody that was rolling a joint in a corner in the front lobby, which would have been one of the very few times in -- in the store we've ever allowed that. We
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really try not to -- to have a visible presence of cannabis that you can see easily from the street. And so Ryan O'Neill is the officer that, you know, came in, and -- and right away he's, like, "Oh, I see that you do have cannabis." And this other man was going, "Yeah, there's cannabis everywhere in the store. Shut him down." And -MR. TOUSAW: Q By "this man", you mean the individual whose membership you had taken away? A The ex-member. Q Okay. A Yes. So the ex-member is -- is, you know, making a scene about, you know, cannabis being all throughout the store. And then he slipped out, which is why I don't even know his name any more. But, yeah, because there's -- anyway. So he left Ryan O'Neill standing in the store, this police officer, Constable O'Neill, and so Constable O'Neill called up the Victoria Police Department to ask for directions, and they weren't sure what to do, because they had known that we had moved to the store, but they didn't know what to do about the situation. Q This was the first time police had attended at the 826 Johnson location in a formal capacity? A In any kind of complaint situation, yes. And so, yeah, they -- he called for backup. He was by himself, at first. He realized how bad of a position he was in, because he didn't have any backup. He hadn't even, before he entered the store, told them where he was going. And so we did a -- a quick review of the store, and I showed him where everything was. And he and the police department didn't want to actually proceed with charges right away, and so we agreed to allow a -- or that a search and seizure would occur, but that charges wouldn't be pressed against me. And so then we talked about how the Club worked, and -- and that, you know, we didn't have a lot of records, but we do have a membership list, you know, and a file of information; when people bring in their medical information we'll often take a copy and leave it there. And so the two critical, you know, pieces of information were our membership list and this file
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of documents. And we only had one copy of the membership list, so it was clear that they needed that for evidence, but it was also clear that we couldn't really operate without it, and the police didn't want to really interfere in -- for at least a long time, in what we were doing. MR. ECCLES: My Lord, I'm finally going to rise just to place the Crown's concerns on the record. Mr. Smith has been giving a great deal of hearsay evidence. I trust my friend is alive to that. I'm not sure exactly why he's tendering large volumes of hearsay evidence, and perhaps it will become clear in due course. Mr. Smith is not testifying as an expert. He's not in a position to, in my respectful submission, give hearsay for the truth of it. So when he's ascribing motives to police officers and the like, I'm -THE COURT: Not so much hearsay as his interpretation of the actions of others, or his inferences drawn from things that have happened. And I will say, I'm filtering most of that out. MR. TOUSAW: Fair, Your Honour. I don't mean to put in the hearsay for the truth of the matter, but rather to give the impetus for Mr. Smith's actions subsequent to these events, as well as to provide some context to the overall case. This is sort of social fact evidence the Supreme Court has referred to as appropriate in -- in cases of this nature. But I -- I hear my friend's objection, and I certainly would caution the witness not to place words in the mouth of the police officer. A Okay. Well, as it were, the police didn't press charges, for whatever reason, say, but they did agree that the membership list was important to us, so much so that I was actually able to attend with Constable O'Neill back to the Victoria police station, where I was allowed to make a copy of our membership list so that we could go back to work that afternoon without interruption or forcing everyone to come back with their medical information. And that was why the Club operated continuously through that. The charges were actually sent in the mail about a month later. Q So ultimately someone is charged with an offence arising out of this incident on the 3rd of January?
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Yes. Actually myself and Colby Budda. And Mr. Budda is an employee of the CBC of C? Yeah. He was behind the scales in the distribution room when the police officer attended. Q And without making legal argument, is that case resolved in the courts in some manner? A Yes, it certainly is. We both received an acquittal from Justice Chaperon. And that was in September of 2004, and it was not appealed. MR. TOUSAW: And, My Lord, we'll be providing a copy of that decision as part of our authorities in this matter. Q The Club itself continues to operate throughout this period of time, is that correct? A Yes, it does. Although there were more raids to come. Q Yes. Perhaps you can take us -- and I assume the membership continues to grow at the pace that you're describing, since -A No, no. It changed around the -- after the first arrest, it was about two new members a day coming in, from the time that we got the store until that January, and -- and then -- well, then actually that, you know, first sort of raid, you know, continued to bring in new members. It was the second police raid in March 2002 that slowed down both the number of new members and scared off a number of existing members as well. Q Okay. So there is -A So we kind of actually shrank a little bit. Q There's the police contact in January of 2002, which leads to charges being filed in the Provincial Court of Vancouver, correct? A Mm-hmm. Q And then you've now mentioned a second attendance of police. Is this at the 826 Johnson Street location? A Yes. The raid in March of 2002. Q And what occurs on that date? A On -- on that day police attended with a warrant. Apparently the day before they had arrested one of our members who admitted that he was selling his cannabis so he could support his other drug habits, and the police used that as justification to get a warrant -THE COURT: You're telling me --
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A Oh. THE COURT: -- what was in an information to obtain, or what was told to you by the police. I don't mind it as background, but it's not admissible evidence. A Okay. MR. TOUSAW: Q Perhaps just confine yourself to the activities on that -A Okay. Q -- particular day in March. A Well, they -- they -- they walked in with a warrant. Q Police attend at the location. A They came just for me that time. They didn't arrest anybody else. I was the sole target of that arrest, and was detained in jail for the evening, and I was let out on a thousand dollars bail the next day. And part of the conditions of my release were that I would be allowed to be in the store, so long as I didn't have anything to do with the actual sale of cannabis. And it was at that point that -- when I got out of jail for that that we decided to take Ted's Books down, and no longer allow the public into the store, and have it run solely for the purposes of the Buyers' Club. Q And you are ultimately charged arising out of that arrest? A I was charged with possession for the purpose of trafficking cannabis and PPT for cannabis resin. Q And without getting into the legal analysis, but is there a resolution to those charges at some point? A Yes, there is. When we went to court, the charge of trafficking cannabis was dropped immediately, and the Crown proceeded to convict me for trafficking cannabis resin for the food and the skin products. And so I was not happy with my lawyer or the decision, and decided that I would appeal myself, and I filed a factum, and upon reviewing the factum the Department of Justice -- and we have documentation to affirm this -- the Department of Justice conceded that at least -- because they didn't provide the analyst, that I should at least be given a new trial, and that it wasn't in the best interest of the public
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to proceed with that trial, and that they would just drop the matter entirely. And -- well, I was just going to say, when I got in front of the Court of Appeal, I asked if we could still proceed, because the idea that, you know, the cannabis resin charge would still apply to the food and skin products was of great concern to me. But the Court of Appeal said that without the Crown willing to defend its position that there was no way that we could proceed with the hearing. And I anticipated that we would end up back before the courts again on the very same matter. Q And so this is -- these are all proceedings that arise from an execution of the search warrant in March 2002. Are there subsequent interactions between you and the Cannabis Buyers' Club of Canada and the police? A More between the Club and the police. The next raid occurred in June of 2002, where my friend Colby Budda was arrested. THE COURT: Was he working there? A He was, sir. He was -- he was in there the day before, when police came -- actually one of our members had assaulted someone up the street, and they came looking for her, and Colby identified himself as the manager, and -- and he found the woman they were looking for. And because he identified himself as the manager, that was who they had on the warrant the next day. And I don't believe it was much more than -- than smell and some other inferences that they used to obtain the warrant, but nevertheless that issue has been resolved, and the charges were actually thrown out due -- due to the Crown not proving that Colby had knowledge and control. MR. TOUSAW: Q So your understanding is that Mr. Budda was acquitted of those charges arising in -- out of a search in June 2002? A Yes, he was. And the final raid was in February of 2003. The police had at the time a drug squad that had sought out the people that were openly selling cocaine and heroin in the downtown core, and apparently when they decided to go after people selling cannabis, we were the first on their list. And so they set up surveillance out
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front of our store. And I -- I think the only evidence they had physically was from someone they had arrested just leaving the store; they arrested him a block away and found a gram of cannabis on him, and that was sufficient to get a warrant, and they arrested my friends Scott Johnson and Ryan Fink. And were they employees of the CBC of C? They were. But again, the Crown was unable to prove knowledge and control, and the charges were dropped. Were they acquitted, or -They were acquitted, yeah. Subsequent to these interactions with police that you've described culminating with an execution of the warrant February 2003, have there been other warrants executed at the 826 Johnson Street location up to and including the present day? No. There have been no warrants issued, or no other arrests made with myself or the staff at the Buyers' Club, the only exception being this case here. And throughout this span of time that the CBC of C is at 826 Johnson Street, is it continuing to sell cannabis to its memberships? Since our official opening on April Fool's Day 2001, we have been open and selling cannabis products every single day, even the days of the raid or getting out of jail. We haven't gone a single day where our members went without getting access to our services. And that includes every Christmas and New Year's Day; we are open through those days as well. Can you describe for His Lordship the growth of the membership from the early days at the 826 Johnson Street location through and including the present day? Okay. Well, certainly, as I said, when I began and I lived in my van, it was very slow going, and I would meet, you know, a handful of people a month. The majority of them wouldn't, you know, require our services very often. The majority of them, for whatever reasons, would meet me and -- and -- and qualify, and then I wouldn't see them again. It would have grown, you know, from one -- one or two hundred in those early years to
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approximately 400, when I first got the store. It grew at a rate of two people a day for about a year from that point forward, so we went from 400 to 1,200 within a year there. It was quite a burst for us, and quite a growth. And then after the second raid it really did slow down quite a bit, and it probably, you know, would be more at a rate of about, you know, 200 a year for a couple of years there, until 2004, when we received our acquittal and had some very favourable media on our court case as well, at which point it would have picked back up again, to the point where we were adding 20 to 25 members a month for several years, until a couple of years ago. And I don't know if it was associated with the bakery raid or not, but around that time membership numbers grew even more, to the point where we were adding easily 35 to 40 new members a month, which is 450 to 500 new people a year. So back in -- in, you know, like, March 2001 we would have had that 1,200. Say by 2004 that might have grown to 2,000, and then -- gee, never really done the numbers out on a chart, but, you know, it would have grown incrementally, you know, 200 to 300 a year for several years, and then the last little while there -- there's been a bit of a burst. And of course I take it that sometimes members leave and are no longer members of the Club, sometimes members pass away, and of course they're no longer members of the Club. It's not just constant growth, but there's an ebb and flow of people that are attending at the Club? Oh, very much so. In fact the growth of the membership and sales aren't exactly parallel to each other. You know, for example the last few years we have had a lot of members die. I've probably known about two dozen people that have passed in the last year, some very close friends. So dealing with that is inevitable. You know, I sort of thought when I first joined that I was going to help everybody die that I met. In fact I only think now I'm starting to meet members of the Club that might outlive me, I hope. But certainly, you know, helping people as they're dying was what we -- we began to do. So that's -- that's a constant, so we're probably
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losing a couple hundred members a year to that, at this point. People move. The other thing that's actually taken sales away from us is the current Health Canada program, where we give everyone that joins forms to go and grow their own pot, or find someone to grow it for them. And so we've had a lot of people that have come and -- and joined our club and gotten the forms, learned how important it was for them, figured out they can't afford as much as they need, and the only way that they can actually get as much herb as they -- they need is to grow their own, and then they go get a licence. You know, that's been fairly common, in fact. You know, especially people that -- that need high volumes of it that, you know, to -- so, yeah. So the growth of the membership numbers hasn't exactly, you know, met up in -- in sales, to be sure. Our sales have actually been fairly steady for the last few years, though the membership keeps growing in size. TOUSAW: My Lord, I note the time. I think that's an opportune -COURT: Yes. TOUSAW: -- moment to take the break. COURT: Ten o'clock tomorrow morning. TOUSAW: Thank you, My Lord. CLERK: Order in court. (WITNESS STOOD DOWN) (PROCEEDINGS ADJOURNED TO JANUARY 17, 2012, AT 10 A.M.)
Transcriber: R. Greenaway
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Victoria, B.C. January 17, 2012 THE CLERK: In the Supreme Court of British Columbia. Tuesday, January the 17th, 2012. Calling the matter of Her Majesty the Queen against Owen Edward Smith, My Lord. MR. ECCLES: My Lord, I've had a -- sorry, for the record, Peter Eccles, E-c-c-l-e-s, appearing for the Federal Crown, and with me is Ms. Guest of my office, who is my co-counsel in this matter. MR. TOUSAW: My Lord, Tousaw, T-o-u-s-a-w, first initial K., for Mr. Smith. THE COURT: All right. Thank you. MR. TOUSAW: Who is again present in the back of the courtroom. MR. ECCLES: Thank you, My Lord. I've had a brief discussion with my friend this morning, and out of an abundance of caution wanted to clarify the Crown's view of where we are in this matter. Yesterday the Crown called Constable Brewster to tender evidence of the scene of the events in supplement to the admissions that have been filed. And I have a clean copy now with the appropriate changes made to it, that my friend has signed, as have I. And after -THE COURT: It should probably be marked as 1-A, just so that we've got both versions. MR. ECCLES: Yes, My Lord. Thank you. MR. TOUSAW: Agreed, My Lord. EXHIBIT 1-A (on voir dire #1): Amended Admissions filed January 17, 2012 MR. ECCLES: At the conclusion of Constable Brewster's evidence, the Crown confirmed we were calling no further evidence on the voir dire. That was an error on my part, because, as I had indicated to Your Lordship, or thought I had, and perhaps I didn't clearly enough, Constable Brewster is the Crown's witness in relation to the fact of the offence. We will not be calling further evidence regarding the fact of the actual offence, but we do anticipate calling evidence in reply to my friend's application. Ordinarily, according to our Court of Appeal in Wilson on a voir dire when the burden lies on
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the defence, they must call the witness. This is a Constitutional Questions Act application. It doesn't fall squarely within the Wilson criteria, in my respectful submission. Wilson, the issue that arose was the Crown calling an affiant who was being produced for cross-examination, and then leading him through the material that he filed, and in the process amplifying, not in reply to cross but in direct, and that was what the Court of Appeal said is inappropriate. They were not, in my respectful submission, commenting on a Constitutional Questions Act application, where we have a mix of legislative and adjudicative fact to be established, and that's the distinction drawn on these sorts of matters, as my friend indicated yesterday. Accordingly, it's the Crown's position that while we will not be calling additional factual evidence of the offence, we do, and my friend is aware we do, anticipate tendering evidence in reply to those witnesses my friend calls, and the issues as ultimately defined by my friend after his expert, Dr. David Pate, concludes his evidence. We received Dr. Pate's CV about, I think three weeks ago, and his report one week today, ago. It came in on a Tuesday. We -- I think it was -MR. TOUSAW: I believe I provided it ten days in advance of trial, as I indicated I would do at the pre-trial hearing in this matter, My Lord. MR. ECCLES: That may well have been, but for some reason I don't think I received it until either Monday or Tuesday. But in any event, the difficulty of course is in a case of this sort, with the issues that are joined, ten days in advance of trial may comply with the rules; it doesn't necessarily comply with the practical realities of allowing the respondent to gather evidence to meet the case being presented, particularly when one is not in a position to know what the case is until ten days before it's presented. And even then, there is always, with viva voce evidence from an expert, the possibility of expansion of the opinion or shifting of the nature of the issues that will require the Crown to consider its position in
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reply. We, on the Crown, are attempting to complete the assembly of materials in reply to what we anticipate will be the respondent's case. That's a matter my friend and I are discussing on an ongoing basis. We're hopeful that we can reach an accord that will significantly shorten events. One expert witness at the very least we hope to simply file his report, and a tran -- a disk with the transcripts of his cross-examination before, I believe it was Madam Justice Koenigsberg, in Beren and Swallow. Mr. Justice Edwards passed away mid point in the trial. But Dr. Kalant was cross-examined for three days, I believe, or led in chief and cross-examined for some three days. So all the issues in his report were canvassed. I am also discussing with my friend the possibility of filing other materials from Beren and Swallow, including transcripts, and updated materials from the Mernagh case in Ontario, where data regarding the number of individuals who have applied for and received MMAR licences was tendered. The bulk of that data is available on a website. The most recent data has apparently not been entered on Health Canada's website as yet. That's where the affidavit takes an additional step. But it's what I -- it's basically numbers. It's not an opinion. It's just, I work -- the affiant says, I work at Health Canada, I work with the MMAR program, this is how we keep data, and this is what the data is. My friend has indicated if the Crown intends to tender that data, he will require someone to answer additional questions in the matter. That's what the Crown's endeavoring to find, because the affiant in the Mernagh case has now moved onto another job and can't access the computer or do any of that sort of work, and wouldn't be in a position to assist my friend. We're trying to find someone who can, and if necessary we'll fly them out. The gist of all this is that the Crown's position is we have not closed our entire case on the voir dire, and we have not begun our reply, or tendered any evidence that would be the respondent's case on the voir dire. We've produced Constable Brewster to assist my friend,
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and I led Constable Brewster through his evidence to expedite the matter, because I have the opportunity to discuss it with Constable Brewster and move quickly through the evidence and get him in and out. But I wasn't planning or anticipating that there would be any issue with the Crown's ability to respond, and I just wanted to put that squarely before Your Lordship, should there be any such issue. I don't believe my friend takes issue -COURT: When am I going to know whose case is closed? I suppose -- you know, counsel seem to be handling this quite admirably without me, but I always worry a bit that at some stage you may fall apart in your ability to get along so well, and somebody will require me to make a ruling. And I'm just curious as to who's got the burden of proof, whose case is -- we're now in Mr. Tousaw's case, or Mr. Smith's case, on this voir dire. I gather you're now saying that when the defence case on the voir dire closes, the Crown will have some evidence. I'm not quarrelling with its right to lead that evidence. Apparently Mr. Tousaw agrees you have a right to lead evidence in reply to his case. And so do I treat it as this is a defence application, defence has a burden of proving what it needs to prove, Crown will have the ability to lead evidence to rebut the defence evidence, and any reply right then falls to Mr. Tousaw? ECCLES: That is my understanding, My Lord. This is my friend's application to seek constitutional relief. It is a Charter application, s. 7 of the Charter being engaged. I'm not aware of any other sections engaged on this voir dire. I don't think we have a s. 35 application, or anything of the sort. It's a pure s. 7 matter. The burden lies on the applicant, my friend, to establish the breach. COURT: All right. So it's -- the constitutional issue is one raised under the Charter. TOUSAW: That's correct, My Lord. As well we're seeking relief by way of an application for judicial stay of proceedings. COURT: Right. TOUSAW: But in either instance, it's my position that --
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COURT: You've got the Charter burden. TOUSAW: We have the burden. COURT: Balance of probabilities. TOUSAW: Absolutely. COURT: And Crown has the right to reply. TOUSAW: Absolutely. COURT: Or to at least lead evidence in defence of your application. TOUSAW: Absolutely. And I agree with my friend that his case was not closed by virtue of calling Constable Brewster. That was to assist in setting the scene for Your Lordship, and certainly he does have the right to call additional witnesses. It will be Mr. Smith's position, however, that to the extent that my friend wishes to tender affidavits from either experts or representatives of Health Canada, whether or not those affidavits appeared in prior litigation, that Mr. Smith has the right to cross-examine those affiants, and to test -COURT: And the right to waive the need to cross-examine, if you don't challenge the contents. TOUSAW: Certainly. COURT: And you won't know that until you see them. TOUSAW: Absolutely correct. COURT: All right. No, I know where I stand. ECCLES: Thank you, My Lord. And that was the only matter we wished to address you on prior to resuming the evidence. TOUSAW: If there's nothing further, then, from Your Lordship, I'd ask that Mr. Ted Smith be recalled. COURT: Yes. CLERK: Mr. Smith, you are reminded that you are still under oath. WITNESS: Thank you. LEON EDWARD SMITH a witness called for the Accused, affirmed.
EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: Q Mr. Smith, when we broke yesterday, you had described for His Lordship events arising at the Cannabis Buyers' Club of Canada involving police
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contact in 2002 and 2003, and then in terms of executions of search warrants or other police enforcement activity at the 826 Johnson Street location, you'd indicated that there had been no further such contact through and including -- or at least up until the 3rd of December 2009, and with respect to Johnson Street, none up until yesterday. I'm going to ask you, have you had, at the CBC of C, other incidents involving members and police contact or police reporting in connection with the products sold at the CBC of C? Well, as -- as I mentioned, since I've gotten the store we've had interactions with the police, for a number of different reasons. There haven't been, though, as you said, any arrests or any situations where the police have been looking to charge anyone, of the Buyers' Club. It's been a really wide range of issues that have brought the police to our door. One evening, for example, we were having break-ins for a while, and they were coming in the front door, so I decided to spend the night in the store with Gayle. And we were lying in a place where the thief couldn't see, and -- and was -- was breaking in the door, and we called the police, and they arrested him in the doorway, and he was convicted of attempted break-in, and spent three months in jail. We weren't required to testify in that case because he pled guilty, but we were in full cooperation with the authorities on that particular incident. I've had maybe four or five phone calls from police officers on Vancouver Island where they have caught one of our members in possession of cannabis, and were unsure on how to proceed. Whether the person had a medical necessity was really what they wanted to know, the mandate of our club, and what it meant to have one of our cards. And my understanding is that in most of those cases they didn't proceed with charges. Let me stop you there, Mr. Smith, and just ask you, when you say, "One of our cards," what do you mean by that? When someone joins our club, I -- I didn't mention in the sign up, but, yeah, we give them a small green membership card with their number and -- and name on it, and date, and the person that signed
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them up. Are you familiar with an individual by the name of James Dure? Oh, that would be another incident that actually occurred previous to any of the police raids on the store. And it was a situation that when I was operating out of the apartment, and -- and got the store, we would occasionally sell what is known as hash oil, which is a product made using various kinds of solvents. Could be isopropanol. I've not really made it myself. I've witnessed it, and am really not keen to be in the presence of it, because the smell is -- is quite noxious, and it's not enjoyable at all to be near. It stinks quite a bit. And so it was something, though, that I did take in from other people that I trusted, and James bought some of this hash oil off of us, and told me that he kept it in his freezer for a month, which made it impossible for me to determine which source of hash oil it was, and then he told me that he took it out and tried to smoke it, and it didn't make him feel very good. So for whatever reason his response was to try and smoke more, which made him feel worse, which made him want to smoke more, until he ended up into the hospital. And it was gone. He didn't even leave any to submit to the police, or to show me to -- so I could figure out where it had come from. But he ended up in the hospital and was telling the police and the nurses why he thought he ended up in the hospital, that it was our bad product, and wanted the police to shut us down. I never talked to the police directly with this incident. I did talk to a senior nurse in the Capital Health Region, and I discussed with her what we were doing at the Club, what our intent was. And in that discussion it was made clear to me that producing products outside of our own kitchen, for one, and -- and secondly, producing products using solvents was not only difficult and -- and potentially dangerous, not in the actual product but in -- in some cases people make it in ways where the flame and solvent could possibly make contact, which is potentially explosive, and you occasionally hear of these
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horror stories where people are trying to make their own medicine, and they -- they hurt themselves and harm themselves quite a bit. And so because of the problems with the smell, with, you know, other potential issues with equipment, we agreed on the phone that our club would never again provide any solvent-based products, until such time as we had a licence and an exemption and a facility that was properly ventilated, and the equipment [sic] could be, you know, made in a safe way. And from that point forward we have not sold any hash oils, and now for several years have not sold any hash products as well that contain any even water extracts. We -- we just use the kief, which is the crystal on the plant that is dried and broken off and put through a screen. And so in the making of kief there's no alteration of the plant material, there's no solvents, there's no extracts, there's nothing but the actual plant material itself, and the crystals, you know, that -- in that. So we consider that to be a very safe product. And, so, yeah, that incident with James Dure was quite disturbing, quite distressing. We've never before, and I don't think since, you know, really put anyone in the hospital for -- for any of our products, and I'm not sure myself if it was -- was our product that did it. I've had other experiences with James Dure that have made me question his ability to discern reality from images and ideas. So I really am not sure about, you know, whether it was in fact our product that -- that made him ill, or the pipe that he was using. But nevertheless, we -- we've changed our policies as a result of that. And what was the time-frame, approximately, of the incident involving Mr. Dure? Oh, sorry, that was in the summer of 2001, the first summer I -- I had the store. And since that time the Cannabis Buyers' Club of Canada has not provided any of its members with chemical solvent extracts of cannabis, correct? Correct. For purposes of clarification, the term "hash oil", when you use it, is a reference to these chemical solvent extracts, not oil, food grade
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cooking oil that's been infused with cannabis through sort of immersion of the material in the oil; is that accurate? That is -- is very accurate. All the products that we make now are made with items that are in anyone's kitchen that cooks in their own home. You know, olive oils, butters, grape seed oils. You know, we use a double boiler, and -- and an oven. The -- the equipment and basic food materials are all very, very common and -- and very healthy. There are no, you know, solvents or extracts, aside from -- from those sort of vegetable oils and butters that are used, at all. And that includes our smoking products as well. With respect to the, what I'll call the history of the bakery, the establishment that provided edible and topical products for sale to the members of the Cannabis Buyers' Club of Canada, when -- when did you -- when did that see its beginnings? Okay. Well, yesterday I talked about how, you know, I started with Leslie, and then I worked out of the apartment building, and when we got the store in 2001 the bakery continued to operate out of the apartment while the store was open up the street. And that was a very convenient relationship, until the building we lived in was renovated into a condo and we were forced to move. And that was a very difficult situation for us, because we needed to find a place that was fairly close to the store to have it manageable at all. It's -- the further away from the store it's been, the more difficult it's been to coordinate between products and -- and different information and -- and such. And so we did everything we could to find an apartment as close to -- to the store as possible. Let me stop you there and ask you, what's the time-frame that this is occurring? Oh. Five and a half years ago, which is the summer of 2006. Okay. Yeah. So the summer of 2006 we -- we moved to a place on Pandora. That didn't work out very well at all. Despite our attempts to keep the smell down, we had complaints very quickly, and we were lucky not to get raided there, actually. The manager essentially told us to leave. And we were
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quite lucky to -- to find another apartment just around the corner from there, and it was not a very nice place at all, in some ways, but we were able to -- to secure an apartment and work from there. Again, though, very soon we got complaints, and so one of the first things that we did was take the infusion process out of the apartment, and we set up an area in the back of the Buyers' Club to do the infusing and -- and what's called decarboxylizing. Let me stop you and just ask you very summarily, what do you mean when you say the infusion process and decarboxylization? Okay. Well, the first thing that we do after we grind up the leaf is we put it in an oven for half an hour at 300 degrees. And what that does, based on -- on the studies that we've done, and working with researchers like Dr. Paul Hornby, we've learned that -ECCLES: My Lord, I'm just going to rise to remind my friend and make clear that Mr. Smith is about to embark upon opinion evidence. He is not qualified, or has not -- my friend hasn't sought to qualify him to render opinion evidence. This may be part of the narrative, but the Crown is not conceding that Mr. Smith is an appropriate witness to start describing what I've read, what I've studied, how the decarboni -- whatever. TOUSAW: Decarboxylization. ECCLES: Decarboxylization process works. He can describe what we do, but the chemistry involved is beyond the scope of a lay witness, in my respectful submission. And I have a sort of a standing -COURT: But he can tell me what he does and he can tell me why he does it, according to his understanding, without getting into whether or not what he believes is going on is actually happening. ECCLES: Yes, My Lord. And so when he starts citing, "And based on my reading," that's where the Crown has some issues. We don't particularly want to have to start finding an expert. COURT: Well, I won't take it as evidence that when he reads the recipe book that the chemical processes described in a recipe book are actually
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occurring, but if he's following somebody's recipe or instructions that are written down, what's the harm in hearing that's why he's doing what he's doing? ECCLES: Yes, My Lord. Subject to the Crown is not conceding -COURT: Well, I understand that. ECCLES: -- that what he's doing is indeed scientifically sound. COURT: Or safe. ECCLES: Or safe, yes. COURT: I agree. TOUSAW: You can continue. So my understanding is that in the raw plant itself, the active chemicals in the cannabis plant haven't been triggered, and that the heating of it decarboxylizes the cannabinoid acids and turns them into the cannabinoids. And so that is why we understand simply eating the plant itself doesn't have as strong of an effect as when it's cooked into the oven. And we not only learned through reading; we actually experimented with the members to see if in fact these changes in -- in how we made our products improved them. Because not everyone that -- that bought our products understood that -- that we had made a change and improved them. And we tried to tell them. It's like, we did something different, see if you like it, and the feedback was -- was quite positive. In fact Dr. Hornby was coming, and -- and teaches the chemistry lesson for Hempology 101 at the University of Victoria every year, so he comes here and we get to talk with him, and -- and, you know, learn, and -- and adjust. And so we've actually changed the time period and temperature a few times to get to the point where we're quite happy with the effects people have by, again, cooking it at 300 for half an hour. So the problem with that process is the smell, because one thing that I understand occurs is the essential oils get burnt off the plant somewhat, and the smell, especially if it's not contained well -- because we try to put it in a glass container, but the smell is quite strong, and that was what led us to being -- or getting in
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trouble again in -- in the -- you know, in 2006 in the new apartment we moved into. Just taking that process out diminished the smell enough that, you know, we weren't under threat of being, you know, evicted any more, or -- or raided. We were, you know, stinking the hall up like cookies all the time, and if one knew what they were, you could pick up the smell that they were in fact green, but the -- the stench of the -- or aroma of -- of the cannabis cooking in the oven wasn't filling up the entire building. And our store already had that smell, so it just kind of aggravated an existing situation that was being tolerated. And so you take that, I'll call it the pre-baking cooking process of the raw plant material to the store, and you also mentioned -- let me pause and say, 300 degrees Fahrenheit? Yeah. Yeah. You -- you also take what you referred to as an infusion process into the store. Mm-hmm. Very briefly, what's that process? Well, the infusion process is essentially a double boiler. We've got a great big double boiler, like a soup double boiler, and we put the cannabis in with butter or olive oil or grape seed oil, and cook it in the double boiler for several hours. It depends on how quickly it's put in there, but anywhere from five to seven hours it's likely sitting in the double boiler, just brewing away. You know, hence why, you know, this would again, you know, stink as well if it was in a -- in a home. And so at the end of that we would take it, and in the past we would use a sieve or -- and cheese cloth, and we would pour the material into the cheese cloth and squeeze out as much of the butter or oil as possible. And that process, though, actually with the cheese cloth started to become somewhat difficult in different ways, and cheese cloth is expensive, and honestly, I -- I really try and minimize the Club's environmental impact as much as possible as well, and it became clear that we could simply use a metal calendar, I think is it, or col -Colander, or sieve? Col -- yeah, a sieve. And so now we simply have
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this, you know, metal screen, and we pour the leaf material into it, and -- and crush it out with a rock and try and squeeze out as much as we can, and that seems to be the most efficient way to -- to get as much of the -- the butter and oil out as possible so that there's as little left in the leaf material as -- as can be. And so I take it you retain the now infused oil or butter or grape seed oil or olive oil, you retain that for your baking processes, and you discard the now spent leaf material, is that right? We put it in peanut butter jars, like the butter or oil, as you saw in the exhibits. We go through a lot of peanut butter -- we have peanut butter cookies -- so the jars are very excellent for that. And we save some of the leaf material, though, because one of the products that we make is called Cannapatch, which is much like a poultice, where one would put it over top of the area that -- that they're dealing with their symptoms, and it would essentially saturate the effected area with the different cannabinoids and essential oils and such. And it has, yeah, a -- well, you know, probably describe it again in a bit, but the Cannapatches are excellent for the people that have the ability to put them on. But we really only save a per -- you know, a small percentage of the leaf material. Most of it gets composted. Okay. And so in 2006/2007 you describe having these -- the bakery's moving to a couple different apartments. You're having issues. Mm-hmm. What happens next with the bakery? Well, it was in my home still. As I said, it was my apartment, my home. And at the time -- well, I guess in 2006 Gayle and I had -- had just gotten together, so she moved in with me with a bunch of her stuff, and the -- the kitchen was, and is, incredibly cluttered with -- with things, and we wanted to move into -- or have the bakery move into its own location so that we could have our own kitchen, so that we could cook and -- and clean ourselves without this -- this bakery constantly in our own home. And we thought that it would be a way that we could improve the product line, because the kitchen space was so
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small. The old apartment building was even smaller, so we've always been limited in the product line that we've offered just simply because we only have so much room for the things that we're selling, or the little bottles or, you know, the other herbs and stuff, or food products that we've added in. And so we wanted to move to an apartment because, you know, there was a number of mostly skin products that we wanted to add onto the menu, and -- and it seemed to be a situation as well that despite the fact that we took the infusions out, it just seemed a matter of time before we got raided in that apartment building. Luckily that didn't happen, but we had a number of, you know, just scary signs. There's a lady living down the hall that seemed quite upset about our activities. So we felt we -- we had to -- to move, and we just didn't have it in us to move our -- our entire lives again and find a new place, especially given how hard it was to find a place in the -- in the downtown that we would be happy with. And -- and so we did everything we could to seek out a commercial space. But we really didn't have the resources at the time, either. The police raids and other incidents put me in debt about $80,000 for a time being. I've crawled out of that now, but I really didn't have a lot of money to -- to spend on a really nice place. I ended up buying -- or renting, you know, one of the -- the cheapest apartments in town, and -- in the Chelsea. We just couldn't find another place. We looked for months and months. And so this is -- when you say the Chelsea, you mean the Chelsea apartments that were the site of the police -The police raid. -- execution of the search warrant on the 3rd of December 2009? Yeah. When did you commence the lease at that location, at the Chelsea apartments location? You know, I didn't look up my records, and I -- you know, like, honestly I don't keep a lot of records of all these things. I'm -- I'm incredibly busy and -- and swamped, so -Oh, okay.
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I would think it was in -- in the summer of 2007, or -- or the fall of 2007. And the bakery essentially operates at that Chelsea location from summer/fall 2007 through 3rd of December 2009? It was about two years, yeah. And one of the other factors that just explains some of the -- the clutter that was kind of crazy, was just before the -- the raid someone gave me 2,000 unassembled board games. And so the bulk of the clutter in there and what the officer described as boxes for the cookies, that was in fact the bottom of this board game, and the hundreds of boxes that were in there were actually this unassembled game, and -- and so the apartment became much more cluttered just before the raid. At the Chelsea apartment were you, prior to the 3rd of December 2009, aware of any complaints from other tenants or building managers about the activities that were ongoing there? No. There wasn't a single complaint or -- or issue, which was partly why I think Owen had the music so loud and wasn't, you know, thinking that the police were showing up at any time. Things for the most part seemed okay with the actual building. However, the kitchen itself was still quite small, and there were other concerns that we had, and we were actively looking for a new location when the -- the raid happened. In fact by that time, as opposed to 2007 when I was still very sunk in debt, by 2009 I was actually financially doing much better, and we were looking to invest in a -- in a much nicer place. I had one restaurant that was ready to let us move in in the night, and then the lawyer found out, and that was the end of that. I was actually close to opening up a pizza shop. I figured we'd bake cookies in the day and pizza at night. But that fell through. And so we were looking at, you know, larger commercial spaces, and, you know, even sort of other, you know, kind of businesses. My experience with Ted's Books kind of made me think I could, you know, get a storefront and make cookies in the back, and -- and that would be something that -- that I could do in another
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location. So we were looking at, you know, a cafe somewhere. We were, as a group, you know, seriously looking at -- at other investments and -- and places to move. The raid, though, you know, completely threw us off that, and we had to move the bakery back to a safe location again. You mentioned Owen; you're referring to the accused, Mr. Owen Smith, when you say that? Yes. And when did you -- when did you first meet Mr. Owen Smith? I'm not certain of the exact dates that I would have met Owen. It was likely back in 2002, 2003, when he was a student at Camosun College. And he would come up to the university meetings as well, and -- I'm not sure if he came to any of the board meetings or not, but I certainly remember him from Camosun, because I was banned from the University of Victoria for about four years, and would go up to the Camosun college. We had a club there for a while. And so I really enjoy teaching about this plant, and meeting Owen and the -- the few Camosun students that came to our meetings was important to me. And he was very helpful, not only being president, but helpful in one of the conventions. I believe he made a poster for it, and, you know, helped organize as -- as president of the Camosun club convention. And this is primarily in connection with your activities with the International Hempology 101 Society, is that accurate? Yes. This is -- this is Hempology 101 work. When do you first see or come into contact with Mr. Owen Smith in connection with the Cannabis Buyers' Club of Canada? I believe that was when he started to take a more active role in his sister and her health. And Owen has -- oh, sorry, Owen had a sister who was in very poor health, and so he was acting as her caregiver. I believe for a while he was supplying her himself. Gayle taught him how to make the cookies years ago when he was a student. And so I think he applied some of that knowledge to helping his sister, but then I think realized that -- that we did have a lot of excellent products, and it was probably easier to -- to get it from us, and
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so he, I believe, was acting as -- as her caregiver when -- when I hired him. And Mr. Owen Smith's sister was a member of the CBC of C, is that correct? Yes, she was. For how long -- well, when did Mr. Owen Smith first become employed by the CBC of C? I think it was September 2008 that I brought Owen on board. And what was his role with the Club at that time? His main role was as a baker. I had just let someone go who was not very reliable, and I needed someone who was going to be committed. And I had, you know, some experience working with -- with Owen, where I saw how he could be there on time, and follow through on things he committed so. And I saw the -- the sincerity in which he was helping his -- his sister and his -- his care for her. And his awareness of the potential of this medicine through helping his sister I think really, you know, helped him become more involved as well. It was a distressful situation for him, but providing medicine to her, like I say, really brought the message home, you could say. And so through that experience, you know, it was actually really easy to -- to go and to -- to work at the Club. I've had difficulty hiring people that I could trust and that were committed, and -- and I couldn't imagine working with someone who is more trustworthy, compassionate, and attentive. He's -- he's an amazing young man. And so Mr. Owen Smith, the accused, is working in the bakery for, seems about a year before the events of 3rd of December of 2009, is that about right? Yeah, yeah. In the bakery, and at the Club as well. As I said yesterday, I found it works really good to have a balance. So I think he was working five days a week at the start. But, yes, his -- his main job was baking and making sure that, you know, it was going to -- everybody else that baked on the other days had things lined up as well. And was he paid for his work at the CBC of C? Yes. What was his pay rate? Probably started at $12 an hour, and now he's
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getting 13. Although he may have started when it was still 10, but I doubt it. I don't exactly have records on those things. But -So at least between --- probably $12 an hour. And there's been some benefits that we've been able to provide as well, but ... So at least between the inception of his work for the CBC of C on the 3rd of December of 2009, the rate of pay was somewhere between 12 -- 10 and 13 dollars per hour? Yeah. Certainly never more than 13 and never less than 10. I take you now to the events of the 3rd of December 2009. I take it that at some point you become aware that there's police activity at the Chelsea Street apartment? Yeah. One of our members living in the building found out what was happening and gave us a call at the store. I was at the Club. And so I immediately attended the scene to find out what was happening, and -- so I didn't get all of the officers' names; I didn't take down a notepad or anything like that. And so I talked to several officers as they were coming and going or staking out. They didn't let me in the building. They wanted me to stay outside. And so I -- I was there when -- when Owen was brought out, and -- and just had a brief conversation with the arresting officers. I was not sure what to do, and -- and nor were they. There was indication that -- that -- or that charges might not happen. And so I was in a position where I wasn't sure whether to go public or not with the event, or whether to have a rally there. And in talking with the police officers, we agreed that the incident had already disturbed the neighbours and the building enough, and that having a rally that evening would serve no purpose. And I informed the officers that I was going to go and send out a press release, that we were going to have a press conference at the Club the next day to tell everyone what had happened, and -- when I came back. And the Times columnist had already called up the police and -- and their response was that -- that we -- we couldn't have
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the charges dropped any more, because it had gone public. And it was quite frustrating, because we would have preferred in many ways to have simply, you know, written off whatever we lost in the apartment and -- and moved to some other location, because it seemed as though the only people that were being, you know, in any sense inconvenienced were the -- the next door neighbour and -- and a couple others in the hallway. But the -- the police at that point were -- were proceeding with -- with the charges, and -- and that was -- that was that. I -Knowing now that some neighbours had complained about the activities at the apartment, had they come to you or had you learned about those complaints in advance of the 3rd of December 2009, would you have addressed them? We certainly would have. One of the main complaints was Owen was playing his music too loud, and there was a lady that -- living in the apartment next door who didn't like the idea that there was this thumping music happening every afternoon. Ironically, there seemed to be another apartment on the same floor that was producing hash oil that I mentioned stinks a lot with the isopropanol, and in discussing with the manager the situation, the sit -- you know, it could have been dealt with by simply stopping this individual from, you know, making that, and if we would have been, you know, told that those -- you know, keeping the music down wasn't enough, or -- or -- because we -- we, I think, had the -COURT: Mr. Smith, did somebody complain to you about loud music? No. She complained -- that was part of the complaint to the police. We never got a complaint. COURT: All right. We never -- not once. COURT: So you're just telling me something that a policeman told you later? Yes, sir. TOUSAW: Since the -- since the 3rd of December 2009, I take it the Cannabis Buyers' Club of Canada remains open?
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We are still open, yes. And you have not been subject to any police action at the storefront location on Johnson Street since the 3rd of December 2009, is that correct? That is correct. TOUSAW: My Lord, at this point I'm going to take Mr. Smith through a number of documents that I've provided to my friend at the close of proceedings last night for his review. I have copies for the court as well. So I just propose to take him through the documents one at a time, subject to any objections my friend may have, of course, and at that point I think be concluded -COURT: All right. TOUSAW: -- essentially, Mr. Smith. ECCLES: My Lord, I'm not entirely sure why my friend is seeking to enter into evidence the product guide from the Cannabis Buyers' Club of Canada and various pieces of correspondence generated, without all the attachments included, that Mr. Smith has generated and sent to various individuals. The Crown's concern is there are considerable amounts of material in what my friend seeks to file that the Crown says are simply not accurate, and we -- if it's being tendered by my friend purely to establish state of mind, bona fides of belief, or something of that sort, I'm not entirely sure it's admissible on that basis, but if it's being tendered for the truth of the statements in the particular materials, that the Crown does object to because we do not concede these materials accurately reflect current scientific knowledge, understanding, or the validity of cannabis products to treat certain conditions listed. That's a matter that -- I'm just -- I've read this material over last night, and there seems to be a substantial body of material that's extremely contentious in these proceedings, including statements made throughout the materials that the Crown just does not concede. So if my friend is putting the materials in to establish the state of mind of Mr. Smith as the directing mind of the Cannabis Buyers' Club of Canada, given the nature of the issues before Your Lordship, they might be admissible on that basis, but for the truth of
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their contents the Crown's position is, no, they are not admissible in any way for that. COURT: So you're objecting to a piece of paper or one or more pieces of paper that I have not yet seen on the basis that it offends the hearsay rule. ECCLES: Yes, My Lord. It also offends the opinion rule. But basically hearsay and opinion. COURT: All right. So we'll have to deal with them one at a time. You can object one at a time, and I'll rule one at a time. ECCLES: Thank you, My Lord. TOUSAW: Thank you, My Lord. The first document that I'm seeking to put before Mr. Smith, My Lord, is a pamphlet that's been reproduced in 8 by 11 format, but it's essentially a pamphlet that's a product guide of the Cannabis Buyers' Club of Canada. My friend has a copy, as I indicated. And I should say with respect to claims made of the medical efficacy of the various products within this product guide, it's not my intention to seek to have the Crown concede -- certainly the Crown's entitled to in its reply challenge the scientific bases for any of these materials, and -- and I expect may do so when Dr. David Pate, the expert witness, our expert witness, takes the stand, or during its own reply case. But it seems to me that with respect to at least these products, many of these are the items seized by the police, and it goes to demonstrate what they are, and goes to essentially describing what the activities of the CBC of C are. We've got a tremendous amount of testimony from Mr. Smith about the products, and it seemed to be useful to give Your Lordship a view of what those precisely are. COURT: My first question is, what do you say is the relevance of the piece of paper? TOUSAW: The relevance of the product guide is that it describes essentially the items that form the basis for the counts that Mr. Owen Smith is charged with. I can draw, for example, Your Honour's attention to the first edible product listed, which is Ryanol. That is the label, as Your Honour will recall -- or Your Lordship will
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recall, on some of the jars that were in the fridge that Corporal Brewster testified to. COURT: All right. So this is the list of products offered for sale and the claimed efficacy of those products? TOUSAW: There are certain claims as to efficacy. Essentially it's a description of the products listed for sale and -COURT: All right. TOUSAW: -- produced by Mr. Owen Smith. COURT: Mr. Eccles, what's the objection to this document? ECCLES: The Crown objects to everything under the column, "Conditions helped with cannabis," and the contents thereof. We do not anticipate there being at the end of the day an issue that the courts and the government of Canada have recognized the efficacy of cannabis to assist in treating HIV/AIDS and wasting conditions, multiple sclerosis, muscular dystrophy. Some of these conditions are listed in Health Canada's website and on the MMAR application forms as a recognized basis. What we do not agree is that this is an accurate description, medically sound, or supported by any evidence, or any -COURT: Well, if I admit the document into evidence, it doesn't mean the Crown agrees with its contents. Nobody's asking the Crown to agree. Nor does it say that the claims are accurate. ECCLES: If that -- the difficulty for the Crown, My Lord, is that this is opinion evidence being tendered, in written format, and the Crown's concern is we don't agree with the opinion, and this witness can't render it. If it's going in simply as this is a claim of the Club, but it's not necessarily valid or validated by any other evidence to this point, and it may be that the defence will seek to tender evidence to validate some or all of the contents, that's another matter. But that column, "Conditions helped with cannabis," in my respectful submission this witness is not qualified to give that evidence, and accordingly, that entire column is problematic. It's not relevant to -COURT: I didn't understand -ECCLES: -- the evidence the witness can give. COURT: -- Mr. Tousaw was tendering this as the
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opinion of this witness. MR. ECCLES: Well, the difficulty, My Lord, is if it's not being tendered as the opinion of the witness, and it's not being tendered for the truth of the contents, why is it here? THE COURT: Well, because presumably he's charging customers when he sells them some of this product, and one of the reasons the customers pay him the money for the product is this is what he tells them it's good for. MR. ECCLES: And if that's the basis on which it goes in, without any validation to the claims being tendered by my friend, and that's recognized -- I don't want to be in the uncomfortable position at the close of the case after the Crown's evidence has been tendered of having this being brought forward as a valid medical opinion that was not specifically rebutted by the Crown. In my respectful submission, there's no obligation on the Crown to call any evidence in reply to a flyer from a club with no validation and no basis in this witness to give the evidence set out in the flyer, which is -- actually carries on describing topical applications and skin products and various other items, and herbal remedies that the Club believes do certain things. In the Crown's respectful submission, topical application, skin products, nothing there is -- appears relevant. The use of St. John's wort, arnica, comfrey, peppermint, eucalyptus, camphor, arnica salve, aloe vera salve, Green Lion Salve, lip balms, dog biscuits for the pets, peppermint eucalyptus massage oil, regular massage oil, wild yam, and the use of wild yam oil. That's not relevant, in my respectful submission, to any evidence properly before the court, and cannot become relevant to the issues being raised. That's the difficulty for the Crown, and it's a difficulty that rings through much of the material that I've had the opportunity to review. THE COURT: So with respect to page 2, the topical applications and skin products, you say it's not relevant to any issue that will arise in this voir dire? MR. ECCLES: Yes, My Lord. And nor is there any indication that there will be any witness called who's in a position to actually give evidence that
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the claims made in the pamphlet have a sound scientific basis or support. That's the difficulty the Crown faces here, is -- and that's the concern the Crown has and the objection it has, is evidence is being tendered without any foundation. COURT: You're mixing up the relevance with the is this an opinion. And if it's an opinion, of course it is of assistance only to the extent that the qualifications of the person advancing the opinion are established in evidence, and you've pointed out nobody's qualified to give this as an expert opinion, and the proof of the facts upon -- or assumptions upon which the opinion is based, they're not stated, and so as an opinion, Mr. Eccles, you don't have a problem. ECCLES: No, My Lord. That, I agree. COURT: So let's get back to relevance. You tell me -- because you know of course what's coming far better than I do. You say that there is no issue in this voir dire, or series of voir dires, depending on how it is governed, that the second page, topical application and skin products, could possibly be relevant. ECCLES: In a nutshell, yes, My Lord. It's ... COURT: All right. So let's hear from Mr. Tousaw why there is some possible relevance to the page dealing with topical applications and skin products. TOUSAW: My Lord, at least with respect to the first two paragraphs regarding cannabis oils and Cannapatch, those are products that are infused with cannabinoids. We expect that our expert witness is prepared to give opinion evidence on the efficacy of cannabis based medicines for a variety of conditions. As my friend indicated, I don't know that that's contentious. It may be contentious that the mode of delivery of the cannabinoids may have some level -- some differing levels of efficacy, but I think that's for my friend to challenge when the expert gives testimony. And my memory from Dr. Kalant, who testified in the Beren and Swallow matter, is that he was also cross-examined and gave some opinion evidence on this point. I believe that my friend at some point will seek to tender Dr. Kalant's testimony from Beren and Swallow in this case.
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With respect to the other items and ingredients, they are essentially the ingredients -- and I will tender later the recipe book, which is published online, of all the various products that Mr. Owen Smith was producing for the members of the Cannabis Buyers' Club of Canada, and these various naturopathic remedies, for lack of a better word, are present in many of those cookies, oils, balms, extracts, the things being sold by -- by the fashion [sic] club. It is Mr. Smith's submission that it's relevant to provide Your Lordship with an understanding of precisely what it is that Mr. Owen Smith was doing, and why he was doing it, and why in his respectful submission the Charter rights, both of the members and he, as the producer of these items, are engaged in this voir dire. Subject to Your Lordship's questions, my submission. THE COURT: No. Any reply? MR. ECCLES: No, My Lord. THE COURT: The defence has tendered a document, and I gather that there is going to be a series of these. This document is entitled, "Cannabis Buyers' Club of Canada, Product Guide." Looking at it briefly, it lists "Edible products" in one column, "Conditions helped with cannabis" in another column; a third column is "Topical applications and skin products." A number of items are listed under each column relevant to the heading of the column. The Crown objection to the admissibility of this document is threefold. One, that it contains hearsay evidence; second, that it contains opinion evidence that is -- requires proven expertise before it can be tendered, or admitted; and, third, that it generally, and particularly with the list of topical applications and skin products, is not relevant to any issue that I may have to decide in this voir dire. As to hearsay, it is not clear to me that this offends the hearsay rule, except perhaps as an analogy to the opinion objection, that is to the extent that there is a claimed efficacy or a claimed result from the use of any of the things listed, that might, I suppose, indicate that there
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is a hearsay element. I view the hearsay objection as misguided in this -- with respect to this document, and I do not view it as a document which, for the truth of its contents, contains the assertions of parties or people outside this court. With respect to opinions, that is dealt with quite simply, it seems to me. If there are opinions advanced, they are a mixture. Some of these may in fact require expertise, that is special training or special experience, to advance. There has been no attempt to qualify this witness as an expert, although there has been some evidence from which I could infer, if asked to, that he may have, by reason of experience and self-teaching, sufficient knowledge in the field to give some opinions, if opinions are required. And I will say this, because no doubt we will get to it at some point during the voir dire. There is a case, I think it is Bunnis [phonetic], in the Court of Appeal, many years ago, which makes it quite clear that one can be an expert in a field without having necessarily attended a university or obtained a degree in a field. All it takes to be an expert is a course of study or training, and the source of the study or training is not determinative. So I am not going to rule on whether this witness or any other person is an expert in this voir dire until I am asked to. To the extent that this document may contain statements of opinion, I will need to be shown that the opinions challenged in the document are those to which expertise is necessarily required before they can be advanced. Ordinary people can give opinions on things of ordinary importance, subject to relevance. So let me turn to the third objection. It is difficult at this stage of a voir dire for me to know whether something is relevant to the issues I am going to have to decide at the end of the voir dire. It may be that this document is completely irrelevant to anything I will have to decide; it may be that it is quite relevant, or arguably relevant to something I will have to decide. It seems to me the sensible thing to do is to mark it for identification at this stage so that we will know what we are talking about at the end, and to
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again canvass the question of admissibility by relevance on any other ground at the end of the voir dire. So this will be A for identification on the voir dire. EXHIBIT A for identification (on voir dire #1): Cannabis Buyers' Club of Canada, Product Guide THE MR. MR. THE COURT: And we'll take the morning break. TOUSAW: Thank you, My Lord. ECCLES: Thank you, My Lord. CLERK: Order in court. (WITNESS STOOD DOWN) (PROCEEDINGS ADJOURNED FOR MORNING RECESS) (PROCEEDINGS RECONVENED) THE CLERK: Order in court. LEON EDWARD SMITH a witness called for the Accused, recalled. THE COURT: Is there another copy of A for identification? MR. TOUSAW: I can provide -- we have -THE CLERK: I've got one that's marked. I don't know whether you wanted -THE COURT: No, I just need one for myself. THE CLERK: Okay. MR. TOUSAW: Yes. Yes, My Lord. I think unfortunately it -- I will pass this one up. I have just written "A" on it. I will ask that Exhibit A for identification be put in front of Mr. Smith, if possible. EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: Q A Q A Mr. Smith, you see a document in front of you that's been marked Exhibit A for identification in these proceedings; do you recognize that document? Yes, I certainly do. And what is it? This is the Club's product guide that we
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distribute to our members and the public. And is this available at the CBC of C storefront location? It is available at our store, yes. And does this product guide list all of the products that are available at the CBC of C as of the 3rd of December 2009? I believe so. We don't date the pamphlets to, you know, determine when they are -- they are being made, and don't have exact records as to when the products became available. But it -- it seems to me that this would be, if not exactly what was being made in the kitchen, you know, within one or two items what was being made. And with respect to Exhibit A for identification, you described a process earlier by which you -- or the CBC of C is refining products, changing products. You talked about taking the leaf and decarboxylizing and infusing the oils. Is this a -- is it a -- is it the case that the CBC of C is constantly re-evaluating and updating this pamphlet, or is this pretty static at the time, currently? It is quite static. We do add new products occasionally. I know we've added a new product recently that isn't on here. I'm not sure if the Green Lion Salve was being made at the time of the bakery raid. So -- so we may add a product once a year at this rate, even without the expansion of the kitchen. You know, we have members with -- with all sorts of conditions reporting to us, you know, what their needs are, and so we try to complement what we have and add new things when we can. But, yeah, this -- this would be what we were providing back then for the most part. Let me ask you to turn to page 2. Well, let me ask you a general question first. In terms of the edible products listed on page 1, are all of these products infused with cannabis in one form or another? Well, on -- on page 1, on the left column all -- all of those products contain either cannabis bud, cannabis leaf, or, in the case of the Kamut Puff, actually the stalk, which is normally discarded. And so there are in a way three distinctly different medicines that we make out of cannabis here. Again, the bud and the leaf
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and the stalk. And when you say the bud, the leaf, and the stalk, do you mean you're actually putting the bud, the ground up dried marihuana itself in the product, or do you mean something else by that? We mean the bud that most people smoke. It gets ground up and cooked into the oils. In the process you described earlier in which you then strain the plant matter out? Yes. Okay. I wasn't sure if you were actually taking the bud material itself and putting it in, but you mean an oil extract? Yes. Using either bud, leaf, or stalk, is that accurate? That is more accurate, yes. I -Okay. I should have said an extract. Thank you. With respect to page 2 of Exhibit A for identification, I'll ask the same question. Are all of the products listed on page 2 -- do all of the products listed on page 2 under the heading, "Topical applications and skin products," or, "Pets," do they all contain some infusion of cannabis? Yes, they all contain an infusion of cannabis, with the exception of the Cannapatch, because that is still the leaf material, so to call it an infusion, you know, it's more soaked in leaf, so it still is the actual leaf. There hasn't been that -- that extraction process. So with the exception of the patch, they all contain cannabis. Olive oil is the base of the skin products, so, you know, and when it lists wild yam oil and -- and the others, we would mix it 50 percent with cannabis infused oil and 50 percent with one of these other herbs. And so that -- that was, I believe, and is the standard ratio for all the massage oils. But certainly all of the salves and -- and the lip balm as well are made with olive oil infused with cannabis. Okay. I ask that, and just by way of an example, for example, in the -- in the first column on the left of Exhibit A, page 2, second bold faced heading, it says, "Regular massage oil." Mm-hmm.
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And then, brackets, "Olive oil, plant leaf, vit.," which I assume is vitamin, "E", end brackets. When olive oil is listed there, I take it that means cannabis infused olive oil, correct? Yes. And same for the other -- same for the other bold faced headings, St. John's wort, arnica, it's not just St. John's wort oil, but, as you say, it's a combination of St. John's wort oil mixed with a cannabis infused olive oil? Yeah. And that's consistent throughout page 2? Yes, it is. Okay. Thank you. Are you the individual as of the 3rd of December 2009 that was primarily responsible for developing these products? I am the final person for any new product to go past, or any change on the recipes. Although I have gradually given that responsibility to my -- my girlfriend Gayle, who at the time was overseeing the -- the operations of the bakery, helping make sure it was supplied, and the equipment was all working, and -- and in developing the new products. But I would be the final person to authorize the development, or even looking at any new products. Before Gayle came along I was the main person in developing products like the Ryanol capsules. You know, we initial -- initially started with the cookies, but a lot of people reported problems with the cookies in various ways. People put on weight. You know, eating a couple cookies a day for many people wasn't very good for them. The sugar, for a lot of people, the -- the flour. Actually the cookies are really a junk food. And so the Ryanol was a product that I actually named after Ryan Fink, who worked for the Club for a while there, and it is meant to be something that, you know, anyone can take, no matter what their dietary complications were, and it was a very standardized medicine in a little gel cap, so people could become quite familiar with -- with the results from taking, you know, one or two. So the Ryanol capsules were certainly one I developed. The Buddha Balls as well, I -- I developed for people that could barely eat. The Buddha Balls have enough protein in them, the whey
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powder and hemp protein, that can keep a person alive for -- for a day if they don't eat anything else. And so when people are approaching their last days, the Buddha Balls in particular seem to help them, you know, maintain. And so for people with cancer and Hep C and stuff, they've, you know, had -- had many great reports of the Buddha Balls. Plus they don't have sugar in them. They're made with honey, so that people that are diabetics, or others that don't want to eat sugar can use the Buddha Balls. So that's been another product I -- I developed myself that I'm very proud of. And again, I -- I co-ordinated all the ratios and such, you know, talking with -- with people and the members as much as possible. Our members are our greatest resource, so, you know, getting feedback from them on everything we do has been really important to us. And so as people have reported, you know, different, you know, benefits and stuff, then they would also, you know, complain that there's something else that wasn't dealt with, which would make us want to, you know, look at other opportunities. And so at the time, you know, we had just expanded quite a bit. As I said, we -- part of moving into that facility was being able to add onto the product line, and before, when the -- you know, when it was all in our -- our kitchen, we had one fridge, and to have, like, bottles of St. John's wort oil and arnica oil and stuff, we just didn't have the room. So having that -- that separate apartment was good to -- to expand on the product line. And we had just gone through a sort of burst in that. And so, yeah, it's something that -- that I very much have been in charge of, but if I identified a need in talking to others, you know, I would direct Gayle or -- or someone to work on, you know, that -- that formula. And the best example would be the -- the Green Lion Salve. Let me ask you, then, with respect to the edible products on page 1 of Exhibit A for identification, these are products that were being, on the 3rd of December 2009, produced by Mr. Owen Smith at the Chelsea Street apartment location?
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Yes, they were. You know, whether every -- every product wasn't being made every day, that's for sure, but our bakery has been going for seven days a week for several years now. The demand is great enough that we -- we don't go a day without making cookies and medicine for people. And in terms of, for example, the Ryanol, that's a product that would be assembled at the bakery? Yes. The capsules filled or -Yeah. -- whatever the case may be? Very much like the pictures displayed, where they clean the countertop, put up a little tray, open up the caps, and -- and fill them up with that little dropper, and cap them all up, and that would be it. What is the -- I notice there are no prices on this product guide. Mm-hmm. Is that because the prices vary, or what's the reason for that? Well, I guess there's -- there's a few funny reasons why I haven't put the prices in there. I -- I could. There's been no reason not to. I guess prices are subject to change, so that's one concern. But we've not wanted to promote the price so much as what the products are themselves. The prices are often below cost. Our cookies, for example, we sell for a dollar, and right now I'm pretty sure we're losing probably, you know, 50 cents on each cookie. Because we don't really calculate all the labour and all -- all the expenses. We've sort of calculated in the basic cost of the products, but we use really good organic eggs in -- in the cookies, and -- and the highest quality food that we can. And so the cookies I know we're still losing money on. The Ryanol we sell at 20 for $5; that's 25 cents a piece. The Buddha Balls are $2. The massage oil, the regular is $10. The most expensive massage oil would be the St. John's wort oil, which would be 15. Let me stop you. You say $10, and that's for how much massage oil? It's a bottle, about that big. I don't think any of the bottles were shown in evidence. They were
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in the apartment there, but I don't think any of the pictures show them. But, yeah, about that large. I don't really know how many fluid ounces that is, honestly. And you mention the most expensive oil is the St. John's wort oil? Yeah. And how much -Fifteen dollars. -- do you sell that -- $15? Yeah. And that's because of the labour. A lot of these herbs we pick ourselves. Like, for the St. John's wort oil we pick at the -- in Cobble Hill, and other places. We do it ourselves. And that is a significant labour cost, but we try and handcraft as many of the herbs as possible, even sending people out into the interior to get arnica. Let's just go through perhaps and add -- attach prices to the various items on Exhibit A. You've mentioned the Ryanol, 20 capsules for $5. How much are the biscuit buddies? Bisc. Buddies, we call them. Yeah. They're kind of like biscottis. We -- gee, I remember the bulk price is 15 of them for $10, or 75 cents a piece. The cookies you mentioned were a dollar per cookie? The cookies are a dollar a piece. There's no break for buying more. And the Buddha Balls as well, $2 a piece, no break. And again, we're not giving price breaks, because we're pretty much losing money already, so we're not going to lose more money because you're buying a lot. Kamut Puffs are a dollar. The Kamut Puffs are unique, and actually it doesn't -- oh, wait, it does -- yeah, it doesn't say it in there. Oh no. The Kamut Puffs are made with stalk, as it says there, stalk infused oil, but we don't decarboxylize, and that way the oil isn't as psychoactive, and people don't report having a sort of high or being intoxicated. The Kamut Puffs are pure medicine for people. So for those that come to our club and want to minimize, you know, the mental effects but maximize the medical, it would be the Kamut Puffs, because we don't
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decarboxylize them. I never noticed that. And the extra-strength cookies? Extra-strength cookies, eight for ten bucks, or a dollar fifty a piece, normally. And the difference between the extra-strength cookies and the regular cookies, I just see in the description one -- the regular cookie says, "Leaf infused butter," and the extra-strength cookie says, "Bud infused olive oil." What -Yeah. What do you mean when you say that? Well, the difference would be, again, we would use for the what we call extra-strength cookies, bud that is, you know, sold in the store, and we will always take, you know, three or four different kinds of bud, or -- or leaf for any of our products, and we -- we mix them all together. And that's different than the leaf, which is more the -- the fan leaves, the bigger leaves that are often discarded. And that would be what we would use for the normal cookies. The -- the ratio, I understand if -- if the -- the regular cookies have got approximately a gram of leaf cooked into each cookie. That's sort of how it -- it's actually a little bit less than a gram. And the extra-strength cookies, the ratios that we use make it so each cookie has got approximately .1 of a gram of bud. Now, the difference that people report is that the larger cookies made out of leaf are great muscle relaxants. They really help people sleep. And for, you know, stiff joints and back problems, the regular cookies are -- are incomparable, really. On the other hand, the extra-strength cookies don't have the muscle relaxing benefits as much. They are there, but because there's, you know, a higher quantity of THC, it seems that there's more pain-killing effect in the extra-strength cookies, without actually relaxing people's muscles. So people will report to us that they might for example use the extra-strength cookies during the day, because it doesn't make them drowsy, and then they would eat the regular cookie in the evening to help them go to sleep. That -- that's sort of a common regime. You mentioned in your answer that there was approximately a gram of leaf per regular cookie.
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I take it based on your prior testimony, you don't mean a gram of the actual leaf material, but rather a gram of -Yeah. -- leaf material that has then been extracted into the oils? Yeah. Is that right? A gram of leaf that's been infused into -- to olive oil, yes. In the process that you described with the double boiler that takes place at the CBC of C, correct? Yes, yeah. All of these products have been put through the straining process, with the exception of the Cannapatch. You know, everything else has been strained, you know, with the cheese cloth or -- or metal sieve. And the cost of the Cannoil? The Cannoil is $25. There's two and a half grams of cannabis bud in there, and so that again is pretty much -- like, we charge $25 for two and a half grams of bud, so the cooking is done almost for free. And that is again in a bottle format? Yeah. Little bottle, about that big. It's got about 14 teaspoons in it, so that way each teaspoon contains about .2 of a gram, which really helps a lot of our members that are trying to monitor how much they're using, and regulate it. And the ginger Cannoil, same thing but infused with ginger? Yes. Same price? Yeah. Yeah, I believe that's $25 as well. The lozenges? The lozenges are eight for $10. And, Your Worship, you'll recall in the exhibits in the fridge there was a picture of a red tray with a bunch of small sort of brown-like substances in it. That was in fact the lozenges, and they just hadn't been wrapped up yet. They get put into the fridge, where they will cool and harden, and then they get taken out of that tray and -- and wrapped up into wax paper. And they're -- we simply call them lozenges because in part the slippery elm bark in them helps people's throats. And they're shaped like candies, but they have no sugar in
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them at all, so they're a very, very healthy product. And the Cannapatch on page 2 of Exhibit A for identification? The Cannapatch, $2.50. Per patch? Per patch. You've mentioned the regular massage oil? At $10. At $10. And the wild yam? Oh, boy. I think the wild yam is 12. I believe the St. John's wort is 15. I believe the arnica is 12. I believe the comfrey is 12. And I think actually the mint and eucalyptus and camphor I think we might actually sell at $10, but I -- I could be wrong. And the salve? The salve would be $10, and that would be for a jar, about -- oh, yeah, a bit rounder than my fingers, and that big. The arnica salve? Hm. That might be $13. The aloe vera salve? I believe that's $15. The Green Lion Salve? I think that might be $13. The lip balm? Four. And for how much of a quantity? A regular size, you know, lip balm container. You know, it's not that big. And I see here you have two items for pets. Do you sell those at the CBC of C? We do. If you look over, the peppermint and eucalyptus is -- are listed for people as well. It just seems that for pets that have dry skin and problems with -- with, you know, pests, or bugs, that that works as well. But the dog biscuits were made specifically for pets. Actually Gayle had a partner with dogs that had cancer and -- and old-age dog problems, so she designed them for -- for those dogs, and we decided to have that product available for -- for the members. And how much are those biscuits? I can't recall. We don't sell a lot of dog biscuits.
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MR. TOUSAW: That concludes my questions on Exhibit A for identification, Madam Clerk. My Lord, I'm going to put additional materials before Mr. Smith. I have about seven more documents. Rather than have a dialogue with my friend and Your Lordship about each, the admissibility of each, I propose that perhaps we mark them all as exhibits for identification and make argument, if necessary, at the close of the voir dire. MR. ECCLES: Agreeable to the Crown, My Lord. THE COURT: All right. MR. TOUSAW: The next document I'll pass forward, then, My Lord, is -- appears to be a City of Victoria proclamation. My friend has a copy. I'm going to pass two copies forward, and ask that they be marked as Exhibit B for identification. THE COURT: So one of those will be B for identification. MR. TOUSAW: Q And, Mr. Smith, when the clerk puts that before you I'll just ask you if you recognize it and what it is. THE COURT: Well, dealing with this one, is there an objection to this proclamation? And if so, on what ground? MR. ECCLES: In respect of this document, no objection, My Lord. THE COURT: All right. So that can be Exhibit -- what number are we at in real numbers, Madam Clerk, 4 or 5? THE CLERK: Oh, no, Your Honour. We're at Exhibit 6. THE COURT: Six. This will be Exhibit 6. MR. TOUSAW: Thank you, My Lord. EXHIBIT 6 (on voir dire #1): City of Victoria Proclamation "International Medical Marijuana Day" MR. TOUSAW: I'd ask that that be put in front of the witness. Thank you. Q Mr. Smith, do you recognize what's been marked as Exhibit 6 in these proceedings? A Yes, I certainly do. Q And what is that? A This is a proclamation that the City of Victoria passed in 2002. When we were getting raided
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earlier that year we went to the City to plea for assistance in any way possible, and this was one of the ways in which the council was -- was able to show their support. I actually ran for mayor that year and actually became quite familiar with the city council and -- and such, and had this proclamation passed on, as you can see, International Medical Marihuana Day, which has now become International Medical Marihuana Week, and we have a similar proclamation passed every year. This will be I guess the 10th year of, you know, these proclamations from the City. TOUSAW: The next -- the next document that I'm going to pass up, My Lord, is a letter from Mayor Alan Low to the Honourable Tony Clement, dated March 20, 2006. At the time Minister Clement was the Minister of Health for Canada. Mr. Smith is copied on the letter, and that appears at the bottom. If my friend has no objection, perhaps we can mark it as identification. If not -- I'll leave it to my friend to advise. If not, I'd ask it be marked Exhibit 7. ECCLES: I'm not -- I'll object on the basis of relevant, My Lord. TOUSAW: My Lord, it goes to -- it's dated March 20, 2006. It goes to, in my respectful submission, the social facts surrounding -- what the Supreme Court has called legislative facts surrounding the operation of the Cannabis Buyers' Club and the operation of the federal Marihuana Medical Access Regulations, which are at issue in this voir dire and in Mr. Owen Smith's application, and goes to the climate, social and legislative climate existing, at least as of March 20, 2006, with respect to the operation of the MMAR program. COURT: Mr. Eccles, you want to deal with this now or at the end? It seems to me that when the Mayor of Victoria writes to the Minister of Health and questions the adequacy of production and distribution channels, we're getting pretty close to issues I'm going to have to deal with on the voir dire, aren't we? ECCLES: The difficulty, My Lord, is we don't have any indication what went on at council, and this is three and a half years, close to three -- you know, over three and a half years before the
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events at bar. The MMAR program has been modified since March 20th of 2006. It references citizens raising complaints, with no indication of what they were, how they were raised, where they were raised, no minutes. In my respectful submission it may best be marked as an exhibit for identification at this stage, and then we can deal with relevance and/or weight once we have the full case before Your Lordship. COURT: Any reply, Mr. Tousaw? TOUSAW: I'm in Your Lordship's hands on it. My friend is correct that the MMAR have been amended as a result, in my submission, of court decisions, subsequent to March 20, 2006, but I -- it would be Mr. Smith's submission that that's of no particular moment in terms of relevance. It's of assistance in some of the issues presented in this case, and in Mr. Smith's respectful submission meets the threshold for being relevant to the issues to be decided by Your Lordship. ECCLES: Just one final comment, My Lord, is the concern the Crown has is in particular the second paragraph: "Given many of these citizens currently rely ..." that the -- "... expressed an inability to access the program." The access issue has been decided by this court in Beren and Swallow, and this court concluded that the access issue does not -- the method of access, the use of physicians to prescribe medication to individuals seeking to access medication does not breach the Charter, and is appropriate. That -- that's my concern here. This letter seems to have been superseded by events and subsequent decisions of this court, or at least one -- two decisions of this court, the Beren decision and the Poelzer decision. Both upheld the MMAR, in particular the access provisions. That's why in the Crown's respectful submission the concerns expressed based on concerns raised by unknown individuals have relevance to the issues that in my respectful submission are perhaps best addressed once we have heard all the evidence in this matter. TOUSAW: My Lord, I'm not going to make argument on what the decision in Beren and Swallow and Poelzer stood for on the access issue at this particular juncture. I take some issue with my friend's
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characterization. But this is a different case, and the facts are different, and the test, in my respectful submission, for relevance, is -- the threshold is low, and is met by this -- by this document. I don't expect to place any particular reliance on the fact that some citizens complained to the mayor or council of Victoria in March of 2006. I think this is a business record, and not subject to the hearsay rule, to the extent my friend's making a hearsay objection, but in terms of relevance, it's -- it's of some assistance, doesn't appear to me to be prejudicial to the Crown's case, and ought to be admitted. THE COURT: All right. Thank you. I have tendered by the defence a copy of a letter on the letterhead of the City of Victoria, Office of the Mayor, dated March 20, 2006. The letter is directed to the Honourable Tony Clement, Minister's Office, Health Canada, in Ottawa, copied to the Honourable Vic Toews, Minister of Justice and Attorney General of Canada. It is also copied, I note, to members of Victoria City Council, the then chief of the Victoria City Police Department, apparently to this witness, to the Director of Health Canada, and to a Mr. Lucas of the Vancouver Island Compassion Society and vice chair of the Downtown Advisory Committee. The Crown objects to the admissibility of this letter on the basis that it is not relevant, and in part on the basis that some of the assertions made by the mayor have been overtaken or have been dealt with by subsequent amendments of the federal Marihuana Medical Access Regulations. Looking at the contents of the letter, it seems to generally raise questions of access to cannabis for medicinal purposes, and to point out the inadequacy, at least in the eye of the mayor, of production and distribution channels. I gather that that will form at least some part of the argument I am going to hear at the conclusion of this voir dire. It seems to me that there is some relevance to the letter to issues I will have to decide. The fact that some portions of it are no longer or may no longer be accurate because of amendments to the Regulations can be dealt with in final argument.
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The letter will be Exhibit 7. MR. TOUSAW: Thank you My Lord. EXHIBIT 7 (on voir dire #1): Letter from Office of the Mayor of Victoria, B.C. to Tony Clement dated March 20, 2006 MR. TOUSAW: Q Now, Mr. Smith, with respect to Exhibit 7 in these proceedings, I ask, have you seen that document before? A Yes, I have certainly seen this document before. Q And you were a recipient of it, as indicated at the bottom of the letter? A Yes, I was. MR. TOUSAW: I don't have any questions about the contents of the document for Mr. Smith. The next document that I'm going to pass up, My Lord, is a letter dated February 3, 2005, addressed -- on the letterhead of the International Hempology 101 Society, addressed to the Honourable Ujjal Dosanjh, at that time Minister of Health for Canada. And I'll just pass that forward. I'm going to ask that it be marked as Exhibit 8 in these proceedings. A It's a two-page letter, isn't it? MR. TOUSAW: I only have the one page. A Oh, no. MR. TOUSAW: The witness has expressed that this may be incomplete, so perhaps -THE COURT: You want to wait until two o'clock to see if you get a -MR. TOUSAW: I think that's wise. THE COURT: -- complete version of it before we -MR. TOUSAW: I think that's wise, My Lord. THE COURT: -- decide whether we're going to have an argument over it? A I'm terribly sorry. MR. TOUSAW: It appeared to me to perhaps be simply unsigned, rather than incomplete. But we'll hold that back. Q The next document -- well, perhaps I'll ask this question, because the next document is actually a response from Health Canada. In February of 2005, Mr. Smith, did you write to the Honourable Ujjal Dosanjh, Minister of Health for Canada?
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Yes. In January 2005 I was convicted of selling cannabis resin for the food and skin products at the Buyers' Club, in the second trial. And so as I mentioned yesterday, I filed an appeal, personally, but I also wrote letters to Ujjal Dosanjh and several Members of Parliament, including David Anderson, the Liberal Member of Parliament for Victoria at the time. And we described, you know, the problem that -- as we perceived it with the MMAR not allowing individuals to use cannabis derivatives or to make, you know, cookies and -- and skin products. And we wrote to Ujjal and -- and others in a -- in a plea for -- for help with this matter. And did you receive any response back to your correspondence to the Honourable Ujjal Dosanjh, then Minister of Health for Canada? Yes, we did. TOUSAW: My Lord, I'm going to pass up a letter on Health Canada stationery, dated July 27, 2005, addressed to Mr. Leon Smith, the witness, and signed on page 2 by Susan Fletcher. I'd ask that it be marked as Exhibit 8 in these proceedings. COURT: Any objection, Mr. Eccles? ECCLES: No, My Lord. Crown's concerns will go to weight. COURT: All right. Exhibit 8. TOUSAW: Thank you, My Lord. EXHIBIT 8 (on voir dire #1): Letter to Leon Smith from Susan Fletcher dated July 27, 2005
MR. TOUSAW: I'll ask that Exhibit 8 be placed in front of Mr. Smith. Q Mr. Smith, Exhibit 8 in these proceedings has been placed in front of you, and I'll ask you if you recognize that document. A Yes, I do. That was the response that we -- we received on behalf of Ujjal Dosanjh. Q And by "response" you mean response to your correspondence of February 2005, addressed to the Honourable Ujjal Dosanjh? A Yes. Q I'll direct your attention to page 2 of Exhibit 8, the second to last full paragraph, commencing with, "The MMAR currently authorized." Do you see that --
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Yes, I do. -- paragraph? In that paragraph Ms. Fletcher, who appears to have signed the letter, has that been sent, in essence, in response to your inquiry of February 2005 about cannabis resin? A That -- that is an attempt to -- to respond to the matters that we were raising. Although, as you can see in the next paragraph, they realize that -- they are not the answers to the questions that we were either hoping for or expecting, and the -- the statements that were made there were quite concerning to us. They seemed quite different from our experience, and to -- to suggest that there's very little anecdotal evidence, even, of using cannabis resin for medical purposes, to me suggests a lack of initiative in -- in trying to find that information, because it is certainly available, and that seemed quite difficult to -- to believe. And our letter was quite explicit to state that we were talking about edible and topical products, and that we were being charged with cannabis resin for them, which is a different plant material. It's something that, you know, our experience, when it says that cannabis resin poses a greater threat or greater risk to patients due to difficulty in dosing because it's higher concentration is actually really counterintuitive. In some ways, the higher concentration of THC that can occur in -- in cannabis resin would make it, in my understanding, you know, more effective, not less effective. And their -- in my experience, and others', there's not been a difficulty in controlling doses because of something that's got a higher concentration. So that seemed to be the opposite of our experience as -- as well. And the first statement there as well really doesn't -- doesn't make much sense, to say that it is only the dried plant material that can be used. That was the first time I'd sort of heard, you know, dried plant material from Health Canada. It didn't make sense to me that -- that -Q And did that -- did you -- did the receipt of this letter prompt you to take any further action? A Oh, we wrote back pretty quick, yeah. MR. TOUSAW: I'm going to pass forward the next letter. It's on International Hempology 101 Society
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letterhead. It's a three-page letter, this one having a signature at the end, so I'm fairly confident it's the entire document. And I'll ask that that be marked as Exhibit 9. COURT: Any objection, Mr. Eccles? ECCLES: Odd situation, My Lord. We don't object to the letter as being written by Mr. Smith. The weight to be attached to any opinions expressed within it is a matter for Your Lordship at the end of the day. COURT: Seems to me, in just scanning it, it just seems to be Mr. Smith's argument in response to Ms. Fletcher's letter. I suppose there has been an ongoing debate for some time, and this is his version or his contribution to the debate and discussion. I do not know how much weight it will get at the end, but it seems to me it is sufficiently relevant to be admitted as Exhibit 9. TOUSAW: Thank you, My Lord. EXHIBIT 9 (on voir dire #1): Letter from Leon "Ted" Smith to Susan Fletcher dated January 4, 2006
MR. TOUSAW: And I will ask that Mr. Smith be provided with Exhibit 9. Q You've been handed what's been marked as Exhibit 9 in these proceedings, Mr. Smith, and I'll ask you if you recognize that letter, and if so, what it is. A Yes. This is the letter I wrote back to Susan Fletcher, the author of the last letter from Health Canada. Q And I take it in this letter you are expressing the concerns that you identified a few moments ago with Health Canada's correspondence to you? A I -- I am addressing concerns. It starts out with discussing the fact that the charges of cannabis resin had been dropped in -- in October of 2005, so this letter was written after that, with the concern being that, you know, cannabis resin and derivatives were still illegal for patients to use, and that the law was not going to be clarified in court, and was hoping for a political resolution. And so I have several questions in here about how the -- the MMAR was made. I ask where they
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got their information to make the statements in the last letter, the statements about the higher concentrations of THC, and such. And so I also point to a book, and -- with various scientific studies in it about the efficacy of using resins and -- and products made out of the cannabis plant, aside from smoking it. Because in their other letter they said that they didn't know -- there was little, if any, anecdotal evidence, and I wanted to give them a place that they could look for that anecdotal evidence, because as I said, it's out there; they just weren't seeking that. And so I wanted to send them in that direction as well. I note in the second full paragraph at page 2 of Exhibit 9, commencing with, "You state that resin may pose a greater health risk." It ends with a question, asking whether Health Canada has any research about cannabis resin. Subsequent to sending this letter of January 4, 2006, did Health Canada provide you with any such research? Health Canada has never cited a study or any research on cannabis resin to base any of their claims. I have repeatedly asked them for that information, but they just come up with the claims and don't bother, you know, sourcing where they came up with those claims. Seemed to be making it up as they go. TOUSAW: I'll -- those are all my questions for Exhibit 9. COURT: I note the time. Do you want to start another piece of paper now, or wait until two o'clock? TOUSAW: Yes, My Lord. I think it's probably an opportune time for a break. I have about six more letters in this sort of back and forth with Health Canada, we'll attempt to bring a full copy of the February 3, 2005 letter, and then I expect my questions for Mr. Smith will be concluded and I'll be able to turn him over to my friend. COURT: All right. I should tell counsel that I'm having a prehearing conference with other counsel at 1:30, the result of which will determine whether or not I'm going to have to stand you down tomorrow at 2:00. And so I'll be able to give you that answer, I hope, at two o'clock this afternoon.
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MR. TOUSAW: Thank you, My Lord. THE CLERK: Order in court. (WITNESS STOOD DOWN) (PROCEEDINGS ADJOURNED FOR NOON RECESS) (PROCEEDINGS RECONVENED) THE CLERK: Order in court. Recalling the matter of Her Majesty the Queen against Owen Smith, My Lord. LEON EDWARD SMITH a witness called for the Accused, recalled. MR. TOUSAW: Thank you, My Lord. I over the lunch break was able to retrieve page 2 of the Ted Smith letter of February 3, 2005. I've given my friend a copy. I'm going to pass up two copies. This is, Your Lordship will recall, the letter that began the series of correspondence that we were inquiring into just before the lunch break. So I'd ask that that be marked as the next exhibit in order, which I believe to be Exhibit 10. THE COURT: Any objection, Mr. Eccles? MR. ECCLES: Objections of the Crown will go to weight, My Lord. THE COURT: All right. Exhibit 10. MR. TOUSAW: And I'll just ask that when that's marked that it be put before Mr. Smith. EXHIBIT 10 (on voir dire #1): Letter to Ujjal Dosanjh from Leon "Ted" Smith dated February 3, 2005 EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: Q Now, Mr. Smith, Exhibit 10 in these proceedings has been put before you. I'll ask you if you recognize that document, and describe it, please, for the court. Yes. This was the letter that I wrote to Ujjal Dosanjh when he was Minister for Health Canada, as well as other Members of Parliament. It was written within weeks after my conviction of cannabis resin, for selling the food and skin
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products. And you can tell by the language I was quite disturbed. We were -- we were really surprised by that conviction. Before that time, as far as we knew, cannabis and all of its derivatives were legally available. In the fifth paragraph, second from the bottom of page 1 of Exhibit 10, starting with, "It is ironic," you conclude the paragraph by suggesting that, "Making a plant legal but the crystals that form on the plant's leaves illegal defies logic." I'll just ask you, without seeking to or having it come in, My Lord, for the truth of the matter or as a legal opinion, I'm just going to ask, is that your understanding or was that your understanding on February 3, 2005, of the contours of the Medical Marihuana Access Regulation program? Um ... Maybe I'll ask a better question. Did you understand, when you wrote this letter in February of 2005, that persons with a licence to possess marihuana for medical purposes could possess the plant but not the resin that grows on that plant? A Yes. I -- I understood that. In fact that was the crux of the trial beforehand, where the charges of trafficking in cannabis were dismissed from the very beginning, and the Crown was only interested in -- in pursuing charges against us for the food and skin products. And -- and as well, you know, what we commonly refer to as hashish, the -- the kief that is smoked, would be considered, you know, cannabis resin. In fact, traditionally, you know, that is what cannabis resin is understood to be, is either hashish or hash oil, or some sort of concentrated smoke product. And so -- but the -- the kief, even, is again a part of the plant. It forms as crystals on the leaf, and when -- when it's dried, you can break it off. You don't even have to do it intentionally. In the -- the bags and the jars of pot that we sell at the Club, you end up with this crystal on the inside of the bag and the jar, and that's the resin, and you can scrape that up, and it's -- and -- and smoke it. It's very potent, and you don't have all the tars and plant material that you have in the leaf. So you smoke less and achieve greater, you know, medical benefits from
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it. And so the idea that somehow the plant in the bag is legal but the actual crystal that has broken off of it and fallen illegal, just defies logic. Again, I -- I have a philosophy degree in university, so I've studied logic specifically, and I've worked a lot of these things through very pragmatically, and -- and just the concept that you can have a plant legal, but somehow if -- if, you know, a small part of that breaks off, a flower pistil, or whatever, and then it's illegal, just defies any logic. Q And that -- and that really is what's providing you the impetus of writing this February 3, 2005 letter? A That is the -- the entire crux of this letter, and my continued, you know, writing back to -- to Health Canada. Because my experience has been quite different than -- than the policy, in terms of how this plant is used and -- and what its greatest benefits can be. And it's been very distressing since the very beginning. It seems, you know, they've written out the -- the best use of this plant, and are essentially forcing people into smoking it for their health, which is something that most doctors disagree with. There's a letter from the College of Physicians and Surgeons, I didn't put it in part of my package, where they're, you know, advising doctors not to sign people up to the program because of the problems of smoking cannabis. It doesn't identify edibles at all, and that's completely illogical and counterintuitive, that you would, again, you know, have such an emphasis on smoking, and -- and -- and make any alternatives to that illegal. And -MR. TOUSAW: And so you write to Health Canada, and we have gone through a series of letters. I won't refer to the February 3, 2005 letter again, so you can return that. Before we broke we'd taken you through a letter that you wrote to Ms. Susan Fletcher in January of 2006, which is marked as Exhibit 9 in these proceedings. I'm now, My Lord, going to hand up what appears to be the -- well, what is the response to that letter. It says so on the first full
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sentence. And that's a letter to Mr. Smith dated February 24, 2006, this time from a Ms. Beth Pieterson, who is identified on page 3 as the Director General, Drug Strategy & Controlled Drug Substances Program of Health Canada. And I'll ask that that letter go in as Exhibit 11. COURT: Any objection, Mr. Eccles? ECCLES: No, My Lord. COURT: Exhibit 11. TOUSAW: Thank you, My Lord. EXHIBIT 11 (on voir dire #1): Letter to Leon Smith from Beth Pieterson dated February 24, 2006
MR. TOUSAW: Q Once that's marked, Mr. Smith, I'll ask that it be put in front of you, and I'll ask you the same question of whether you recognize it, what it is. A Yes. This is the letter that was written in response to the -- the last letter. Not the last one I spoke of just a minute ago, but -Q Exhibit 9? A -- before the break. Exhibit 9. Q It appears that the first page and first half of the second page of Exhibit 11 is essentially an explanation of the regulatory amendment process of Health Canada; is that accurate? A Yes. One of the questions I asked was how amendments or changes to the MMAR are made. I was aware of, you know, court decisions that had changed the MMAR, but I was hoping that the public would have a means by which to introduce amendments or suggest amendments. And so this was the answer that I was given, which really was accurate, but the ability for input into this decision making process seemed pretty questionable. You know, I looked up most of the -- the documents here, and have copies of the ones that are -- are referred to, like the regulatory policy, and stuff. But, yeah, it was far beyond our ability to engage in those activities. Q The middle of page 2, really the first full paragraph, it doesn't contain a cite to the internet, begins, "The second question relates to cannabis resin," and appears to quote a question
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that you put to -Mm-hmm. -- Health Canada. And then there's a response; the next two paragraphs are a response to that question. What's your understanding of the meaning of Health Canada's response to your question about whether licence holders should be told that they can be arrested for producing resin or THC if they try to? Well, they don't really even answer my question. They really seem to have cut and paste some paragraphs from other letters talking about how cannabis marihuana is -- is available in dried form, but it does not include cannabis resin. It -- it doesn't talk to my question at all about advising people with licenses that they are at risk for making extracts. I've seen the forms in all their various versions, and there's never been a warning or a suggestion that producing derivatives was illegal. They are just not included in the paperwork. Again, which is why we were surprised in 2005 to find out that these derivatives and resin were illegal, because it had simply just been left out of the picture at that point. They hadn't said good or bad. But they had suggested in various ways and through the media that, you know, edible cannabis was okay. And in fact the forms now have a box on them where you can check off that you're using it orally as opposed to inhaling it. There's two boxes, and, you know, it strongly implies that, you know, you are allowed to -- to make an oral preparation out of it. But there's absolutely no warning in that paperwork, and nothing here addresses that. They just simply say that they allow cannabis marihuana. To be fair to the response, I'll direct your attention to the last full sentence of the penultimate paragraph that begins [as read in]: In addition, the information material provided when an authorization to possess a licence to produce is granted clearly states that the authorization or licence does not apply to any derivatives of marihuana, such as hashish, hash oil ...
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Or et cetera. Okay. So that does appear -That comes with the forms, that's right, once you've gotten your application to possess. I -- so -- but it doesn't say anything in those forms about edible cannabis. Q This -- this -A But you're right, to be fair, you're right, they do address the question of hash. Maybe I should see Exhibit 9, because I don't think that was even -- I'm not sure if that was the question I asked, exactly. But certainly when I asked the question in Exhibit 9, it was directed towards edible products. Maybe it wasn't in the quoted question, but -MR. TOUSAW: Just, My Lord, for purposes of saving time, Exhibit 9, page 2, the partial paragraph, but the first full sentence does appear to be part of the quote that Health Canada responds to in Exhibit 11, and reads [as read in]: A Q A If cooking with cannabis is illegal, should Health Canada not tell licence holders they can be arrested for producing cannabis resin, aka hashish or cannabis (THC) (if they try). A Q A Q A That's right. And of course the documents speak for themselves, but -Okay. Yeah, I -But that cooking with cannabis piece appears to be left out of the quote. And I would suggest very intentionally, because that was what I was trying to address in my letter, and, you know, I was talking about it, and then it was -- it was left out of my question and then left out of the answer. The statement by Health Canada in Exhibit 11 that essentially derivatives of dried marihuana are unlawful, even under the MMAR, that comports with your understanding of the legal regime? Yes, it does. And the final question you asked, as set forth in Exhibit 11, is research, and it just appears on page 3 that they respond to that question. What's the response?
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Well, the response is that they have not conducted any information or -- or research on cannabis resin, and that an extensive review of their existing literature failed to uncover any research about cannabis resin. And so that, you know, led me to a couple of conclusions. For one, in the last letter -- or actually the last two letters I wrote to Health Canada I referred to a book that cites various studies. Maybe they haven't met the, you know, peer review standards that Health Canada would -- would prefer, but those studies do exist, and they are out there. This is the most studied plant in the world. There's never been a -- there's no other plant that's had so many studies done on it. And so for them to say that an extensive review showed no studies is a really hard statement to swallow. They should be able to find that information. I referred them to the books, but they'd refuse to -- to -- to consider that. But at the same time, in the letters before, they were more than happy to state that there's evidence of risk, and there's no basis for that. They're stating that there's, you know, a potential or a concern that -- that using cannabis resin and these derivatives is more concentrated and -- and somehow the dosage levels are harder to -- to manage, and that's just not based on reality. And when challenged to -- you know, well, where is this information, they said they have no information. I take it from your tone that this caused you some distress. This causes me serious distress. Not -- not so much for myself, but for the plight of others. I've seen, myself, you know, through, you know, people, you know, let them turn around in their lives, and -- and be healthier and -- and live longer. And, you know, we've helped, you know, a lot of people get off of -- or cut down on -- on their use of prescription drugs, and feel better, and sleep better, and I -- I -- you know, and -- and the irony, you know, is -- is really disturbing to me, that, you know, we would, as a, you know, society understand that, you know, cannabis is -- is good medicine, but then keep the most potentially beneficial parts of it away from
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patients. I just can't comprehend that. And so you ultimately write back to Health Canada, is that correct? I certainly do. -TOUSAW: Well, no -- I'll have no further questions on Exhibit 11. Thank you. My Lord, the next document I'll hand up is an August 1, 2006 letter from Mr. Smith, this one addressed to the Honourable Tony Clements [sic], Minister -- then Minister of Health for Canada, and I'll ask that that be marked as Exhibit 12. COURT: Any objection? ECCLES: It will go to weight, My Lord. COURT: Exhibit 12. EXHIBIT 12 (on voir dire #1): Letter to Tony Clement from Leon "Ted" Smith dated August 1, 2006
MR. TOUSAW: Q Mr. Smith, when that Exhibit 12 is before you, I'll again just ask you if you recognize that document, and ask you to describe it for His Lordship, please. A Okay. I recognize the document as the letter that I wrote in response to, I believe it was Beth Pieterson's. I believe that at this point the Conservative government had grabbed minority, and that was the reason I switched from writing letters to the bureaucrats who had responded back to the -- the Minister for Health Canada, so hence writing straight to Tony himself, instead of to -- to Beth. And in doing so, yeah, I provided copies of our newspaper and other things about our Club to -- to catch him up to date, in case the file hadn't been brought to his attention before. Q And those, those attachments that you reference in paragraphs 1 and 2 in Exhibit 12 are not attached to this version of the letter that's been introduced in evidence in the proceedings, but it appears, from what you say at paragraphs 1 and 2, essentially it consisted of the prior correspondence reproduced in a newsletter format, as well as the letter from the Mayor of Victoria, the then Mayor of Victoria, to -- to Health Canada, which has been introduced -A Yes.
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-- as evidence in these proceedings, is that correct? That is correct. As I said, one of the other avenues that we sought was to seek shelter with our City government as much as possible, and so the City in fact had a meeting with the Health Canada official, and was brought up to speed as much as possible before writing that letter. So we were really trying to get the City of Victoria and Health Canada to talk about the, you know, issue here of medical marihuana. So I wanted to include all of that information as well. In the fourth paragraph of Exhibit 12 you return to the question posed to Health Canada that we discussed earlier -Mm-hmm. -- and return to the issue of the first portion of your question which appears not to have been reproduced in Health Canada's response, as is set out in Exhibit 11. And what are you asking here? Well, again, I'm -- I'm coming back to this critical point that Health Canada does not inform people of their potential for prosecution for making food and skin products. It was omitted in the response. You know, they -- they took that part out of my question, and it was something that I -- I don't believe ever was -- was properly responded to. But it to me seems almost like a set-up, that Health Canada would give people a licence and then not let them know that if -- if they turn it into a cookie, that -- that they would be, you know, essentially producing a drug. So I try to ask that question again. But -It appears that much of the remainder of Exhibit 12 consists of essentially what you testified to earlier with respect to your feelings about Ms. Beth Pieterson's response as set out in Exhibit 11 -Mm-hmm. -- regarding the edibles, as well as the research issue. Is that a fair summary? That -- that is a fair summary. And this letter to the Minister of Health for Canada provokes a response back to you, does it not? Yeah. I -- I believe there may have been -- is
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there one or two more letters? I kind of get lost. Yes, there's certainly a response to this. TOUSAW: I'll have no further questions with respect to Exhibit 12. But, My Lord, I will be handing up a letter from a Susan Russell in the Marihuana Medical Access Division of Health Canada, dated September 26, 2006, addressed to Mr. Leon Smith, and ask that it be marked as Exhibit 13. COURT: Is there any objection? ECCLES: No, My Lord. COURT: Exhibit 13. TOUSAW: Thank you, My Lord. EXHIBIT 13 (on voir dire #1): Letter to Leon Smith from Susan Russell dated September 26, 2006
MR. TOUSAW: Q And, Mr. Smith, when that's finally marked I'll ask you the same questions with respect of recognizing it and what it is. A Yes. This -- this was the letter that I got in response. Q And I'll direct your attention to paragraphs 2 and 3, and ask what your impression was of the response from Health Canada, as set out in those paragraphs. A Well, the first sentence in paragraph 3 was quite surprising. None of the other letters said anything like that. Q And this is -- perhaps just for purposes, My Lord, this is -- this is in which -- this is the sentence beginning [as read in]: That being said, the intention of the Regulations was never to allow individuals to make resins or hash oil, because this is a process which would take place prior to the plants being dried. A Yes, yes. That statement had not been made, nothing like it at all. And it's quite surprising, and troubling in some ways, because it's simply inaccurate. I'm not sure, again, where they're getting their information about these things, but to make
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what's called hash oil, or, you know, the other kinds of hash that are traditionally made, I would say 99.9 percent of the time the product is dried first. Certainly the kief that I've talked about that we sell that is sold as hash is dried hash, you know, kind of put over a screen, or -- or they have tumbling machines that will, you know, bounce it around and force the crystals to fall off and through a small screen. And that has to happen when it's dry. There's no other way for it to occur. I -- I would imagine that there -- there may be some people out there that -- that make a lot of these products, that -- that might, you know, cut the plant down and -- and make products with it, but my understanding is that the curing process is still ongoing after it's cut down, and that the essential oils on the plant, you know, don't really come to fruition right away, and that it's best to let it dry in order for it to gain its full potency. So there's no rhyme or reason to suggest that any preparations made out of cannabis are done prior to the plant being dried. It's just completely unheard of. So where they got their information that, you know, resins or oils are made before the plants being dried, I just don't know where that would come from. I don't think that's historically true. Like, if you look back into any of the hash making techniques from Morocco or India or Afghanistan, in all of those circumstances the plant is dried, sometimes even in the field, and left to dry out in the field, so that when they -- they take it up, they beat it, and you can see in -- in video or movies, like, you know, these piles of dried kief, and -- and hash. And so, you know, again, there would be no historical literature that would suggest that resins or hashes or any cannabis products are made when it's still wet. People are now starting to juice, so there is a new sort of way that cannabis is being consumed now that people are benefitting from, where they're just juicing the plant. And so that, though, you know, again, unless it was juiced up to a fine pulp, if it was extracted at all, like most juices are, right, like, most of the time
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when you buy juice in the store it's -- you know, the drink's separated from the pulp, again, you know, that would be, you know, illegal. But that's something that has only been happening in recent years, as people have had enough plant material around that they feel they could experiment with what would normally produce, you know, or be used in much smaller quantities. But that's the only time that I know of where cannabis is being made into a product before it's being consumed [sic]. So that statement there has no historical basis; it has no scientific basis; it has no basis in reality, from what I can see. And I'll direct your attention to the next sentence, that begins with, "As long as ..." What does that say, and how does that affect your understanding of what Health Canada is saying about the permissibility of what occurs under the program? Well, there was nothing like that sentence beforehand either, and that is even more surprising than -- than the first sentence, because they're basically saying that everything that we're doing is fine because it was a dried plant first. And I have no idea why they would draw that line to say once the plant's been dried you can do anything with it. It seems to be a completely arbitrary decision to make. Like, why dried plant material? It just doesn't -- doesn't make any sense at all. But what they're saying is, as long as the plant is dried, and as I say, like, you know, we want it to get dried before we get it, because one of the greatest concerns we have is for mould. The cannabis plant, like plant materials, moulds very quickly when it's moist, and certainly the smoked product is one that we do everything we can, we do inspections for mould, we're -- we're right on it, because the worst thing to -- to do for smoking is to smoke a mouldy substance. So we're really onto that. And again, with our leaf that we use for the cooking, you know, we absolutely cannot afford to have any mould in there at all. So, you know, that's something that -- that we're looking for. So again it's kind of bizarre that they would think that, you know, a -- as long as it's dried
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first, which is, you know, everything we have we try to dry it first, well, then, everything after that's acceptable. So that in some ways to me was -- was -- was an answer that was quite acceptable, if I could, you know, live off that little sentence there for -- for, you know -- or work on that for the Club, then what we're doing is completely legal, because we've dried everything first, and Health Canada says that's okay. But I still don't think that that was their intent in what they said here. All right. I don't want to you speculate -But --- on the intent of the author. But that's my -- my thought. Just your own reaction -Yes. -- to it. TOUSAW: Okay. I don't have further questions on Exhibit 13, My Lord. I will ask you, Mr. Smith, do you then write back to Health Canada? Oh, I certainly do. I think one final time in these volleys. TOUSAW: I'm going to hand up, My Lord, a two -- sorry, three-page letter from Mr. Smith to Mr. Clements, the Honourable Minister for Health of Canada at the time, dated January 3rd, 2007, and I'll ask that that be marked as Exhibit 14 in these proceedings, subject to my friend's objection to weight, which I take it is likely to exist. COURT: Mr. Eccles? ECCLES: Sorry, what's that, January 3? TOUSAW: January 3, 2007. Yes, that's the one. ECCLES: Same objection as always, My Lord. Goes to weight. COURT: Exhibit 13? Fourteen. TOUSAW: Thank you, My Lord. EXHIBIT 14 (on voir dire #1): Letter to Tony Clement from Leon "Ted" Smith dated January 3, 2007
MR. TOUSAW: Q And when that's marked and before you, Mr. Smith, I'll ask you the same questions.
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Thank you. Yeah, this is the last letter in this volley. At least the last I wrote. I believe I got a response to this one from Ronald Denault. Well, let me ask you first in terms of the contents of this letter, it appears to reflect in many ways what you just testified to regarding your sort of response to what you had read from Ms. Susan Russell in the letter that's been marked as Exhibit 13. Is that accurate? That is accurate. As you can see in paragraph 4, I again refer to the book, Women and Cannabis: Medicine, Science, and Sociology. That has several studies, and refers to several other studies in there. You know, there's many reference studies in that book, and they talk specifically about cannabis resin and -- and edibles in that. And so I -- I, you know, made the attempt to get them to look at that information again. It seemed like they were making things up as they went along to -- to suit their argument. It didn't seem like they were basing their argument upon any real information or evidence. So I was trying to refer them to what I considered to be the best information on the subject, because I seek that out. I've got a nice library, have a couple hundred books on the subject, and, you know, I look for information as much as possible, you know, current information. You know, I'm constantly seeking out, you know, what is -- is happening, and -- and with, you know, this particular issue, the use of cannabis resin and extracts, this book is very useful, you know. And so it was, and still is quite disturbing to me to think how little real information Health Canada has on the medical uses of cannabis. So, yeah, that was I believe the gist of this. I also talked again about a research project; I didn't mention it, it's in some of the letters, but we have worked on a cost benefit analysis at the Club, sort of trying to compare the use of cannabis to prescription drugs for our members. Been a very difficult study to do. It's not been scientific, in some ways. It's been far too broad. And right now we're actually getting ready to do a double blind study on the Ryanol and the Stalkanol product. But we've been trying to do
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our own research, and have asked for assistance in that. And I note at the last full paragraph, page 2 of Exhibit 14, you -- you make an inquiry about the granting to you, as well as other legitimate compassion clubs, in Exemption 56. Without getting into -Yeah, I start on paragraph 5 on page 2. TOUSAW: No, right there. Yeah, sorry. ECCLES: It's not a full paragraph. TOUSAW: The last partial paragraph of page 2 -Okay. -- my friend has -ECCLES: I was reading -TOUSAW: -- pointed out to me. Yes. TOUSAW: Yes. Again -ECCLES: I'm reading the one above. TOUSAW: Yes. -- I -- I don't think I -- I brought it up, but it was in an earlier letter, where I was requesting for the government to consider granting our club an Exemption 56 from the Controlled Drugs and Substances Act. I believe that it was that mechanism that was first used to give individuals access to cannabis, and unfortunately that program wasn't good, in the eyes of the court, and it was struck down, and that was when the MMAR was. I don't want you to testify to -Okay. -- legal decisions. But I was aware of the Exemption 56 process because of that, and I -- I'm not sure when Insite started, but I think the Insite in Vancouver started around the same time, and they used the Exemption 56 in that, which was what really I think clued me into the idea that that was the mechanism in law that we should be seeking for. So we've asked city council for this exemption, and otherwise have sought it out in letters to -- to the Minister of Health, but we've been flatly refused. TOUSAW: I have no further questions about Exhibit Number 14. The next document, and I'll have to ask the
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witness if this is a complete copy or not, because again it's one page -No. TOUSAW: -- without a signature block at the bottom. Appears to be a letter dated December 4, 2007 from, I believe Mr. Smith to Mr. Tony Clements dated December 4, 2007, following up on the January 3, 2007 letter. Do you know, Mr. Smith, if there's a second page to this December 4, 2007 letter? Those are the two that were within a month of each other? One was January 3, 2007. One was December 4, 2007. So towards the -Okay, no. -- end of the -- that year. Trying to -- without seeing it, I'm not sure which letter that -TOUSAW: Could I put it in front of Mr. Smith -COURT: Of course. TOUSAW: -- My Lord? I'll just hand a copy to Mr. Smith, ask you to look at it. Oh, okay. What -- what happened here was -- this is what I thought. The January letter didn't receive a response. I'm not sure if there's a page 2 to this, though. I would assume there is, because I would have put my name to it. But this was really trying to get a response to the January letter. But there probably is a second page to this. I'm terribly sorry I didn't get that in there. TOUSAW: My Lord, I'll ask that this go in as Exhibit 15, subject to Mr. Smith seeking over the break to determine whether he has a second page. But it does, at least for the purposes that I seek to introduce it, it does seem to be -COURT: I think it's probably better if we mark it B for identification. If you can find the second page, we can deal with it then, but [inaudible] to admit as an exhibit only part of a letter. TOUSAW: Yes, My Lord. Sorry about that. EXHIBIT B for identification (on voir dire #1): Letter to Tony Clement on International Hempology 101 Society letterhead dated December 4, 2007
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MR. TOUSAW: Q Mr. Smith, moments ago you described what's been marked now as Exhibit B for identification in these proceedings as a follow-up letter to yours dated January 3, 2007, which is marked as Exhibit 14 in these proceedings. Is that essentially what you're doing with this letter? A Yes. The first letter hadn't been responded to, and we waited for -- for a while and decided that, you know, we should continue to -- to try and get some answers out of Tony Clements. MR. TOUSAW: I don't have any further questions, then, My Lord. I'll just hand up the last letter in the sequence, and this is from Health Canada, signed by Ronald Denault, Manager, Medical Marihuana Access Division. Three pages, bears the stamp across the top, 2008-06-03. Appears to be a June 3, 2008 letter. I'll ask that that be marked as Exhibit 15. THE COURT: Madam Clerk. MR. ECCLES: Same objection. They all go to weight, My Lord. MR. TOUSAW: Thank you, My Lord. EXHIBIT 15 (on voir dire #1): Letter to Leon "Ted" Smith from Ronald Denault dated 200806-03 MR. TOUSAW: Q This -A [Indiscernible]. Q Can you recognize this letter? A This is the last letter in correspondence. I didn't write back to this right away. I had become rather frustrated with the process, and didn't seem to be getting the answers I was looking for, and I -- I believe, you know, it was, you know, in my thoughts when the bakery raid happened, but after the bakery raid, it seemed that writing letters to the government wasn't the way to go, and that we should just wait for court to occur. Q I'll direct your attention to the third paragraph of Exhibit 15, and in that paragraph Mr. Denault indicates that he's clarifying some previous correspondence on the issue of marihuana resin, and the second full paragraph reads [as read in]:
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Activities such as producing marihuana resin or tetrahydrocannabinol (THC) by extraction with chemicals or other substances are outside the scope of the Marihuana Medical Access Regulations (MMAR). A Q Did you see that sentence? I cert -- I certainly do. Is that -- was that consistent with your understanding of what Health Canada indicated to you in Ms. Susan Russell's letter of Exhibit 13 in which it was indicated that as long as the plant is dried first, any preparations made after that are acceptable? It totally contradicted the letter that I got before, so I -- I find it interesting that he said he was clarifying, when in fact he was completely changing the story. Because the last letter we got from Health Canada said that, you know, cannabis resins were -- were produced before it was dried, and that anything done afterwards, once -- after it was dried is -- is fine. Her letter said nothing at all about extractions or chemicals or other substances, and -- you know, and that is new, in terms of none of the other letters that I've sent before said anything like that, either. Certainly that was what I ran up against in court, so I was familiar with that position from the Crown, but Health Canada had never said anything like that in their previous letters. Putting aside the inconsistency or what you say is the inconsistency with Ms. Susan Russell's comment in Exhibit 13, is that statement by Mr. Denault that activities such as producing marihuana resin, or tetrahydrocannabinol, by extraction, essentially with anything, are outside the scope of the MMAR, is that consistent with your understanding of the MMAR, as you sit here today? That is consistent, although I would say that it goes further, and that, you know, any extraction of cannabis resin -- because as I mentioned, the kief that we sell at our club, we don't use any extraction methods, except for putting it through a screen. So there's no chemicals or solvents or anything like that being used at all. And so there's -- you know, cannabis resin is outside the
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scope of the MMAR, even if it's produced in other ways than using chemicals or substances. But that is my understanding of the, you know, MMAR, that again the dried plant is -- is legal, but somehow any other preparations or -- are illegal. MR. TOUSAW: My Lord, I note the time. I don't have further questions for Mr. Smith, subject only to hoping to find the second page of Exhibit B for identification. THE COURT: All right. We'll stand down. We'll see if we can find page 2 of B. THE CLERK: Order in court. (WITNESS STOOD DOWN) (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS) (PROCEEDINGS RECONVENED) THE CLERK: Order in court. LEON EDWARD SMITH a witness called for the Accused, recalled. MR. TOUSAW: My Lord, we've located page 2 of what has previously been marked as Exhibit B for identification, simply a signature block and a, "Please call me if you have any questions," line. I'd ask that page 2 of that be appended to Exhibit B for identification, and then marked as the next exhibit in sequence, which would be Exhibit 16. THE COURT: So this is the December 4th letter? MR. TOUSAW: That's correct, My Lord. THE COURT: Any objection, Mr. Eccles? MR. ECCLES: No, My Lord. THE COURT: That is Exhibit 16, 15 being the Health Canada response of June 3rd. EXHIBIT 16 (on voir dire #1): Letter to Tony Clement on International Hempology 101 Society letterhead dated December 4, 2007 (was Exhibit B for identification) MR. TOUSAW: And with that, My Lord, I have no further questions of Mr. Smith. THE COURT: Mr. Eccles.
140 VOIR DIRE Leon Edward Smith (for Accused) Proceedings
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Thank you, My Lord.
CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: Q Now, Mr. Smith, I take it you acknowledge that under the current state of the law in this country, and in particular the Controlled Drugs and Substances Act, the activities of the Cannabis Buyers' Club of Canada are not legal? You are not in compliance with the provisions of the CDSA when you sell marihuana out of your store; you are aware of that, correct? I am aware of the fact that we are violating several sections of the CDSA. However, I believe we are in compliance with the Canadian Charter of Rights and Freedoms, which I understand to be a higher authority. Now, a few years back there was a trial conducted in these courts, partially here and partially in Vancouver, of two individuals by the names of Mr. Beren and Mr. Swallow, correct? Correct. And you were present for a considerable portion of the trial conducted in this court, in this city, correct? I was in attendance for I believe all of the public court time, and the preliminary inquiry, and the trial proper, with the exception of the time period when my father died and I had to go to Ontario, and I missed a few days of testimony here. But I travelled to Vancouver so that I could be witness to all the days proceeding afterwards as well. I missed about three days out of what I think was a 50 odd day trial. Sixty-five, but who's counting. Now, you were present when a gentleman by the name of Philippe Lucas was on the stand, correct? I believe I saw all of his testimony. And he is the individual who founded and plays a very large role in the Vancouver Island Compassion Society, as it's titled, correct? Yes, he is. In fact I almost gave the Cannabis Buyers' Club to Phil in the summer of 1999, until I found out that his mandate was such that the majority of my members, or the members of our club would have been turned back to the street, because he was wanting to start a club in a store that
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141 VOIR DIRE Leon Edward Smith (for Accused) cross-exam on voir dire by Mr. Eccles
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would require doctors' recommendations and -- and cooperation in a way that the majority of -- of our members didn't feel that they could gain entry to. And so I -- I found it very unfortunate that his -- his mandate was so much more conservative, and that I couldn't just give it up to him. When you speak of his mandate, you recall, and you're aware from your own interactions with Mr. Lucas, that the Vancouver Island Compassion Society has certain requirements for applicants regarding provision of a signed note of some sort from their treating physician, correct? Yeah. They have their own forms that they generally require people to take to their physicians and have signed, and the cannabis is recommended to be used, very similar to Health Canada's, you know, forms and the requirements, with a recommendation from the physician. And from your experience as founding and, for lack of a better word, being the directing mind of the Cannabis Buyers' Club of Canada, you're familiar with some of the other, what are frequently called compassion societies in the province, correct? Oh, in fact I've gone out of my way to see as many clubs in operation as possible, including in Ontario, where I'm from. I've checked out several clubs in Ontario. I've probably seen at least 20 storefronts in Canada. Sometimes clubs like the Compassion Club have moved from various locations, so I've gone and seen, you know, how they operate, how the set-up is, what their mandate is, how their board of directors is formed, if in fact they have one, and -- and what products they have, and -- and try to share as much knowledge as I could. And so I was certainly quite aware of what was happening with the VICS in the earlier days. Now, in Vancouver, probably the largest compassion club, at least that I'm aware of, is what's called the British Columbia Compassion Society. Mm-hmm. Correct? Yes. And the name escapes me, but do you remember the -- the individual who was sort of the founder and -Oh, Hilary Black is her name. Yes, thank you.
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Yes. Now, the British Columbia Compassion Society has a similar mandate regarding memberships of the society; they require a doctor's note, don't they? They have -- similar mandate to us, you mean? They have -No, I meant to the VICS. No, actually that's not true. Oh. The B.C. Compassion Club's mandate has been essentially the same as ours, but they do have forms that they generally would, you know, try and have filled out, but if a person was able to, you know, prove to them that the forms couldn't get filled out, then proof of condition is sufficient. And so the B.C. Compassion Club has the very, you know, same mandate as us. In fact, they may have in some areas a more expanded mandate, with some of the medical issues that -- that they would help with, in terms of some mental health issues. I'm not exactly positive, but I -- I believe, for example, a diagnosis of post-traumatic stress disorder might be a qualifying condition to join the B.C. Compassion Club. And that wouldn't be a qualifying condition for our club. COURT: Is all of this, what I take to be pure hearsay, admitted for the -- by consent for the truth of its contents? TOUSAW: I have no objection to the -- the questions asked or the responses given thus far without waiving the right to make objections if -COURT: That doesn't say that I can accept it for the truth of its contents, Mr. Tousaw. TOUSAW: I'm content to have what's been testified so far accepted for the truth of its contents. COURT: All right. TOUSAW: I suppose I should say that -- I'm not concerned currently about the line of inquiry. It does seem to stray beyond direct, and -- and into areas that I'm not entirely sure are relevant. But I'm content to see where my friend's going with it. ECCLES: From your experience attending various compassion societies in this province and in Ontario, I take it you would agree that the mandates of such societies can differ; they have -- they can have
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differing criteria for admission and access to the products that the societies offer their members? A Oh, in fact because we don't have regulations or standards to go by, we are all doing it in the way we see fit, in -- in a sense. It's not something that the government or any body has, you know, given clear and precise rules. The B.C. Compassion Club and the VICS did put together a document a few years ago that were basic guidelines, but I tell you, they're very basic, and so there's a lot of detail left out of that document that one would have to figure out on their own. And, you know, there are certain, you know, general mandates that are being almost copied from one organization to another. There's been a proliferation of clubs in the Lower Mainland in the last few years that have very similar mandates to the Vancouver dispensary, and so in recent years there's been somewhat of a standardization. But certainly across the country there's a lot of nuances that, you know, really come down to a doctor or some qualified health-care practitioner confirming that an individual is dealing with a medical problem of some type. Some clubs have more accepting mandates with mental health issues, such as post-traumatic stress disorder, like I mentioned, and there are some clubs like the VICS that are more conservative and much more in line with Health Canada's program. Q And whilst the VICS is, as you've described it, more conservative and more in line with Health Canada, they're not legally recognized as being lawfully entitled to sell marihuana to members of the public? THE COURT: By whom? MR. ECCLES: Q As far as you know? A Oh, as far as I know, none of the clubs across Canada have got authorization in any sense from Health Canada to sell their products, beyond what is allowed as -- as a designated grower. I know many of the clubs will take advantage of the position of a designated grower, such that some of the staff and growers will provide legally to really a small handful of members of their clubs.
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So in some cases it is in accordance with Health Canada's licences and -- and rules, but the -- the, you know, vast majority of interactions between clubs and members are, you know, for all intents and purposes, illegal, according to the Controlled Drugs and Substances Act. But like I say, many clubs like mine have gotten a legal precedent, where we've been granted acquittals, or charges been -- been thrown out in court, and so we have case law precedent that seems to suggest that our activities are not unlawful, given the nature of them. And you're also aware, I take it, from your interest in this area that the law is in -- changes, it develops. There are amendments to the federal program, challenges, amendments, and response, challenge and response; that's how the program reached the point where we're at today; is that your understanding? Health Canada's program has been carved out in court. I -- I don't think there have been any amendments made that hadn't been forced upon them by a court. And I -- I was actually invited in September to a meeting with Health Canada over proposed new amendments that are coming in the future, but -- and I found it quite ironic that Health Canada would invite me to a meeting to discuss proposed amendments that still wouldn't give us a licence, so they were asking us to approve their -- their changes, which would still leave us subject to -- to prosecution. Now, with respect to the CBC of C, I think we're referring to it, to shorten our transcripts, I guess, the CBC of C has members who hold licences from Health Canada under the Marihuana Medical Access Regulations, correct? Yeah, I would imagine we have several hundred members with licences. We don't keep track, but we strongly encourage people to sign them, and I would imagine it would be well over 200, two to four hundred. Of how many? Thirty-seven, thirty-eight hundred. I was thinking about the numbers. It's probable, you know, more like 4,000, but we don't have an exact number, because while our cards are numbered, we've given out, like, 4,800 something, a certain
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number of them are re-issued cards. Because if somebody loses their card, we destroy that number and re-issue a new card with a new number. So that's why when I was being asked yesterday again it's like I -- the exact numbers escape me. But, yeah, we have roughly 4,000 members. Of whom two to four hundred are licensed under the government's program -Yeah. -- as a guesstimate, correct? Five to ten percent is a good guess. Now, those who are licensed under the federal program, the Health Canada program, you've mentioned assisting individuals in completing forms, correct? Oh, very much so. Yeah, from the very inception of the program, we have encouraged people to educate their doctors about what they believe the cannabis is helping them with, and to get legal protection from the law. One of our primary concerns as a group has been to protect, you know, vulnerable sick people from the law, and if we can help them get a licence so that it's -- their medicine isn't going to be taken by a police officer, we'll do every we can to do that. Like I said, we would do that for members of the public walking in the door. They don't have to join our club in order for us to help them with that. And from assisting your members or any member of the public who comes in and wants assistance, you've reviewed the various forms that need to be completed, and you have some familiarity with the form; is that fair to say? Oh, I've filled the forms out myself for people. We have people that illiterate, people that can't see, you know, people that are so disabled they can't sign stuff. So in those cases we actually physically fill the forms out for them and prepare it so that the doctors just have to put their signature on it. So I've been familiar with the forms, not only filling them out, but, again, you know, doing the sign-ups. Until a couple of years ago I -- I tried to do all the sign-ups myself. It was a really good opportunity for me to meet the new members and explain fully who we were. And so I -- I have myself given, gee, 800, maybe a
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thousand, to people, you know, directly, probably. Maybe -- maybe not 800. I don't know. It's hard to say. But a lot. Hundreds and hundreds of these forms have gone out our doors. Thousands. And throughout the years you've been assisting people and completing these forms, consistently the forms have required the treating physician of the applicant to sign off on the form, to confirm that it's appropriate for this individual, medically, to use marihuana as a medication? Yes. Except that the forms have slightly changed. And now if you read Health Canada's forms, it's almost more a confirmation of diagnosis than it is a doctor's recommendation. But certainly, you know, the doctors have had to comply and -- and, you know, essentially, you know, agree, knowing that the, you know, form was going to give these individuals access. You yourself have not attended medical school, correct? No, I have not. No medical classes at all. I actually was really bad in science. Now, the cannabis, the CBC -- I'll even shorten it, just the CBC -- not meaning any disrespect to our venerable institution -- the CBC does not require a signature of a doctor for an individual to become a member of the Club; am I correct in that? That's the gold standard, but it's not the -- the only kind of information that could qualify a member to our club. As I said, we would take for example a blood test, if someone came in, you know, with a -- a blood test where it's, you know, being -- the test has been sent to a doctor, and it's come from a laboratory, and it's very clearly stating that the person has been, you know, tested positive for HIV. And cancer would be another, I guess, situation. There's been even the rare occasion where someone would come in with prescription bottles and their name on it, and we would look up the prescriptions, and if it were the case that those prescriptions were for, you know, very specific medical problems -- there's a lot of obscure medical issues out there, and we would, you know, and have, but honestly, this would be out of the 4,000 members something I've maybe done three or
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four times, and we would, you know, take it that the -- the pill bottle was in essence confirmation of a diagnosis. And in those cases we would ask for supporting documentation to come later. That would often be the case if we -- if someone came in with, you know, a form that, you know, was very conclusive, that, you know, they had some kind of, you know, chronic pain issue. But if there was any question at all over its authenticity or -- or -- not necessarily authenticity, because I don't think we've had any, you know, forgeries, to my knowledge, but more a question of whether the diagnosis fit our mandate or not, they would either be put on -- on hold until they got more information, or in some cases we have admitted them into the Club with the paperwork that they show up with, and upon their second visit they would be required to show more supporting documentation. It's been something that we've considered it very important, to help people when they get to the door and not to put further barriers in front of them. From what you're saying, I take it what you don't require of an applicant is they bring their entire medical chart? Oh, no. If an applicant were to come in with, for example, a complaint of suffering chronic pain for years, and two X-rays indicating that on at least two occasions, plus a diagnosis to this effect, they've broken their back, and as a result they have chronic low back pain, would that be an individual -- would that be sufficient for them to secure membership? It would. Back pain is a perfect example that I often use. You can have back pain that is muscle related that is not incurable, with proper stretching, exercise, you know, using your back properly. And I have this recurring problem myself, from playing rugby. I have an old rugby injury in my lower back that will occasionally come back, if I've done something wrong, where I've extended myself in the wrong way or done something. And that's not incurable. I get my back back into shape, you know, often. And now actually it's quite strong and healthy; it's not
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hurting very much at all. And so that would not be a qualifying medical problem. If, though, a person's back muscles are contorted so much that it essentially grinds the disc together and causes a degeneration of the disc to the point where there is actual permanent physical, you know, disintegration of their disc, essentially, whether they get diagnosed with degenerative disc disease or not, if they can, you know, show us that they're being diagnosed with, you know, chronic pain as a result of, you know, discs that are collapsing, well, that would be sufficient. So that's actually one of the -- the grey areas that often the staff will refer me to. They -- if it's a cut and dry case, and somebody comes in with very clear information, they'll sign them up, but if there's a question at all of -- of whether the information is written in a way that is strong enough for us, then I -- I get a phone call, and if I can't figure it out over the phone, I'll have that information copied and -- and -- and then I'll get back to the person, and -- and let them know whether or not I -- I agree. Most often I will make up my mind, you know, on the spot. Again, not based on medical information that I learned in school, but based on things that I know online, based on what I know. I will often refer to -- to my partner, Gayle, who's quite knowledgeable. She's been a nurse, and stuff. So I -- I try as best I can to determine if in fact the condition is a permanent incurable problem. That's the threshold that people have to meet. And if they meet the threshold in relation to a back injury or chronic pain condition from a degenerative joint problem, that's sufficient for them to secure membership? Yes, it is. What if anything do you require individuals provide you in relation to their psychiatric history? We don't ask if the members have multiple barriers. And would an ongoing diagnosed mental health issue constitute as a barrier? I don't understand that,
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your use of the word "multiple barriers". Oh, multiple barriers, if they have a -- drug problems or mental health problems. I understand some of the terminology used in -- in the social sciences would refer to people that have, you know, drug addictions and/or mental health problems as having multiple barriers. And -So we don't ask, you know, if people have other disabilities aside from the qualifying condition that they present. Sometimes that information is made present to us, in -- but it's not something that we require. We don't require, as you suggested, sort of their full medical information. We have assumed that when a person has a permanent physical disability or disease, that they have a medical necessity that should allow them opportunities to medical services based on that medical necessity. And if they've satisfied you of their medical necessity, you don't contact their treating physician to canvass with the treating physician that particular physician's opinion as to the suitability of cannabis as a medication? That's -Is that correct? That's correct, yeah. Now, earlier in your evidence earlier today you were mentioning -- I can't remember the fellow's name, the individual who put the hash oil in the fridge, and then decided that -Oh. -- to smoke a bit, and then -James Dure. James Dure. Dure? Dure, D-u-r-e. Now, you also -- I didn't get a very good note of this, but you mentioned that Mr. Dure seemed to have some issues with his grasp on reality, is what I interpreted what you were saying. Yeah. Is that correct? Very much so. I have documentation about, you know, various ideals that he has that are quite -- quite different from what most of us would think is happening in the world. Do you know what -- or did you know what
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Mr. Dure's psychiatric history was when you accepted him as a member of the CBC? No, I did not. How old was Mr. Dure? Oh boy. Roughly. Probably be about 45 at the time. How many members of the CBC are under the age of 20? We don't keep records. We don't have anybody certainly under the age of 18 right now. And we don't -- well, we keep records, sorry, but we don't keep records of people's birth dates, is what I meant to say. And so upon thinking about it, we may have two or three that are 19 or 20. But I -- I don't think that there's that many at all. And you're -- the answer I have noted, "Don't have anyone under the age of 18 right now." Yeah. You've had members under the age of 18 in the past? Yes, Your Worship. We've had I think three individuals who joined our club, all I think 17, and all of them had both written permission from their doctors and -- and recommendations from their doctors, and both parents supported their access to the Club for cannabis. In all of those situations the young person was using the herb as medicine, and it was a concern of the parents that they at least had a -- a safe supply, if they were in fact to go and do that. And so I believe that was why, you know, the doctors and parents were -- were supportive, because they both felt that it was helpful, and -- and they wanted to provide some assurances on the quality of the product and the legal risk that their -- their kids were taking. But, again, that's been three times in all these years, maybe four. Are you fam -Sorry. I take it you don't have a large number of teenagers who are members, then, and never have had? Oh, no, no. The vast majority of our members are -- well, I was going to say men, but it's
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certainly more women now. Initially it was -- it was a lot of, you know, older men that were coming in for different reasons. It's only been in the last few years that the percentage of woman has -- has grown. But certainly, you know, the average age of the members would -- would probably be, you know, 50, 55. Do you have -- do you keep records of the CBC Victoria's weekly or monthly sales? No, no. It's all cash, and, no, no records. We're not an incorporated society. You've indicated a concern as to the source of marihuana being expressed by parents. Do you as the -- for all purposes I'll call you the directing mind of the CBC; do you have concerns as to the source of the products you ultimately provide to your members? Oh, very much so. That's a very great concern to myself and -- and the staff, and obviously, you know, the members. And that's one of the reasons why I've done my best to get a roster of growers. I have about probably 20 houses, or people that are -- are growing medicine for our club, and to make sure that there's, you know, no moulds, and limited number of, you know, fertilizers. Like, that they use very little fertilizer, and no sprays, you know, for bugs, and -- you know, that otherwise it's -- I think it's -- I think it's pretty much all grown in dirt, by my growers, too. I don't have any hydroponic scenes going on right now. I have done some inspections, but those have been tricky. And I'm not a growing expert. I'm really a distribution -- well, maybe not expert in your -- yet, but that is my forte. And so, you know, I've -- actually we have now in place an inspection of the -- the buds that come in under -- under lights in the back room, because quality control is -- is of critical importance to us. And so one of our policies is a hundred percent return policy. If anybody has a problem with any of our products, they can return it, and we will replace it with something else. But it's very much a concern. And that way if there is a problem -- and particularly with the smoke products. We very, very rarely have had an edible product come back. But with the smoke product we
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have that policy. Now, you've mentioned a concern about mould. I've heard the expression, and have read the expression in the literature, aspergillus. Are you -THE COURT: Sorry, what was that? MR. ECCLES: Aspergillus. Q Are you familiar with that term in reference to a mould that can occasionally arise in marihuana? A You know, there's five different forms of mould that can occur in the cannabis plant, and I recognize that name as being one of them, but whether that's black mould or powdery mildew, or -- or sort of the redding mould that can occur, I -- I wouldn't be able to tell you that. I'm -- but it does sound like one of the -- the kinds of mould. Q And why the concern about mould? A Well, again, I'm not a scientist, but my understanding is that mould spores are among the hardest known organic substances on the planet. I understand mould spores and mushroom spores can live in interstellar space, they're such strong material. And so the smoking of these spores could potentially release them into a person's lungs, in which case they would, you know, be deeply inhaling them, and those spores would sit into their -- their lung, and possibly create, you know, bacteria and infections and such. And so that's the primary concern with -- with mould spores, and the -- and I've smoked a lot of mouldy pot myself, unfortunately, when I was very poor, and had a few crops go bad of outdoor. So I'm -- I'm very familiar with -- with the problems of smoking mouldy pot, and it can really harsh out your throat as well. Q Well, is it your understanding that it can do a little more than merely harsh out one's throat, if one has HIV/AIDS and a severely compromised immune system? It can be quite dangerous, can't it? A Mould spores would be, you know, quite dangerous. Which again is why it's of primary concern. Now, I should say mould spores in edible products aren't quite as big of a concern. You know, it's something that -- that is potentially problematic, but -- you know, not to say that we don't worry about it. We screen everything that we have. But it's not, you know, as -- as potentially dangerous Q
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as smoking mould spores would be for people with severely compromised immune systems. Now, less of a concern with edible products. Why would that be, to your understanding? Well, again, you know, the mould spores wouldn't be going into your lungs and creating infections, and my understanding is that that is the -- the primary concern with smoking it, especially with people with immune systems. And, you know, I just -- you know, my just general understanding, again, not based on any science or reading, but more based upon, you know, kind of my own history, even, because I did have some crops go bad in the '90s when we were growing them in the Clayoquot Sound, trying to get out of debt, and stuff, and, you know, I kept those -- that to myself. But, yeah, I -- well, yeah, I don't think we made any leaf products out of that, so, sorry, I shouldn't bring it up. I just never heard of anybody getting sick from having mould in their leaf in their cookies. Like, you know -- and we've never to my knowledge had mould in the leaf in the cookies. But it just doesn't seem to be intuitively as -- as dangerous. You know, penicillin is made out of mould, and -- or, you know, the raw form of it is, you know, an edible mould. So, you know, yeah, I -- I think we eat a lot of mouldy food in general, more than we might know, and I don't think that's as great of a health concern as smoking mould. In fact I -- I'd stake my reputation on it. And the reason you would stake your reputation on it is, hazarding a guess, I would say, predominantly the CBC sells cannabis in smokeable form? In my own experience. Like I say, I've smoked mouldy pot. I know how bad it is on the lungs, how bad you feel afterwards. And so I would have a hard time to think that, you know, a little bit of mould in -- in your food would make you feel as bad. That's, you know, like I say -I'll phrase that question again, because your answer addressed the last half of the question, so -Okay. -- I'll put the first half to you, which is on a
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proportionate basis the CBC sells more cannabis in dried form for smoking than it markets in edible product? A Yeah. Right now, sir, we're probably selling about 6,000, $6,500 a day in cannabis, the smoked product, and, you know, four or five hundred dollars worth a day in edible and topical products. Q And in relation -A Maybe not quite that much. Maybe three to four. You know, but, like, you know, certainly, you know, you know, ten percent of our sales would be in the edibles and topicals, and, you know, 90 percent would be in the smoked form. Q And your edibles and your topicals, having been to your website, on your website you have the CBC's cookbook, correct? A Yeah. Q It's in PDF format, click it open, and you can download every recipe, and go home, and if you've got the time and the energy, you can make the products that you sell in the store, correct? A We -- we strongly encourage people to make their own medicines with this plant. Again, if someone gets a licence from Health Canada, the combination of that and our product guide means that they can, you know, make the full complement of medicines that they -- they wish, and it also means that other clubs can review our operating procedures, and, more importantly, patients that live around the world can look at the, you know, best practices that we've designed, and -- and the health foods. And we do get correspondence from people, you know, that have read and used our -- our products. The topical products in particular are quite unique. We've really gone out of our way to make good topicals. And for the most part it's unheard of. You know, there's very few clubs that have that available. And so that is a very important resource. You know, it's something that we're quite proud of doing. MR. ECCLES: My Lord, I note the time, and I'm anticipating I'll be a while longer. THE COURT: All right. Ten o'clock tomorrow morning. And I should say, counsel, that we will need to take tomorrow afternoon away from you. So I'll be occupied in another matter tomorrow afternoon.
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MR. TOUSAW: Thank you, My Lord. MR. ECCLES: Thank you, My Lord. THE CLERK: Order in court. (WITNESS STOOD DOWN) (PROCEEDINGS ADJOURNED TO JANUARY 18, 2012, AT 10 A.M.)
Transcriber: R. Greenaway
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Victoria, B.C. January 18, 2012 THE CLERK: In the Supreme Court of British Columbia, Wednesday, January the 18th, 2012. Calling the matter of Her Majesty the Queen against Owen Edward Smith, My Lord. MR. ECCLES: May it please the court, Peter Eccles, E-c-c-l-e-s, appearing for the Federal Crown in this matter. THE COURT: Mr. Eccles. And I gather that Mr. Tousaw is unable to attend; he's snowed in in Colwood, or something. MR. ECCLES: That's my understanding, My Lord. I have received an e-mail from Mr. Tousaw at about 7:30 this morning advising that he didn't anticipate he'd be able to get in, and would the Crown oppose his application to stand the matter down for the morning, given he can't physically be here. And I responded that I wouldn't oppose that. I went out for a walk last night, and it seemed treacherous, and five centimetres of snow on a sheet of black ice seems worse. THE COURT: Yes. All right. What do we do about the fact that Mr. Smith isn't here? MR. ECCLES: Crown would be content to have the court note his non-appearance, and adjourn any application the Crown may make in light of that until tomorrow morning. THE COURT: All right. MR. ECCLES: If Mr. Smith's not here tomorrow morning, then we'll have an application. THE COURT: All right. So that application is adjourned until ten o'clock Thursday morning, as is the trial. MR. ECCLES: Thank you, My Lord. THE COURT: Thank you. THE CLERK: Order in court. (PROCEEDINGS ADJOURNED TO JANUARY 19, 2012, AT 10 A.M.) Transcriber: R. Greenaway

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Court of Appeal CA040556

v. OWEN EDWARD SMITH

W. Paul Riley Counsel

Kirk I. Tousaw Counsel

J.C. WordAssist Ltd.

149345-2 Victoria Registry

In the Supreme Court of British Columbia

P. Eccles K. Guest K. Tousaw

J.C. WordAssist Ltd.

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