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 2 (Pages 157 - 351) Public Prosecution Service of Canada W. Paul Riley 900 - 840 Howe Street Vancouver, B.C. V6Z 2S9 Counsel Phone: (604) 775-7475 Fax: (604) 666-1599 Solicitors for the Appellant Kirk Tousaw Kirk I. Tousaw 1135 Fisher Road Cobble Hill, B.C. V0R 1L4 Counsel Phone: (604) 836-1420 J.C. WordAssist Ltd. Head Office Toll Free 1-888-811-9882 Nanaimo Branch Office 250-754-7822 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 2 3 4 5
Transcript
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
APPELLANTv.
OWEN EDWARD SMITH
RESPONDENT
TRANSCRIPTVolume 2 (Pages 157 - 351)
Public Prosecution Service of Canada W. Paul Riley900 - 840 Howe StreetVancouver, B.C. V6Z 2S9 CounselPhone: (604) 775-7475Fax: (604) 666-1599
Solicitors for the Appellant
Kirk Tousaw Kirk I. Tousaw1135 Fisher RoadCobble Hill, B.C. V0R 1L4 CounselPhone: (604) 836-1420
WITNESSES FOR THE CROWNCOLIN BREWSTER.................................................................................12EXAMINATION IN CHIEF ON VOIR DIRE BY MR. ECCLES:.................12CROSS-EXAMINATION ON VOIR DIRE BY MR. TOUSAW:..................35
WITNESSES FOR THE ACCUSEDLEON EDWARD SMITH...........................................................................42EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:................43
WITNESSES FOR THE ACCUSEDLEON EDWARD SMITH...........................................................................80EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:................80CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES:..................140
WITNESSES FOR THE ACCUSEDLEON EDWARD SMITH.........................................................................158CROSS-EXAM ON VOIR DIRE BY MR. ECCLES, CONTINUING:........158RE-EXAMINATION ON VOIR DIRE BY MR. TOUSAW:........................212GAYLE QUIN.........................................................................................217EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:..............218
WITNESSES FOR THE ACCUSEDGAYLE QUIN.........................................................................................242EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING:....243CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES:..................270
WITNESSES FOR THE ACCUSEDDAVID PATE..........................................................................................288EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:..............291
WITNESSES FOR THE ACCUSEDDAVID PATE..........................................................................................352EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING:....352CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES:..................356RE-EXAMINATION ON VOIR DIRE BY MR. TOUSAW:........................429
WITNESSES FOR THE ACCUSEDSANDRA LARGE...................................................................................435EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:..............435CROSS-EXAMINATION ON VOIR DIRE BY MS. GUEST:....................459GIOCONDA HERMAN...........................................................................471EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:..............471
WITNESSES FOR THE ACCUSEDGIOCONDA HERMAN...........................................................................495EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING:....495CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES:..................499RUTH ARTHURS...................................................................................511EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:..............511CROSS-EXAMINATION ON VOIR DIRE BY MS. GUEST:....................524
WITNESSES FOR THE CROWNHANAN ABRAMOVICI...........................................................................539EXAMINATION IN CHIEF ON VOIR DIRE BY MR. ECCLES:...............539CROSS-EXAMINATION ON VOIR DIRE BY MR. TOUSAW:................556
WITNESSES FOR THE CROWNHANAN ABRAMOVICI...........................................................................619CROSS-EXAM BY MR. TOUSAW ON VOIR DIRE, CONTINUING:......619
WITNESSES FOR THE CROWNHANAN ABRAMOVICI...........................................................................717CROSS-EXAM BY MR. TOUSAW ON VOIR DIRE, CONTINUING:......717RE-EXAMINATION BY MR. ECCLES ON VOIR DIRE:..........................738
EXHIBITS ON VOIR DIREEXHIBIT 1: Admissions filed January 16, 2012..............................................3EXHIBIT 1-A: Amended Admissions filed January 17, 2012............................76EXHIBIT 2: Crown's Book of Photographs...................................................14EXHIBIT 3: Victoria Police Department Exhibit Flow Chart..........................17EXHIBIT 4.1: Original Analyst Report No. 09 14838 V....................................30EXHIBIT 4.2: Original Analyst Report No. 09 14835 V....................................30EXHIBIT 4.3: Original Analyst Report No. 09 14839 V....................................30EXHIBIT 4.4: Original Analyst Report No. 09 14803 V....................................30EXHIBIT 4.5: Original Analyst Report No. 09 14804 V....................................30EXHIBIT 4.6: Original Analyst Report No. 09 14805 V....................................30EXHIBIT 4.7: Original Analyst Report No. 09 14806 V....................................30EXHIBIT 4.8: Original Analyst Report No. 09 14807 V....................................30EXHIBIT 4.9: Original Analyst Report No. 09 14808 V....................................30EXHIBIT 4.10: Original Analyst Report No 09 14809 V.....................................30
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EXHIBIT 4.11: Original Analyst Report No. 09 14810 V....................................31EXHIBIT 4.12: Original Analyst Report No. 09 14811 V....................................31EXHIBIT 4.13: Original Analyst Report No. 09 14812 V....................................31EXHIBIT 4.14: Original Analyst Report No. 09 14813 V....................................31EXHIBIT 4.15: Original Analyst Report No. 09 14814 V....................................31EXHIBIT 4.16: Original Analyst Report No. 09 14815 V....................................31EXHIBIT 4.17: Original Analyst Report No. 09 14816 V....................................31EXHIBIT 4.18: Original Analyst Report No. 09 14817 V....................................31EXHIBIT 4.19: Original Analyst Report No. 09 14818 V....................................31EXHIBIT 4.20: Original Analyst Report No. 09 14819 V....................................31EXHIBIT 4.21: Original Analyst Report No. 09 14820 V....................................31EXHIBIT 4.22: Original Analyst Report No. 09 14821 V....................................31EXHIBIT 4.23: Original Analyst Report No. 09 14822 V....................................31EXHIBIT 4.24: Original Analyst Report No. 09 14823 V....................................31EXHIBIT 4.25: Original Analyst Report No. 09 14824 V....................................31EXHIBIT 4.26: Original Analyst Report No. 09 14825 V....................................31EXHIBIT 4.27: Original Analyst Report No. 09 14826 V....................................32EXHIBIT 4.28: Original Analyst Report No 09 14827 V.....................................32EXHIBIT 4.29: Original Analyst Report No. 09 14828 V....................................32EXHIBIT 4.30: Original Analyst Report No. 09 14829 V....................................32EXHIBIT 4.31: Original Analyst Report No. 09 14830 V....................................32EXHIBIT 4.32: Original Analyst Report No. 09 14831 V....................................32EXHIBIT 4.33: Original Analyst Report No. 09 14832 V....................................32EXHIBIT 4.34: Original Analyst Report No. 09 14833 V....................................32EXHIBIT 4.35: Original Analyst Report No. 09 14834 V....................................32EXHIBIT 4.36: Original Analyst Report No. 09 14836 V....................................32EXHIBIT 4.37: Original Analyst Report No. 09 14837 V....................................32EXHIBIT 4.38: Original Analyst Report No. 09 14840 V....................................32EXHIBIT 4.39: Original Analyst Report No. 09 14841 V....................................32EXHIBIT 4.40: Original Analyst Report No. 09 14842 V....................................32EXHIBIT 4.41: Original Analyst Report No. 09 14843 V....................................32EXHIBIT 5: DVD containing scene video images.........................................34EXHIBIT 6: City of Victoria Proclamation "International Medical Marijuana
Day".........................................................................................112EXHIBIT 7: Letter from Office of the Mayor of Victoria, B.C. to Tony
Clement dated March 20, 2006...............................................116EXHIBIT 8: Letter to Leon Smith from Susan Fletcher, July 27, 2005........117EXHIBIT 9: Letter from Leon "Ted" Smith to Susan Fletcher dated
January 4, 2006.......................................................................119EXHIBIT 10: Letter to Ujjal Dosanjh from Leon "Ted" Smith dated
February 3, 2005.....................................................................121
EXHIBIT 11: Letter to Leon Smith from Beth Pieterson, dated February 24, 2006...................................................................124
EXHIBIT 12: Letter to Tony Clement from Leon "Ted" Smith dated August 1, 2006.........................................................................128
EXHIBIT 13: Letter to Leon Smith from Susan Russell dated September 26, 2006................................................................130
EXHIBIT 14: Letter to Tony Clement from Leon "Ted" Smith dated January 3, 2007.......................................................................133
EXHIBIT 15: Letter to Leon "Ted" Smith from Ronald Denault dated 2008-06-03..............................................................................137
EXHIBIT 16: Letter to Tony Clement on International Hempology 101 Society letterhead dated December 4, 2007 (was Exhibit B for identification)......................................................................139
EXHIBIT 17: Cannabis Buyers' Club of Canada informational pamphlet......176EXHIBIT 18: Cannabis Buyers' Club of Canada - Medicinal Cannabis
Recipe Book............................................................................258EXHIBIT 19: Breast imaging report - exam date 18-Apr-2011......................260EXHIBIT 20: Histopathology Report for Gayle Quin.....................................261EXHIBIT 21: Prescription sheet from Dr. Roland Graham dated
November 28, 1997.................................................................261EXHIBIT 22: Urine Toxic Metals report of Dr. Peter Nunn dated
August 12, 2002.......................................................................262EXHIBIT 23: Letter from Dr. Kristen Bovee dated January 6, 2012..............266EXHIBIT 24: Package of documents including original affidavit of Dr. Pate,
curriculum vitae, list of publications and two studies...............290EXHIBIT 25: Colour photograph of close-up depicting female flower of
cannabis plant..........................................................................301EXHIBIT 26: Macro colour photograph of close-up of leaf surface...............302EXHIBIT 27: Macro photograph depicting isolated trichomes......................319EXHIBIT 28: 1 page photocopy of prescriptions prescribed to Sandra
Large........................................................................................455EXHIBIT 29: 5-page document from St. Joseph's Health Care entitled,
"Regional Evaluation Centre Multidisciplinary Health Care Assessment.............................................................................472
EXHIBIT 30: Document from St. Joseph's Health Care, Regional Evaluation Centre Multidisciplinary Health Care Assessment - Final..................................................................476
EXHIBIT 31: Copy of report from St. Joseph's Health Care dated March 28, 2002........................................................................476
EXHIBIT 32: 3-page letter dated May 7, 2004 addressed to Dr. Patricia Morley-Forster.........................................................................478
EXHIBIT 33: 1-page copy of document from London Health Services dated July 22, 2004.................................................................484
EXHIBIT 34: 1-page document from Vancouver Island Health Authority dated May 6, 2009...................................................................485
EXHIBIT 35: 3-page copy of fax dated May 11, 2005 from Dr. Laurence Jerome Re: Gina Herman........................................................487
EXHIBIT 36: 1-page document of Prescription Authorization Request printed on January 20, 2012 re Herman, Gioconda.................488
EXHIBIT 37: 4-page copy of document entitled Form B1.............................493EXHIBIT 38: Copy of letter from Dr. Grimwood to Mr. Brooks re Ruth Ann
Arthurs dated April 15, 2010....................................................515EXHIBIT 39: 1-page copy of assessment form for Life Mark
Physiotherapy re Ruth Arthurs dated March 17, 2010.............517EXHIBIT 40: Affidavit of Hanan Abramovici.................................................556EXHIBIT 41: "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
EXHIBIT 42: "Adverse effects of medicinal cannabinoids: a systematic review".....................................................................................726
EXHIBIT 43: Large cerlox bound volume, affidavit of Eric Ormsby..............755EXHIBIT 44: Curriculum vitae of Eric Ormsby..............................................765
EXHIBITS FOR IDENTIFICATION ON VOIR DIREEXHIBIT A: Cannabis Buyers' Club of Canada, Product Guide..................102EXHIBIT B: Letter to Tony Clement on International Hempology 101
Society letterhead dated December 4, 2007............................136EXHIBIT C: Binder of Health Canada MMAR information...........................194EXHIBIT D: Affidavit of Dr. Harold Kalant sworn April 3, 2008....................412
RULINGS
Plea.......................................................................................................................2Ruling re re Ban on Publication...........................................................................10Order re Exclusion of Witnesses.........................................................................11Ruling re admissibility of document...................................................................100Ruling re admissibility of document...................................................................115Ruling re admissibility of document...................................................................119Ruling re admissibility of question on re-examination........................................214Ruling re Qualification of Witness re Pate.........................................................291
[RULING RE ADJOURNMENT APPLICATION]................................................533Ruling re Qualification of Witness re Abramovici...............................................538Ruling on Voir Dire............................................................................................787Ruling on Voir Dire............................................................................................788Re-Election........................................................................................................791Plea...................................................................................................................794Reasons for Judgment re Acquittal....................................................................795
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Proceedings
Victoria, B.C.January 19, 2012
THE CLERK: In the Supreme Court of British Columbia. Thursday, January the 19th, 2012. Calling the matter of Her Majesty the Queen against Owen Edward Smith, My Lord.
MR. TOUSAW: My Lord, Tousaw, first initial K., for Mr. Owen Edward Smith, who is also present in the courtroom.
THE COURT: Mr. Tousaw.MR. ECCLES: My Lord, Peter Eccles, E-c-c-l-e-s, for
the Federal Crown, and with me is Ms. Guest, my co-counsel.
I note Mr. Smith's present this morning, and accordingly the Crown will not be pursuing its application from yesterday.
THE COURT: All right. Mr. Tousaw, why was Mr. Smith not here yesterday?
MR. TOUSAW: My Lord, I -- I first apologize for my inability to attend yesterday.
THE COURT: What had happened? MR. TOUSAW: I was snowed in. I spoke to my friend in
the morning, and actually wasn't able to reach the court registry until about 10:20. I thought that there was a chance the court itself had been closed. So I have to apologize to the court. I -- had I known the proceedings were going to be ongoing, I would have endeavoured to make sure Mr. Smith was here. I think he simply was unaware, based on my inability to attend, that he also might need to attend. And I -- and I apologize for that. I know my friend advised me that he was going to walk over and speak to the matter should it have been necessary to do so.
THE COURT: Your client should understand the risk of non-attendance, being that this court could order a warrant for his arrest, whether or not the Crown seeks one.
MR. TOUSAW: Yes.THE COURT: All right.MR. TOUSAW: Thank you, My Lord. THE COURT: Mr. Eccles.MR. ECCLES: Thank you, My Lord.
LEON EDWARD SMITHa witness called for the Accused, recalled.
CROSS-EXAM ON VOIR DIRE BY MR. ECCLES, CONTINUING:
Q Now, Mr. Smith, from your evidence in chief and some of your answers to my cross-examination from Tuesday, that's when we were last before the court, I take it that you've been a recreational user of marihuana and marihuana products for a number of years, is that correct?
A Yes. I would have started to consume cannabis at the age of 18, and in fact probably started to sell small amounts of hashish at the age of 18. So I've been both a consumer of cannabis and involved in the trade for several decades.
Q And you were how old when you moved to the West Coast in 1995?
A I was 25 years old when I moved here.Q So at that point you'd been using marihuana
recreationally for some roughly eight years, seven, eight years, seven --
A Yeah.Q -- years, I guess?A Roughly. Ironically, one of the reasons I moved
here was to get out of the trade. I didn't want to deal in -- in cannabis or drugs any more. I thought I would come here and -- and find work as -- as a writer, or something else. But, yeah, so there was a brief time. I didn't mean to say that I was, you know, the entire time from age of 18 on, you know, dealing in cannabis. But --
Q It was an occasional thing?A Well, it would happen more in university and --
and somewhat in high school, and then in the time period between leaving university and, you know, first settling out here I wasn't at all, but ...
Q For some young recreational users of marihuana, they may buy a little more than they actually need to enjoy the benefits of bulk purchasing, and to defray their own costs, sell off a little excess; are you familiar with that phenomenon?
A Oh, in fact, you know, my first experience in selling was, in high school I would buy a quarter of hash for $55, which is seven grams, and I would split that up into the seven grams and sell five
of those grams to my friends for $10, and that would leave me with $5 left, or -- or I would have paid $5 for the -- the two grams that were left.
Q So in essence you get your own -- you run the risk of acquisition of ordering and selling it at the gram level, in order to defray the cost of -- reduce the cost of two grams for $20 to you, to $2.50 each, at the end of the day, basically?
A Well, $20 for the two grams, so $10 a gram to $2.50 a gram.
Q Yes. That's what I --A Yes.Q Sorry. I'll caution you now, when I start talking
numbers, listen carefully, because my mathematics and my arithmetical skills are why I'm a lawyer, not an accountant.
Now, you were also producing marihuana as a grower in -- in British Columbia after your arrival, correct?
A Not right away. It was actually when I met a woman who I was with for about a decade. She was actually growing when I met her in the Clayoquot Sound, and we grew herb there in the summer, I believe until the summer of 1999, which was a horrible year, as I mentioned. We had a -- a mouldy crop that I couldn't sell to the members of the Club, that we kept for ourselves, which I -- I regret doing. And we stopped, you know, after that. And there was -- yeah, no, I think that would be about the only time that I've really been growing for the Club.
Q Now, in addition to the activities with the CBC of C, Cannabis Buyers' Club of Canada, you also are active with Hempology 101, correct?
A Yes, I am.Q And one of the areas that Hempology 101 focusses
its energies on is the move to attain decriminalization of possession and sales of marihuana, correct?
A Actually, I suggest that decriminalization is a lawyer's term for job protection. It doesn't legalize and regulate the market. It would leave the market to, you know, criminals, and therefore the quality, it would be in question, and there would be no tax benefits to the general public, and the economy would suffer as a result of decriminalization, while the expenses incurred of
enforcement would no longer exist. The massive number of -- of economic and
medical benefits that we could see from this plant wouldn't be seen through decriminalization. We argue for the full legalization of cannabis.
Q And you've been arguing in favour of the full legalization of cannabis throughout your activities with Hempology 101, and essentially since your arrival on the coast; is that fair to say?
A Well, pretty much. It was about a, you know, two month period before I came to a Hempology meeting, and -- and at that point really identified with -- with the goals. And when I started Hempology here in September of '95, our motto was, and still has been, you know, legalization by education.
Q Would it be fair to say that it is your personal belief that marihuana is a safe substance, and it does not cause harm?
A I don't think that would be exactly, you know, what I would purport. I have often gone into great depths about the potential harms of cannabis. I do not, as some other activists claim, state that cannabis is good for all people at all times. Some individuals with mental health issues can have negative results from using it. Some people with certain medical problems, heart problems, for example, might be best not using cannabis. And certainly young people under the age of 16, in particular, I think are putting themselves at risk in their mental and physical development in using cannabis. And so I would not say that it is, you know, this blanket, you know, all-good plant that is good all the times. There are some potential problems. And -- and some people, you know, can have also, I should add, an addiction to it, such that they -- they do, you know, compromise other areas of their life that they shouldn't in order to smoke and keep smoking pot. It's very unfortunate, but there are some cases of individuals that do not benefit from it.
Q Addiction risks, you've just mentioned; you're alive to the potential risk for individuals using marihuana to develop a dependence upon the drug that leads to an addiction, psychological or physical?
A There does seem to be a small percentage of people
that upon, you know, being introduced to -- to cannabis seem to become obsessed with it, whether, you know -- and so to say whether or not there were other, you know, mental health issues that led them to -- to -- to using so much pot that they are, you know, losing other parts of their life that they shouldn't, whether their job or relationships and stuff, but I have seen it happen, I would admit. But it is a very, you know, small percentage.
And interestingly enough, it seems that more often than not it's a phase in people's lives that happens when they're -- they're younger more than older. Not to say that it can't happen to an older person first kind of introduced to herb, that it helps them so much that they give everything up for it, it seems, and would prefer to smoke than -- than to -- to do other stuff. But, you know, it seems to be something that, you know, most people grow out of. With, you know, the exception of those that have tendencies towards, you know, poly drug use, in which case, you know, usually they -- they would go to -- to other drugs that are much stronger than cannabis. And so it would be, again, you know, sort of a phase where -- where they would be, you know, smoking a lot of herb and then, you know -- but at the same time, you know, again involved in this poly drug lifestyle. But again that's -- that's a -- a very rare minority.
Q Now, when you began testifying in this matter, you -- during the course of describing the activities of the CBC of C and the process whereby members become members, you described this sign-up process, and you described the -- that during the course of this process, risks are discussed with potential members, correct?
A Yes.Q On your Exhibit A, what's been marked as Exhibit A
for identification -- MR. ECCLES: And perhaps Mr. Smith could be shown
Exhibit A for identification, Madam Clerk. It looks like that.
Q This is the product guide for Cannabis Buyers' Club of Canada, listing edible products and what -- and you've described the price for the various items. And it also describes what the
Cannabis Buyers' Club of Canada believes are the conditions that can be helped by the use of cannabis, and there's a column full of them, correct?
A Correct.Q And at the very bottom, in italicized print is,
"We recognize that patients do not drive or operate machinery under the influence of the products." Correct?
A Correct.Q What other recommendations or explanations of
potential risks are given to individuals who are seeking to sign up with the CBC of C? What else do you explain as being possible risks?
A We discuss the fact that certain strains of cannabis known as sativas may increase the heart rate, and for people that have heart problems it's something that they should pay attention to, to see if in fact that does occur frequently. And it isn't something that I understand is enough to induce a heart attack. I don't think there's been a case where it's done more than increase the heart rate. But for people with heart problems, any time their heart rate increases, it's a concern, and -- and would be scary, and they might think a heart attack is coming on.
And so, you know, knowing that, you know, that the increased heart rate is sort of a normal, or often, you know, a common experience from -- from smoking certain strains would at least relieve them to think that they're not having a heart attack, and their heart rate will subside soon, and then they can have a choice whether or not to continue to -- to use the -- the product or not. So we give advisement for that.
We give the advisement for operating heavy equipment.
Q What about drug interactions? Do you advise potential applicants that there can be negative drug interactions between the psychoactive ingredients in cannabis and CNS, central nervous system, anti-depressants and the like?
A We don't discuss drug interactions, I would say primarily because there do not seem to be any, or, you know, many cases where cannabis and -- and other drugs interact in a negative way. In fact it seems from our experience that using our
products would complement most medicines, and people would take less opiates or less, you know, other, anti-inflammatories and such. And in some cases people can stop using prescription drugs entirely.
But we haven't had experience in -- you know, with anyone that's had a, you know, drug interaction that hasn't gone well, and -- and haven't heard of one either. With the exception -- and now that you say this, you know, I may end up changing the sign-up when we get back to work here today, because it might be that we should be giving a warning about the potential interaction with some of the strong drugs used for people with severe mental health issues. Schizophrenia to me is a very broad and loosely used term to -- but, you know, people with very serious mental health issues are given, you know, some strong medications, and in some cases the use of cannabis can make it much more difficult for them to -- to focus.
And -- and so, you know, that is something that the staff, you know, pays attention to, and, you know, the -- the sign-up that we have is a very general one, and in the sign-up, you know, we have the ability to go off the page, as it were, and -- and discuss these things. And members will often talk about their other issues.
And so it is known by the staff at the Club, in particular when dealing with people with mental health issues, that it doesn't work for -- for everyone, and in some cases they're better off without our services.
And so it is something that we pay attention to. And quite often we -- we notice these things very quickly, but it isn't something that we actually state in the sign-up, but we will this afternoon.
Q So I take it at the moment in the course of a sign-up you do not -- or you have not in the past personally when signing people up told potential members that the use of cannabis may be contraindicated, to use the phrase that doctors are so fond of, may be contraindicated for individuals who suffer from some mental health conditions, including schizophrenia, acute psychotic reactions or psychotic states, paranoid
delusional states, generalized paranoia, bipolar disorders, also known as bipolar manic depressives, and some individuals suffering from depressive -- depression may not do well on cannabis there?
A Mm-hmm.Q You're -- that's not something you explain to
members when they come in, that if you have any of these things you may want to seek the advice of a mental health professional before proceeding any further?
A It's not something that we necessarily read to everyone, but it is something that, you know, we have, you know, mentioned to -- to individuals. In most cases, though, I would say people in that position are already using cannabis and find that it works for them, so they're not coming to us because they -- they don't know it works. In fact they're coming, you know, often because it does help them, at least in -- it seems to be at that point in their lives.
And so that's -- but not something again that -- that's, you know, in -- in -- in the rules, but there -- there would be no harm in doing that. One of the reasons why we don't publish our rules and sign-ups and such is because, you know, they do change over time, and we are constantly trying to improve our services and -- and so thank you for helping.
Q You've been active with the CBC of C, or -- and with Hempology 101, since the late '90s; is that fair to say?
A Oh, mid '90s.Q Mid '90s. A You know, I started Hempology in '95, and it
wasn't till January of 1996 that we officially launched the Buyers' Club, but we had spent a couple of months debating, you know, what the pamphlet would say, and how we would operate, and what the long-term goals of the group were. So, yeah, it's been --
Q And --A -- sixteen years.Q Sixteen years you've been located in the downtown
core of Victoria, correct?A Essentially within a couple blocks of Johnson
Q And in those 16 years you've seen, I take it, changes in the street population in the downtown core of Victoria; would that be fair to say?
A Your Worship, I've lived with the street community when I started. Lived in my van the first nine months of the Club. I ate in every soup kitchen in town. I volunteered a lot at a place called Inner City Youth Works Society at the time, and helped develop small businesses with street youth.
While I don't eat in the soup kitchens any more, I certainly am very aware of the street population. Some of my best friends right now are homeless. They're living in sheds in people's yards, and such. So I have very close contact with individuals in the street community, and my store is surrounded by the street community as well. We're about a block away from Our Place, and many facilities are within a block or two of -- of our club.
Q And would it be fair to say that it is your understanding from 15 years, 16 years, coming up to 17 years, being in the downtown core and working with the street community and becoming familiar with members of what's sometimes called the street community, that there are a number of individuals in that community who have mental health problems of varying levels of severity?
A Oh, we are constantly surrounded by people like that. In fact after leaving here on Tuesday we had a woman who -- who was homeless, who parked her stuff in the front of our -- our club, and -- and had nowhere to go. There was the emergency protocol on Tuesday night, and so I put her belongings in a little red wagon I have, and took her down to the Salvation Army so that she could go to the Native Friendship Centre for the evening. But I spent a good full hour, you know, just dealing with this lady and her problems with being homeless.
So it is something where, you know, I have the -- the homeless community and -- and these, you know, street entrenched people, literally, you know, living in my club with me.
Q And some of these individuals, who may or may not live in your club, some of them are profoundly ill, aren't they? They have serious and profound mental health issues, some?
A They certainly are. You know, not the -- the majority, but we certainly see the most vulnerable and sick and distressed people coming into our door. That's why we're there, right in the middle of it.
Q And one of the difficulties presented by individuals with profound mental health conditions living on the street is, to your understanding, a tendency for such individuals to self medicate through various prescription and non-prescription medications they may acquire on the street?
A There's, you know, a certain percentage of the street community that are, you know, I would use the term poly drug users, that would use whatever drug became available to them, and not, you know, have much concern for that.
But that isn't all of them, Your Worship. I've lived and loved many of these people, and some of them are, you know, just dealing with -- with challenges, and problems, that -- that are hard to comprehend. I have a young friend, I know as Solo, who has a dog. He refuses to give up his dog, and it makes him homeless, because no one will take him in.
So, you know, there are a lot of cases where there's, you know, really good people in just unfortunate circumstances. But there are, you know, a lot of -- the most unfortunate, you know, just like what you see in the Downtown Eastside, but just a fraction of it, you know, that -- that live here.
Q And you refer to the downtown eastside, you're referring to Vancouver, that --
A Yes.Q And you're referring to the area of Main and
Hastings, the worst postal code in Canada, correct?
A It is internationally known for the poverty and despair in that community. So, yes, I -- I just generally refer to it like that.
Q And one of the things that community is known for, and perhaps to a lesser extent Victoria's downtown homeless community is known for, is resorting to non-preparation medication to self medicate for mental health issues or health issues, correct?
A I think for some of these people, any means of escape they will seek, and drugs are cheap and
available to -- to them, far more powerful drugs than cannabis, but are more cheaper. And so that seems to have drawn them, you know, away from, you know, their life situation and into a life of drugs. Yes, it's very sad.
Q And that can lead to poly drug abuse issues, correct?
A Well --Q From your understanding?A -- that is poly drug issues.Q It can lead to difficulties with individuals self
medicating with narcotics of one sort or another that don't actively assist the long-term treatment of their mental health conditions; is that your understanding as well? That there are risks, for example, to an individual suffering from paranoid delusional state or schizophrenic state taking anything that interferes with their grasp of reality?
If you don't know, if it's beyond the scope of your understanding or experience, then that's fine, but --
A Well, I do have a lot of living experience with these people. I have not had, you know, academic training in -- in these fields. But, you know, I would agree that, you know, there's -- you know, and I think by the very nature of having a mental health issue, that would mean that you make bad decisions, or have a tendency toward making bad decisions, because you're so caught up in your own internal dialogue that you're having trouble, you know, making, you know, good decisions, and -- and taking risk. And so I would say that, you know, if that's, you know, what you're sort of getting at, is that, you know, people with mental health issues unfortunately are prone to -- to being risk adverse, and part of being risk adverse would lead a person towards being a poly drug user, you know.
Q And a practical example of risks of individuals who have mental health conditions not making appropriate choices, an example of that might be Mr. Durid, correct, the individual who smoked the one-month-old hash?
A Oh, Mr. Dure. Q Dure, sorry. A Sorry, okay.Q D-u-r-e?
A D-u-r-e, yeah. But it's Dure. I know him personally, so I just know from what he told me, that's all. But his family as well, so --
Q He would -- would he be an example of an individual who has mental health issues that may well interfere with his ability to make what might be appropriately healthy decisions?
A I -- I would think that would be a fair statement, from what I -- I remember of James. And it has been over ten years, but I -- I did go to his parents' home in Maple Bay, actually, and -- and visit his parents, and -- and actually knew him a fair amount before this happened. And James was also in a severe amount of pain, and so I would think that between the -- the chronic pain that he was in and -- and the other ideas that he had, that he would have sought, you know, any drug that would have provided him relief that seemed relatively safe. He wasn't, you know, a street entrenched person. He had a good home to go to, and stuff like that. But I -- I -- I think I might agree with -- with your statement, if I understand it correctly, that, you know, he -- he was risk adverse in that way.
Q Now, Mr. Dure, you've mentioned he has a home in Maple Bay to go to, correct?
A Mm-hmm.Q Not all of the members of the CBC of C enjoy that
same safety net; would that be fair to say?A Oh, that's very fair to say, yes.Q Now, in the course of your evidence about the
sign-up process, you also discussed that one of the things you take applicants to or assist them with, if you can, is the process of signing up for or becoming a licensed -- a licence holder under the Marihuana Medical Access Regulations program established by Health Canada, correct?
A That's correct.Q You provide the forms and you assist them in going
through the process of filling out the form and explaining what they require to complete the forms, is that correct?
A If -- if they ask, we'll fill them out. Usually we would just give them the forms to take home. It's about a 45-minute intake when they come through our club. There's a lot of information visually and -- and otherwise that's coming to
them. So we don't sit down and actually fill it out with them. But if they request us to, we will.
Q You don't want to bury them in information in this initial thing; would that be fair to say?
A We limit the amount of information people take in when they join our club. Quite often when people come in, they're in a lot of pain, they don't have medicine, that's why they're there. And so we've learned, for example, that some people, you know, if they come in with their hands all clenched up with arthritis, we actually take the massage oil and apply it to their hands at the beginning of the sign-up, and often by the end of their sign-up, they have -- you know, their hands are -- are feeling better and they're able to pay more attention that way. And so there are even, you know, the odd cases where we'll give someone a bit of a toke so that they can relax and feel that little bit better, and are able to pay better attention through the procedure.
And so, you know, there is a point where, in terms of the services we provide or the information about cannabis in general, where, you know, there can be too much information. So we give them as much as we can, and, you know, we -- we make it very clear to them that we encourage communication, and if there's any problems or any information that they have, or that they require, that they should call immediately.
Q Do you advise them of the Health Canada website that exists to provide information about the MMAR?
A Not specifically. It's included in the information. It's included in our pamphlet, I believe, as well. We have Health Canada's contact information there. I don't think we mention the web page, though.
Q Are you familiar with the web page established by Health Canada to provide information for members of the public about the MMA -- what's called the MMAR, the Marihuana Medical Access Regulations?
A To tell you the truth, Your Worship, I haven't spent that much time on Health Canada's pages, myself. I've, you know, been on them at various points, but not extensively.
Q Now, I'm going to produce to you a volume I have provided to my friend as well. I think I've gave
my friend this. I have a copy for Your Lordship. And it has a blue cover, names of counsel, and a title, "Health Canada Website Information, MMAR." And at Tab 1, if you can just turn to that, it's page 1 of 2, "Drugs and health products, medical use of marihuana," and then the usual quick links, et cetera, et cetera. Have you looked at this before? Are you familiar with this at all?
A I don't think I've seen this particular page. You know, it's been ten years. I'm sure their pages have changed over time. So I may have read the text; I just don't, you know, recognize the format.
Q And page 2 of 2 is simply a blank page with the last bit of the header at the top of it, on this thing, correct?
A Actually page 2 just looks to be an empty page, but --
Q Yes, that's what I'm asking. A Okay, yeah.Q Now, you're not familiar with this; you haven't
been to this website recently?A No, it's been a while, you're -- you're correct.Q Turn to Tab 2. That's page 1 of 2, "Frequently
asked questions, medical marihuana, drugs and health products. Frequently asked questions, medical use of marihuana," and then the questions are set out, seven questions, and then the answers are set out, correct? At least Health Canada's answers to the questions that are frequently asked?
A Correct.Q Does the CBC of C have any similar materials that
they provide to their membership in written form?A Well, when a member joins the Club, the three
pieces of information they get are the Health Canada forms, the pamphlet and the product guide.
Q And that would be Exhibit A, is the pamphlet and product guide?
A Yes.Q And I believe -- you should still have Exhibit A
in front of you. A I have -- sorry, I have Exhibit A.Q Yes, that's --A And then the -- I -- I --Q And there's --A I'm not sure if it's Exhibit B, but it's --
Q So you've got the MMAR forms. There's that particular pamphlet, and there's one other pamphlet or piece of paper provided to members, is that correct?
A Yes. I -- I thought we submitted it as evidence, but perhaps not. I had a folder of information I thought was going to be submitted, and I thought that was part of it. It wasn't. Oh, I'm -- I'm sorry. I certainly --
MR. TOUSAW: Yes, My Lord, that was not introduced into evidence during the direct of Mr. Smith.
A Okay. MR. ECCLES: Q I'm handing to you now a document counsel has been
kind enough to provide to me. A Mm-hmm.Q And I'd just like you to look at that document and
let us know if that is the third informational outline that's provided to members.
A This is. And as I said, I had anticipated evi -- entering this as evidence about the Club, and such. And so, yes, this is the information that they're given.
Q And just so we know, this is -- it's a pamphlet. What we have is an 8 by 11 printout of what's in the pamphlet, and it is roughly the same amount of information as in Exhibit A, but the headings are, "Buddhist [phonetic] Cannabis Buyers' Clubs of Canada. Help." There's a heading for Health Canada, with the website for Health Canada, and a description of the -- or advises people of the existence of the MMAR program, and recommends, at the second paragraph, "We advocate the licensing of our members," et cetera, correct?
A That is correct. I'm not sure if that's the exact pamphlet we handed out in December 2009. It does get updated as time goes. And we don't really date them, so it's kind of hard for me to tell. The only way I might be able to tell is when it says how many members we have.
Actually this is probably from 2009, because it has under the Health Canada header the fact that there was 2,400 people essentially, as of February 2008, that had Health Canada licences. And so that -- that is our one way of kind of figuring out which year these were being passed out. So there is a more current one being used
right now.Q And there's -- in addition to that, there's the
heading, how can hannabis heal -- "How Can Cannabis Heal," and a column of information, correct?
A That's correct.Q It describes what the CBC of C believes -- who the
CBC of C believes can be assisted by cannabis, the three basic methods of consumption, smoking, eating, or applying topically as a salve, description of the resins and compounds. And then THC is described, cannabidiol (CBD), cannabichromene (CBC), canna -- maybe you can read those. I'm not good on that.
A Well, in fact we may rely upon Dr. Pate for the correct pronunciation.
Q Just so -- you've referenced Dr. Pate. You know who Dr. Pate is, and you know he's antic -- anticipated to be a witness in these proceedings?
A Yes. Dr. Pate has in fact testified for one of my trials in the past, so I'm familiar with him.
Q And he will be -- he's the individual who's going to be providing the court with scientific evidence, correct?
A That is what we expect to happen.Q And that pamphlet is something prepared by the CBC
of C to provide to members to assist them in understanding somewhat of what the CBC of C does and what the CBC of C believes marihuana can do to assist them, correct?
A Well, this pamphlet is intended for our members, and the general public as well. It is something that we will put into other facilities, you know, the Cana -- and, you know, AIDS Vancouver Island, and stuff, would have some of our pamphlets there. So it is meant for, you know, general use as well. But it is something that we put together in essence to help the members understand some of the effects that they could expect. And again, we go through this in the sign-up verbally, but we complement it with, you know, the physical paper as well. So we go over it verbally, as well as the rules, you know, verbally, and then -- and then they're given the pamphlet.
Q Now, perhap -- this is a paper pamphlet, correct?A Yeah.Q It's not a web pamphlet. Or is it available on
the website of the CBC of C?A I wish I had the time to spend full time online,
because there's so much to do, but I couldn't tell you if the PDF, or this is, you know, by itself available on our web page. I would -- I would think that the basic information has been put up on our web page, but I -- I haven't -- when we updated this pamphlet, I haven't thought to go and update the parts of the web page corresponding to it. So actually I would say no, this -- this probably isn't there. But you could prove me wrong more than once today.
MR. ECCLES: Madam Clerk, I have a spare copy for His Lordship, Mr. Tousaw's been kind enough to provide me.
Q Now, I take it when we look at the first page of this document on the far right side of the page is the Cannabis Buyers' Club of Canada, and the logo, and then the description, the address, in both British Columbia and Nova Scotia, and then two website addresses are provided, correct?
A Yeah.Q That I take it is -- this is a pamphlet that, you
know, if we fold it up it's going to be one third of a page, and that's the cover, correct?
A Yes, that's the cover.Q There is no other website address identified in
the pamphlet for the CBC of C or Hempology, other than that that appears on the cover, correct? That's the only website that this would refer a member to?
A That and the Health Canada website, yeah. So there are the three.
Q Thank you, I missed that one. What the Cannabis Buyers' Club of Canada does not provide on the website, as I understand it, is information for members to perhaps provide their physicians when they're attending to have their physicians sign the MMAR forms. That's not on your website, is it?
A No, because I would suggest that each individual is -- is different with the information that they would provide, depending upon their conditions. You know, we help thousands of people with an unknown number of different ailments, and often more than one problem, too. So, you know, each individual would approach their doctor with, you
know, the information that would be specific to -- to their situation.
We encourage them to take our product guide to show the doctors what, you know, alternatives that we have, because most physicians think cannabis and smoking, and don't consider the alternatives. So we really want to educate the doctors through our members in that way.
But, no, there isn't a package. And in fact there are, you know, other advocates in Canada that make packages very specific to the MMAR. A very dear friend of mine, Michelle Rainey, who passed about a year and a half ago, dedicated her life to helping out people, and has packages still. There's a foundation remaining in her name that helps people with that information. So it's not something that we've decided to -- to duplicate ourselves.
MR. ECCLES: Now, returning to the -- well, perhaps, My Lord, I'd ask that the Cannabis Buyers' Club of Canada informational pamphlet for members be marked as Exhibit B for identification. And at the conclusion of the matter, there may be further submissions made regarding the ultimate --
THE COURT: All right.MR. ECCLES: -- admissibility of both A and B.THE COURT: Didn't we already have a B? MR. ECCLES: We have an A, My Lord, yes. That's the
product guide.MR. TOUSAW: We had a B, My Lord, that -- MR. ECCLES: We did?MR. TOUSAW: -- became subsumed, and there was the
second page document. MR. ECCLES: Ah, yes.THE COURT: It became 16. So we'll make this one C. MR. TOUSAW: My Lord, if I might just speak to that
briefly. I'm not sure why my friend's marking it for identification. He's asked a number of questions about it. It seems to me it ought to be marked as an exhibit proper. But I'm in Your Lordship's hands. I'm not sure that my friend ought to be in a position to both use the pamphlet to adduce evidence, and then at some later point seek to argue that it should somehow not be admissible as an exhibit.
MR. ECCLES: My Lord, in my respectful submission, the witness can be asked about portions of the
document the witness is aware of and can give specific evidence on. When parts of the document contain medical opinion or related expert opinion, that is not a matter the Crown is asking Mr. Smith about. It's not a matter Mr. Smith is in a position to give evidence to assist the court with. He hasn't been -- my friend hasn't sought to qualify him as an expert, and in my respectful submission when a document contains materials that may well be admissible, and other materials that may well not be, the fact that counsel asks a witness questions about a document doesn't automatically render all of it admissible before the court. That's the difficulty with this document.
THE COURT: So as I gather now, what I have is evidence that there is a pamphlet that exists, but there is no evidence as to its contents that is admissible.
MR. ECCLES: The evidence -- well, My Lord, I wouldn't -- in the Crown's submission we don't go that far. What we say is this is a pamphlet, we've had a description of it. It's the information provided in written form to the membership. It includes the description of Health Canada. That is information given to the members.
THE COURT: Doesn't the best evidence rule say that if evidence exists on paper, the best evidence of it is the paper, and that a witness cannot read in to court or tell the court what's on the paper and make that admissible evidence?
Mr. Eccles, if you don't want this to become an exhibit, then none of its content are in evidence at this trial. Because having a witness look at a piece of paper and say, yeah, that's on page 1, does not make that admissible evidence as to what's on page 1.
MR. ECCLES: Certainly, My Lord. Then in that case I would ask it be marked as an exhibit proper, and the weight to be assigned to medical opinions and the like set out therein is a matter for argument.
THE COURT: Well, I mean, there's no weight to be provided to medical opinions, if there are any in this document. I mean, that's fairly clear.
MR. ECCLES: Yes, My Lord. That was the Crown's concern. We don't wish to open the door to suggestions that --
THE COURT: By tendering it, you're not endorsing or
adopting any apparent medical opinion stated in here. I don't think you need to worry too much about that.
MR. ECCLES: Certainly, My Lord.THE COURT: Exhibit 17.MR. ECCLES: Thank you, My Lord.
EXHIBIT 17 (on voir dire #1): Cannabis Buyers' Club of Canada informational pamphlet
A I still have Exhibit A. Would you require this still?
MR. ECCLES: You can hand Exhibit A back to Madam Clerk, please, once she's finished with Exhibit 17.
Q Now, returning to the volume of Health -- Health Canada website information, Tab 2, various headings, "Drugs and Health Products," and then information, is this information that you were aware of in 2009, this sort of information, or the existence of this website?
A Oh, I certainly knew of the existence of the website and -- and would have, you know, at several points, you know, looked through it for various information, you know, when people ask questions and such.
I believe I actually have this in print, even. I've got lots -- I prefer stuff in print than online, and try to get -- and a lot of our members do as well, so this is the kind of information that we actually probably have in our binder. Because we've got a binder that has, you know, Health Canada's information, beyond the actual regulations and stuff, in it. So I'm pretty sure I have an earlier version of this. The -- you know, might be the very same, but it does look somewhat different.
Q And if you could turn to Tab 3, and that's the statistics section, a two-page, and the top of the page reads: "Drugs and Health Products, Marihuana for Medical Purposes - Statistics (December 4, 2009)," correct?
A Correct.Q And it's a possession --A The day after the bakery raid.Q And have you been to the website recently to see
out on the website?A I believe I looked in December when I was writing
an article, but I can't recall the numbers from that. I guess I hear a lot of numbers, and I haven't really focussed on Health Canada's statistics. It hasn't been directly related to my work, you know.
Q Under the heading, "Possession of Dried Marihuana," it indicates 4,793 persons hold an authorization to possess dried marihuana under the MMAR. I take it you're not aware of the numbers or the number of licence holders as of December 4, 2009?
A You mean licence holders that were members of our club?
Q No, licence holders generally, across Canada. Did you know how many people were licensed under the MMAR as of December 4, 2009?
A Before looking at this, no.Q And for cultivation and production of marihuana,
either by way of a personal use production licence or a designated personal production licence, you weren't aware of the statistics in relation to how many people are licensed to produce their own marihuana, or have someone they've designated to produce for them who holds a licence to do so; would that be fair to say?
A Yeah, it's fair to say that I've -- I've never really tried to keep a current count of how many people Health Canada has -- has admitted to its program. It's quite clear to me that it's but a small fraction of the people that need it, given how many people are -- are in my club, compared to how many people they help across the country. But I've never tried to kind of keep a running tab on how many people have gained entry into their program, that -- I would see no -- no purpose in doing that.
Q So with respect to the second page of this document, you can't assist us as to whether -- or you don't know whether the columns there, the province, total authorizations to possess, and the total number of physicians who support current authorizations to possess, and there's a little sort of -- there's a total physicians, bracket, A, end bracket, and at the bottom of that table of information, A, "Physicians are only counted once
if they supported more than one application." So you can't say whether in December of 2009,
or currently, you were aware that Health Canada advised that as of December 4, 2009, for example, there were 153 physicians in Alberta who were supporting MMAR applications? That's not something you were aware of?
A That's not something I -- I would have looked into. You know, I may have seen these kinds of statistics. I certainly -- you know, this kind of information comes to me all the time. But this isn't the kind of information that I would actually try and retain. You know, lot of times, you know, you look at things, and it's, like, oh, okay, that's interesting. And, you know, again, there's no real direct relevance to my work. It's really nice to see that there is an increase in -- in the chart below it, and I would hope that -- that that continues at -- at that rate, because of the number people not -- not gaining access to the program.
But, yeah, as to these numbers, it's not something that I would have ever tried to -- to retain in memory.
Q And if we turn to Tab 4, there's further statistics on marihuana for medical purposes. November 6, 2009 is the date of the statistics, apparently. And it has the number of persons authorized, cultivation, distribution of seeds, et cetera. This is information, I take it, that is available on the web site but isn't something that's -- you were in a position to assist us with, as to your -- you don't know this sort of information off the top of your head?
A Certainly not off the top of my head, no.Q And when you're sitting down with a potential
member of the CBC of C, this is not information you refresh your memory on before you sit down and tell them about the MMAR program; have I got that correct?
A Oh, that's certainly correct. I wouldn't see any purpose in doing that. We encourage them to do this individually. But in terms of, you know, how many doctors there are or -- or not in this province signing forms or -- or otherwise, you know, we -- we don't really keep track of these statistics, no.
Q And at Tab 5 of the book before you is a five-page document, ques -- entitled at the top of the page, "Questions and Answers Regarding Amendments to Marihuana Medical Access Regulations," and it appears to have a date below that, February 2006, and then a series of questions and answers about amendments to the Marihuana Medical Access Regulations, and the like. It goes on for four pages, albeit the last page, the fourth page, is a one sentence. Correct? Just to make sure we're on the same tab and the same materials, correct?
A Yeah, on the same page.Q And it describes the recent amendments, and these
amendments, second phase -- Phase 1 is December 2003, according to the document, and then there were amendments after that.
Pausing there for a moment, you are aware from your work with the CBC of C, and from your involvement in the legal process, that there have been amendments to the MMAR in response to court decisions, correct?
A Oh, I have tried to follow the court proceedings and decisions as closely as possible. That has been very much a focus of -- of my work. And there have been a series of court decisions across Canada that have asked the government or -- or told the government to -- to make changes that would make the program more accessible, and even to open up supply, because originally Health Canada didn't have the means by which for people to supply themselves but to grow their own. So some of the earlier decisions were -- were to force Health Canada to -- to open up the door to -- to supply.
And so I -- I -- I don't know of any amendments that have occurred that were the result of the government thinking on its own. I think Health Canada's made amendments because courts have ruled the program unconstitutional. And even now the amendments that are coming around the corner are because of continual decisions or constant decisions striking down the MMAR, plus the added pressure that's being applied from -- from other areas that are changing them to essentially gut the program into something totally different. And that again has been prompted by, you know, in my understanding, and according to
Health Canada officials, court decisions telling them that -- that it's been inadequate.
Q The process whereby the MMAR regulations are amended, from your correspondence with the Honourable Ujjal Dosanjh and with staff from the MMAR program itself, has advised you that there are stakeholder committee meetings, and there are processes whereby regulatory change occurs. We'll get to those in a minute, but you're aware that there is a process in place, correct?
A There is a new process in place. I believe as of 2006, when these regulations were brought in, they actually disbanded the stakeholder group that was providing information to them, and declared that in fact the program was fine and -- and perfect, and didn't need amendments any more, and that stakeholder group has not been in existence since. And now there's a new process where compassion clubs have been identified as a stakeholder, but we don't have a representative; there's not a larger, broader stakeholder group. They've divided us up into stakeholders, so they'll meet with the police separately, they'll meet with various medical associations separately, you know, municipal authorities, and such. But there isn't a real stakeholders' committee, where a representative of patients or compassion clubs could actually, you know, address the problems to the broader group, or -- or such.
And so the stakeholder process really has not been in the spirit that many of us would have appreciated.
Q That's your understanding of the process, correct?A That is, yes.Q And you yourself have never been on a stakeholder
committee, you've never attended a stakeholders' meeting, and you've never been present in the room when they've discussed matters, have you?
A My understanding is they're not public meetings, so no one aside from the stakeholders have been invited to these, and they were hand picked back in the very early stages of the program, and to my knowledge, aside from a couple of patients, no one in the actual cannabis industry has actually been a part of those stakeholders meetings.
Q Do you know whether individuals from Prairie Plant Systems had attended stakeholder meetings or had
input into them?A I don't believe they were considered to be one of
the stakeholders.Q Do you know whether Hilary Black out of --A Oh, I know --Q -- previously of BCCS has made representations to
the stakeholder committee?A I know for a fact Hilary was not a member of the
stakeholder committee. I have seen the list. It's been several years since it's been disbanded, but the list is primarily made up of organizations like, I think the Canadian National Institute for the Blind, was one of them. Canadian Cancer Society was another one. So there's a few medical associations and doctors groups, and a couple of patients. But again, no one in the actual industry that works with patients or with the plant was a part of that stakeholder group.
Q Perhaps my question wasn't clear. I didn't ask whether they were members of the group. I asked whether to your knowledge they had made representations --
A Oh.Q -- provided written materials or the like to the
stakeholder group for their consideration. Do you know?
A I don't know any of the information that the stakeholder group had privy to. None of their meetings or discussions were made public. It was something that was done completely in house by Health Canada. Believe me, if there was any information about those meetings that were made public, I would have found out about it.
Q Were you -- are you aware of, or can you assist me in advising where your understanding arises that the streamlining of the application process, the shortening of the forms, the alterations to the renewal process, the decision not to require new photographs every year, and the like, was based on which decision of which court, do you know?
MR. TOUSAW: I rise, My Lord, simply to object to the question. I think it assumes a number of facts that simply aren't in evidence before this court. I hear my friend talking about streamlining of processes, and not requiring new photographs, and things of that nature, but I haven't heard any evidence on that point.
THE COURT: Well, the --MR. TOUSAW: -- other than from my friends.THE COURT: Presumably Mr. Eccles can ask the witness
whether he is aware that some form --MR. TOUSAW: Yes.THE COURT: -- has been streamlined. I'm not sure how
much that helps me if I don't have anything to compare it to. But you're right, the question seems to have jumped a couple of steps too far along the path.
Maybe this is a good time for the morning break, and we'll come back to it in 15 minutes.
MR. TOUSAW: Thank you, My Lord. THE CLERK: Order in court.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)(PROCEEDINGS RECONVENED)
THE CLERK: Order in court.
LEON EDWARD SMITHa witness called for the Accused, recalled.
CROSS-EXAM ON VOIR DIRE BY MR. ECCLES, CONTINUING:
Q Mr. Smith, looking at Tab 5 that -- of the volume that is no longer in front of you.
THE CLERK: [Indiscernible/away from microphone] break. A Thank you. Tab 5, you say? MR. ECCLES:Q And it discusses, under the questions and answers,
Question 2, "How will the process be streamlined?" And then there's an answer that's provided. If you'd just read the answer over to yourself, and then I'll have some questions regarding the information there.
A Okay.Q Is it your understanding that that streamlining of
the process described there was in response to directions from the court, or can you say?
A I -- I believe it was. I'm just trying to think of which case --
Q That would be the number of categories being reduced from three to two, merging what were
previously categories one and two, and changes to the number of doctors who were required to sign the forms, and the like.
THE COURT: Mr. Eccles, the witness might be able to tell me whether this change followed a court decision, but on what basis can this witness tell me why Health Canada did something?
MR. ECCLES: Yes, My Lord, sorry. First, I'm trying to clarify for the record
what it is we're discussing here, in case there's some issue with my friend regarding the admissibility of this particular e-mail -- or this web page, I should say. And then I was going to ask the witness whether it was his understanding those changes I've just described, because he's only read them to himself, were in response to a court decision, if that's his understanding. And I've not been sufficiently clear on the question. My apologies. And that's what I'm endeavoring to find, as to whether it's his understanding this change is driven by or follows upon a direction from the courts.
THE COURT: What's the relevance of his understanding of that? I mean, if Health Canada amended their processes as a result of a court decision, either you'll get an admission from Mr. Tousaw about that, or somebody from Health Canada will come along and say this is why we changed our application process. But is there some relevance to his understanding of this?
MR. ECCLES: As the directing mind of the CBC of C, the employer of Mr. Edward Owen Smith, and the directing mind of the bakery that's involved and the distributor of the product of that bakery, and given the nature of the issues engaged in this case, in my respectful submission, it may well be, My Lord.
The difficulty the Crown has is we've been in receipt of the defence expert report for a limited amount of time. We are not in receipt of any indication, other than this witness, as to who will follow upon this witness. We have no indication of the evidence they will provide, no indication of why they will be called, other than a general statement that they will be testifying as to the assistance they have gathered from the CBC of C in the provision of medications. We have
no indication of why, how, when, where, what other sources they rely upon.
We are to a great deal, in my respectful submission, being required to respond on the fly to a multitude of issues that are identified in a Constitutional Questions Act application, followed by a pre-trial conference summary that indicates a number of issues that we still don't know whether they will or will not be alive at the end of the day. Amongst those issues will be, or may be, the bona fides of the operation of the CBC of C, as well as the understanding and response of the directing mind of the CBC of C, and accordingly, in my respectful submission, the knowledge base and experience of the directing mind does become relevant.
It's the difficulty that a Crown faces when they're the respondent and there's no obligation at law on the applicant to disclose the case the Crown must meet, save and except expert report, period.
THE COURT: All right. So the relevance is that this witness is -- as the employer of the accused person, his understanding of whether Health Canada has responded to various court decisions.
MR. ECCLES: Well, My Lord, perhaps we could excuse the witness to canvass this in his absence, since he is under cross, and this may take a minute or two.
THE COURT: Mr. Smith, would you step outside, please?
(WITNESS STOOD DOWN)
THE COURT: I mean, I should note, Mr. Eccles, I know there has not been an objection from Mr. Tousaw, but I need to know this because I need to know how accurately I should be recording what I am taking in as marginally relevant or completely irrelevant. And if I'm missing it because I'm not quite grasping the relevance of this evidence, it's probably better that we figure that out sooner rather than later.
MR. ECCLES: Certainly, My Lord. The difficulty the Crown faces and
anticipates Your Lordship may well face is, in weighing the evidence Mr. Smith offers as explaining why the CBC of C engages in the conduct it engages in, and what appears to be at the
moment marginally relevant evidence, at best, as to the bona fides and goodwill of the CBC of C, the difficulty, in the Crown's respectful submission, is that one of the issues that may well arise at the end of the day for Your Lordship to assess, depending upon the nature of the issues being advanced, which at the moment the Crown is still in a state of blissful ignorance about in relation to a few of them, the difficulty that arises is the evidence of Mr. Smith may well be relied upon by the defence as an explanation of the conduct of the CBC of C, a rationalization for that conduct, a justification for that conduct, all of which goes to the necessity defence that may well be offered at some point. The credibility and reliability of the witness's evidence becomes a potential issue.
The witness has made a number of statements regarding how and why events occur, that in my respectful submission the Crown is entitled to explore the foundation to, because it may well be at the end of the day that Your Lordship will conclude that portions of the evidence offered by Mr. Smith do not have any foundation whatsoever, other than Mr. Smith's personally held beliefs that do not appear to have any factual basis for them.
If that is the case, and those are beliefs communicated to the members of the CBC as gospel truth, for lack of a better phrase, or as foundational justifications for conduct, then the foundation becomes weaker, the credibility of the witness becomes weaker, the witness's understanding and grasp of the areas that are engaged in a program that provides an illegal substance of as yet unproven medical efficacy, to members of the public.
The Crown, in my respectful submission, is entitled to explore the basis and foundation of Mr. Smith's beliefs as the proprietor, founder, and directing mind of this organization. And it may well be at the end of the day, if in some areas the Crown can establish that Mr. Smith is simply mistaken, that may go to other areas of Mr. Smith's evidence that the Crown will call evidence to contradict or to suggest Mr. Smith's beliefs are not as well founded as he might beli --
currently believe them to be. If that is indeed the case, it may raise the possibility that Your Lordship will hold doubts about all of Mr. Smith's evidence.
That is why the Crown is exploring this area with Mr. Smith, because his assertion in response to a question of the Crown was that as he understands it, there have been no changes to the MMAR that were not driven by court decision, that the MMAR is only revised or changed or updated in response to directions from the courts. That does not accord with the Crown's understanding of regulatory changes that have occurred. Some have been driven by court decisions, undeniably so, and in the fullness of time Your Lordship will have a book of authorities, and no doubt an outline of the development of the program, the cases that have driven the program, and the program's response to directions of the court.
Mr. Smith's belief that he has expressed is a matter that in my respectful submission, if he is mistaken and he is prepared to acknowledge that perhaps I don't know what drove this change, I don't know what drove that change, that is a matter the Crown can point to at the conclusion of this case as saying Mr. Smith tends to make over-broad assertions that are not supported when the foundation is tested. If he makes over-broad assertions in this area, perhaps he does in other areas as well. Some of those areas may be of no relevance whatsoever to Your Lordship, they may not be of any concern to Your Lordship, but they may or may not be a considerable concern to the Crown, and they may or may not, at the end of the defence case, impact on what evidence the Crown has to tender in reply.
It will also depend on, of course, Dr. David Pate, who, we don't know what he'll say about these things, but we'll find out, perhaps.
That's the difficulty for the Crown here, My Lord, and that's why I am asking for a wider indulgence, perhaps, than is the normal case, in exploring these areas with Mr. Smith. He is the directing mind. It's his organization.
THE COURT: Mr. Tousaw.MR. TOUSAW: Yes, My Lord. I just rise to address a
The first is I am -- I'm at a bit of a loss to understand the Crown's position that it is unaware of the case that it's being asked to meet. There has been a Constitutional Questions Act notice provided. There is a detailed pretrial summary. I was not under the impression that my friend was unaware of what this case was about. I'm certainly available and open to my friend to answer any questions he may have along those lines.
I -- I have not provided detailed witness statements from each of the patient witnesses that we intend to call, but generally speaking, for my friend's edification, they will testify to their medical conditions, the assistance that they find from cannabis and cannabis products, their individual histories, both from a medical point of view and with the MMAR, and with the Cannabis Buyers' Club of Canada and the products that Mr. Owen Smith is accused of producing for that organization.
So I'm happy to, outside of this room, have further detailed conversations with my friend. And I ought to add that sitting here today I have absolutely no idea whom the Crown will or won't call. I don't even have the name of a single witness the Crown may call in this matter. And so I'm a little taken aback to hear that the Crown is operating in the dark.
With respect to this particular line of questioning, either Mr. Smith is correct or he's incorrect that the changes in the MMAR were driven -- all driven by court decisions or not. Presumably someone from Health Canada will at some point in these proceedings attend and speak to us about those changes, and what may or may not have driven them, and all of the changes in the MMAR, to my knowledge, were accompanied by regulatory impact analysis statements that are going to be put before Your Lordship and explained, at least the Federal Government's view of what is occurring in the amendment process.
But as I say, either Mr. Smith is right or wrong, and I think my friend can demonstrate that without taking Mr. Smith down this path, using material that he's said he doesn't recognize and hasn't reviewed in any great detail, at least in
THE COURT: Any reply, Mr. Eccles? MR. ECCLES: Yes, My Lord. With all due respect to my
learned friend, my learned friend has been provided with reports of Ms. Valerie Lasher, Dr. Harold Kalant. We are in the process of discussing whether the report of Dr. Kalant will be admitted.
My friend provided the Crown with his expert report, that of Dr. Pate. My friend's -- I received it, either Monday or Tuesday of last week. It may well have been forwarded to the office on the Friday. I believe I was in trial here on the Friday. I can't remember any more. But be that as it may, the Crown did not have anything to respond to from Dr. Pate until we had a report. Once we had that report, we then have to ascertain whether Health Canada can secure the services of an expert to respond to what's set out in Dr. Pate's report. That is something I have not been able to advise my friend of who the expert is, because as yet we haven't secured one. However, the other experts my friend does know about. He's aware of the statistical evidence the Crown anticipates tendering. He has the affidavit of Jean Richeau [phonetic], as -- attached as a certified copy to an affidavit of Sharon Zabato [phonetic]. It sets out the statistics. My friend has advised he wishes somebody brought here from Health Canada to tender that evidence viva voce, because he may have some questions about those statistics, but he certainly can't say he isn't aware of them.
My friend indicates that he doesn't understand why the Crown can say that they're unclear on the issues. Your Lordship can of course read my friend's Constitutional Questions Act application material. In that material my friend identifies a number of areas he may challenge the MMAR on, including the question of whether a physician is an appropriate gatekeeper.
The Crown understood the issue to be canvassed on this application was, as I had advised Your Lordship on Monday of this week, namely whether or not the definition of cannabis within the MMAR as dried marihuana product is
unduly narrow, and thus creates a constitutional infirmity in the legislation. There was no indication to Your Lordship from either my friend or myself on Monday that the physician as gatekeeper issue was alive in these proceedings. I have no indication from my friend that he is abandoning that issue or will not pursue it. He may or may not choose to pursue it through patients whose names we do not even have. We have no idea who these people are. We don't know what their conditions are. We don't know who -- anything about them, whatsoever. But they may well suggest they can't find doctors, and accordingly there is an access issue. We simply don't know.
With all due respect to my friend, it's a bit disingenuous to say the Crown knows because they have what amounts to a boilerplate CQA application form indicating various issues, a pretrial conference summary that seems to indicate there is only one issue, has one sentence in it suggesting access may be engaged as an issue in the proceedings, but no indication as to whether the Crown should be gathering evidence in response. We don't know what we're responding to until my friend closes his case.
THE COURT: How does all of this come back to this witness talking about why Health Canada has effected certain changes and the relevance of that?
I mean, the problem I'm having, Mr. Eccles, is, maybe I'm wrong about this, I thought that this witness was asked a question to which he responded, you know, somewhat abruptly, well, Health Canada only ever changes the MMAR in response to court decisions making them. Now, if that's a cross-examination question, aren't you stuck with the answer? That is, I view that, subject to being persuaded otherwise, as so completely collateral that if there's an objection from Mr. Tousaw, you probably wouldn't be permitted to call somebody from Health Canada to say, no, we change it for other purposes. It's purely collateral.
But, and so I'm looking at this, and I'm saying, you know, if there is a trunk of relevance to the evidence I'm hearing, and the trunk of
relevance has branches that are arguably relevant, when we come to why Health Canada may be amending its regulations from time to time, we're so far out into the leafy bits that I'm not sure why we're dealing with it. And I understand your worry about credibility, but you run into the collateral evidence rule, don't you? Particularly when it's a witness, not the accused. I understand he's the accused's employer, and he was paying the accused Mr. Smith to bake cookies with cannabis in them.
But, I mean, aren't we so far out in left field, or into my leafy bits, that -- I'm just not quite sure why we're doing it, other than you'd really like to be able to show this fellow wrong about why Health Canada has made changes to its regulations, and I'm not sure you'd be permitted to, if there were a challenge to it.
MR. ECCLES: Well, I may be able to streamline the entire questioning process by simply asking the witness what if any direct knowledge does he have as to how or why the regulations change.
THE COURT: And I'm assuming if he's got any sense, he's going to say, absolutely none.
MR. ECCLES: And then I will abandon this line and move on.
THE COURT: Good. Let's have him back.
LEON EDWARD SMITHa witness called for the Accused, recalled.
THE COURT: Go ahead.
CROSS-EXAM ON VOIR DIRE BY MR. ECCLES, CONTINUING:
Q Mr. Smith, what if any direct knowledge do you have as to why Health Canada amended the MMAR regulations?
A I would gain my understanding primarily through the media, and -- I -- I -- I don't think Health Canada themselves have ever publicly declared their reasons or justifications for these amendments. They traditionally get published in the Canadian Gazette as they are, with no explanation for them. And the media, I believe, have tied the new amendments with court cases like
the Hitzig decision that have, you know, declared certain sections invalid, and so the -- the tie between the court decision and the amendments was one that would likely have been made in the media. Because as I've said, Health Canada, to my knowledge, hasn't, you know, implicitly stated why they've made any of their amendments.
Q So you -- you don't have any direct knowledge yourself personally of the process Health Canada engaged in and how they arrived at the amendments; your knowledge is derived from media and from reading the final amended regulations; is that a fair summary?
A Between reading the media, reading the amendments, and hearing argument in -- in court, it has appeared to me to be like that. Those would be the three areas, I guess, that I would get my information from.
Q Now, if you could return to the blue binder that's in front of you, and if you could turn to Tab 9 of that document? Actually, no, sorry, Tab 10.
Tab 10 is a 52-page printout of information available on the website, and the entitlement is -- to the article is, "Drug and Health Products; Information for Health Care Professionals." And then below that the date, September 2010, and below that, "Marihuana (marihuana, cannabis) dried plant for administration by ingestion or other means." And then the table of contents is below that: "Chemistry"; "Clinical Pharmacology"; "Dosing," at 3; "Purported Indications and Clinical Use," heading 4. Heading 5, "Contraindications." Heading 6, "Warnings." Heading 7, "Precautions." Heading 8, "Adverse Effects." And heading 9, "Overdose and toxicity." Correct?
A Correct.Q Have you reviewed or read this document at all
prior to giving your evidence in these proceedings?
A No, I -- I think I've missed this. Thank you for bringing it to my attention.
Q Does the CBC of C have anything to your knowledge that deals with these various headings that can be made available to -- in written form to applicants?
A I believe we have something similar to this, but
it would be more outdated. I see the, you know, September 2010 date on this, and so I'm quite sure we have an older version of this, but I -- I don't think, you know -- again, we've got a little blue binder ourselves at the Club that's got the regulations and -- and other information in there. But it was not known to me that an updated version of that was available, and -- and it seems to me that this is much more detailed than what was previously made available.
Q Page 30 of 52, if you could turn to page 30? There's a reference list commencing on page 30, and it runs through until page 52, with the final note numbered 476. Correct?
A That is correct.Q Does the CBC of C provide anything that references
any of the materials that are footnoted or that are listed here, all 476 different sources of information? Does the CBC of C provide that sort of information to its membership?
A Well -- THE COURT: Mr. Smith, have you read the sources
listed? A No, I --THE COURT: You might want to look at them --A -- was going to say --THE COURT: -- before you answer the question.A -- that's a list -- THE COURT: Mr. Smith, when I'm talking, you don't.
You might want to look at the list before you answer the question.
A I'm sorry, Your Worship.MR. ECCLES: Q Take your time. There's no rush. It's a very,
very long list. You may recognize some of the materials that are listed there. You may not.
A Could I have a pen to make notes while I go through this?
Q Would you like some paper? A If -- if I could. Thank you.Q Make sure the pen works.A Okay, well, I've had a cursory look at all 476 of
the studies there, and that is a very excellent grouping of studies. As I've said, I've not seen this list before. We've got probably three binders of medical information at our club. To be honest, we haven't printed off in the last -- in
the last couple of years very many and added to that, but we do have those binders available.
I would think now if a member asked us for this kind of information, we would search for it online and print it off on demand.
As to whether or not any of these particular studies are included in -- in ours, I -- I've recognized several of them and their name, but I'm not a scientist, this isn't an area that I've dived into myself, so for me to say with certainty that any of these studies are included in our library, I can't do. But certainly, you know, the general areas that are covered in here are ones that we've tried to -- to, you know, get information for and have that information readily available.
Q I take it from your answer that the CBC of C has not prepared a document that, as does a balance of the first 32 pages of that document, as the table of contents indicates, the CBC of C does not have a comparable document that can be made available to the members discussing the various headings, contraindications and the like, that are in that document? You don't have anything comparable to, you know, something to give your doctor?
A Oh, we would have the earlier version of this document. Again, this one here looks to be from 2010, and so we do have, you know, the -- the earlier version of this available, you know. And, you know, that is something that, you know, can be requested at any time if -- again, we really encourage people to bring up any concerns they have about our products, and -- and such. So we would have the older document. We don't have this one.
MR. ECCLES: I'm going to move on for the moment. Before I do so, My Lord, I would ask that this particular book of information that has been put before Mr. Smith be marked as an exhibit for identification. The Crown does anticipate calling a witness in one capacity or another, or in one capacity or another tendering the entire book as an exhibit proper in these proceedings, either through a witness or as legislative fact evidence. Given that it has been put before Mr. Smith, and may well become evidence in the proceedings at the end of the day, the Crown seeks to have it marked
for identification now, so that we will have and Your Lordship will have a clear record and a clear indication of precisely what it is that we have been referencing in the examination.
THE COURT: C for identification, then.
EXHIBIT C for identification (on voir dire #1): Binder of Health Canada MMAR information
MR. ECCLES: Q Now, Mr. Smith, I'm going to try to move a little
more expeditiously through the next portion, but as I cautioned you earlier, we're going to be talking -- I'm going to be asking you questions about numbers, and I'm not gifted when it comes to arithmetic, so if what I'm asking you appears to be a mistaken number crunching on my part, please do tell me.
But you indicated in response to a question about assisting members -- and you mentioned products you sell. Now, earlier in your evidence, I may have mis-noted this, but as I understand it, the CBC of C, 80 to 90 percent of your sales at any given time would be dry cannabis rather than edible products or topicals, is that correct?
A Oh, it would be closer to 90 percent than 80. Possibly closer to 95 percent than 90. And part of that would come from, you know, how inexpensive the cookies are. But certainly the majority of the product we sell is the raw herb.
Q Now, the raw herb, how do -- how do you sell it? Gram form, quarter ounce, ounce? What's the most a member can buy at any one time?
A Well, Your Honour, we have at any time ten different kinds of cannabis available to sell. We put them in small -- there's samples in small jars in a display case so that they can have a look at the plant visually. We distinguish the strains between strains that have more muscle relaxing effect --
Q Mr. Smith --A Okay.Q -- I'll back up, and I just wanted to know
what's -- start here, what's the price per gram?A Okay. Well, we have several different grades of
Triple-A, and the prices are determined by the grade, and the way we work is by the gram. And it starts out, I believe the Triple-A you get 1.1 grams for $10, the A, you get 1.2 grams for $10, and the B, you get 1.4 grams for $10.
And then, different from other clubs that charge by the gram straight up, the more a person spends, the less expensive it is per gram. And so, as say -- so instead of say at, you know, 1.1 for $10, at 28 grams that would end up being $308, if you, you know, are -- it is prorated such that the ounce price per Triple-A is actually 200, and so that, you know, once you start buying more than $30 worth, the amount you get per $10 increment grows. And so the value of the A is 180 an ounce, and of the B is 160 an ounce.
Q So there is a discount for bulk purchase offered to members, correct? Of sorts?
A I wouldn't -- I don't know if I would phrase it as a discount. The more you buy, the cheaper it gets.
And you asked me about a limit earlier. We have certainly limits around how much a person can purchase. On any given day, no one can purchase more than an ounce, even if they have a Health Canada licence that they can possess a thousand grams, they're not going to purchase more than the 28 grams that they're allowed. With some rare exceptions that I make personally myself, where sometimes people are travelling, or live far away from Victoria. I mean, we've had people that have moved away and come back and visit, and such, in which circumstances I allow them to purchase an ounce and a half, and we make extra notes about the situation. And because I'm the only one that verifies exceptions to the ounce rule, I'm quite aware of who's doing it and how often, to make sure that there's no real possibility that it's being distributed elsewhere.
Q And earlier in your evidence the number of -- you mentioned something about $6,500 per day in current sales on -- as an average?
A Approximately 6,000 to $6,500 a day would be what our club would take in.
Q Does that --A Again, we don't have records, so it's just a
Q And does that ballpark include 5 to 10 percent for edible products?
A That would include that, yes.Q So the sales of dried cannabis would be thus
somewhere in the neighbourhood of $5,400 to 5,950, and then the balance edibles?
A Sure, something like that.Q Now, without indicating who it is you're
purchasing bulk from to provide to the membership, what's the price, and how -- well, first of all, do you buy by the pound, by the half pound, from your growers?
A We essentially, you know, have a handshake contract with our growers, and we will set a price, upon working with them initially, although that price can vary, depending on quality. The most common price that we're paying right now would be 2,400 a pound, although we do pay $2,600 a pound for the Triple-A.
We have many concerns about the quality of our product, and so we are actually paying more than street value right now, because we're so demanding upon the growers, the quality of the product. And so typically we would purchase more than one pound at once.
When you grow cannabis, you have one of two options. You have -- well, you have many options, but you can either set your grow op up to crop off every three months, and so have a number of people that show up, you know, without any warning and leave us, you know, say four pounds at a time, would be quite typical, and -- and then they would get paid for that in two weeks time, is the way we work, because we won't pay for it unless it's sold. If there's a problem with the product that we find, then we don't pay for it and we return it.
And so typically $2,400 a pound is the price that -- that the growers get at this point.
Q You've -- well, the other -- how many grams per pound? I've heard evidence in some proceedings that in the glorious United States of America a pound for some odd reason is 450 grams, and in Canada it's 454 grams. Do you draw that distinction? Do you quibble over four grams?
A We don't quibble over the small amounts. The people that grow for us generally would put in a
little bit more, and typically if we weigh what they bring in, you know, there may be times where, you know, people have weighed it at 112 grams for a quarter pound, or 224 for a half pound, and that's 448 grams for the full pound, which is a little bit less than what one would technically be. But most of our growers don't weigh it to that measure. They would over-weigh it somewhat. But, yeah, it's -- ballpark, that's good enough.
Q And the sales to the CBC of C's customers, you sell, I take it, up to one ounce, so that they were increments, I take it? You'd sell --
A Oh, people can --Q -- single --A Yeah, as much as they can afford on that given
day, down to $5 worth. We used to sell down to $2 worth of herb, but that was quite problematic, and we were pretty much losing money every time it was happening, and would have people coming in, buying $2 worth at a time several times through the day, if they could, as -- and so we've had to bump that up to $5.
And there are other rules around how much they can purchase, in terms of the number of visits a day that they're allowed to have. We have a -- what we call a small purchase rule, that if they make a small purchase in the morning, they can come back later. We have a lot of members that would panhandle, for example, or have, you know, various odd jobs that they could do. We have a lot of bottle collectors that are members of the Club. So sometimes they'll come in first thing and buy a small amount to get them through the day, and then come back again later.
We certainly are -- are keeping track of, you know, purchases, in some sense. Not every single one, but we probably have about, you know, couple hundred members flagged whose purchases we're keeping, if not track of every single one, we're kind of keeping an eye on them in case they -- they may be redistributing.
Q Do the bulk of the CBC of C members, to your knowledge, purchase smaller quantities, one to two grams, for -- for their medical use on a daily basis, or -- I'm trying to discover how many people avail themselves of the opportunity to, for example, buy an ounce, and thereby save a hundred
dollars, in effect. A We've got a very broad range of members, so, you
know, the vast majority of our members live day to day. You know, I'd say 60 percent or so, maybe 70 percent of our members are on disability, or Canadian Pension Plan, and stuff, and they may be able to -- to afford to buy a larger amount when they get their cheque. But most can't afford to -- to do that. Well, they'll buy a bunch more, because they get the discount, but, you know, most people on those forms of assistance can't afford to buy an ounce or so at a time. On the other hand, you know, we've got 30, 35 percent of our members that are working right now. You know, many that own businesses and -- and are, you know, doing okay for themselves, so that they can purchase cannabis when they need it, not when they can afford it.
And so, ironically, the people that get to take advantage of the -- the price breaks the most are the ones that could afford to pay more. But it -- you know, so, you know, there are those that do take advantage, you know, of that. But again, those would be the people that were -- were better off.
Q Do you have any idea of, before overhead and staffing costs and rent costs and the like are factored in, what the profit margin is, as, you know, the price to the CBC of C per gram and --
A Mm-hmm.Q -- then the sale price per gram? What's the --
the difference that can be used by the CB of C to -- CBC of C to cover their overhead?
A Okay, well, I've tried to do my best in coming up with the price ranges to make it so that our profit margin above cost of goods sold is about 20 to 25 percent. So off every say thousand dollars, we would, above the cost of the herb, take in, you know, 200, $220 to pay for, you know, wages and such. And so -- did you want me to run that through on a day, or --
Q Well, no, I'll have to back up, because I'm not quite understanding.
A Okay. Q If there's a thousand dollars in sales at the
counter, the product being sold to the membership costs the CBC of C 800 to -- 750 to $800, and then
that leaves the CBC 200 to $250 to cover overhead and the like; is that -- have I got that right?
A That's roughly, you know, correct. You know, I don't think -- if you go to the price chart, there may be some areas where it's a little bit more than 25 percent. But I believe, you know, really 25 percent, you know, to 20 percent is the -- the range that I've looked for. Again, it depends on, like, honestly our B grades are sold closer to cost than our Triple-A. We make more money percentage wise off of our Triple-A than our B grades. And that's intentional, you know. People that have less money would spend it on what we call the B grade, so they get more medicine for their dollar. So we've tried to -- to factor that in a little bit too, that, you know, the people that buy the Triple-A are sort of paying a little bit -- or we're making a little bit more money off them than people buying the lower grades.
Q Now, from that 20 to 25 percent difference, I take it you cover rent, correct?
A Yeah.Q Cost of the employees who work for you?A And -- and that is certainly the bulk of the
expenses. You know, we make sure that we've got as many people as possible working in there. And so right now on most days, you know, there would be, you know, seven people, probably, on a day, working for that day, and at $125 a piece, that's pretty much $900 worth of wages, 900 to a thousand, on any given day. So, you know, our rent is less than a hundred dollars a day. And other expenses, utilities, lawyer fees, and such, also add up.
Q Now, hundred dollars a day for rent. Labour costs, $900 a day, roughly?
A Sure.Q Insurance?A Yeah, we have insurance. Gee. Trying to think
how much it is a year. It's ...Q Standard business insurance, I take it?A Yeah, it's standard business insurance, so it's --Q Your premises are insured against fire, theft,
flood, and that sort of thing? A Yeah. Our premises are rented under non-profit
society, which is why we don't need a business licence to operate, but it allows us to, you know,
engage with utilities and insurance and all the necessary requirements to have the place.
Q So under a non-profit society, what is the non-profit society?
A The Lacuna Book Exchange Society [phonetic]. After I lost -- or gave up my licence for Ted's Books, we endeavoured to rent under a new group.
Q And does the Lacuna Book Exchange Society all -- who keeps the books for CBC of C? Is it the Lacuna Book Exchange Society, or are they the entity used to secure hydro, electricity, pay rent and the like, but --
A Mm-hmm.Q That's what I'm trying to find -- what do they do?
What's their role in the CBC of C?A The Lacuna has a very limited role in maintaining
the space with us. The Cannabis Buyers' Club itself doesn't keep records.
Q What about HST/GST; do you charge your members that?
A No, we don't.Q Do you remit HST/GST on sales?A No, we don't.Q How does the CBC of C, or does it, file a tax
return?A As an organization we don't. Individually, we
declare the income that we're taking. So I have declared for several years now $24,000. Not that I know exactly how much I've -- I've taken out, honestly, but I would presume that I've taken out close to that. Probably not the entire 24,000, but I thought that I would be better off highballing it than lowballing it. I honestly take as little as I possibly can from the Club. And so other staff, you know, declare their own income. But the organization itself is -- is not incorporated.
Q Does the organization, the CBC of C, keep books, track payment and expenses?
A We have records of our current accounts, but we don't have old records of how much, or who we've -- we've dealt with. We just kind of have a current balance with -- with people that we keep track of.
Q From your under -- the manner in which you as the directing mind of the CBC of C operate the CBC of C, is it a proprietorship? It's not an
incorporated entity, correct?A No, it's -- it's not -- as I said, I envision it
as an unincorporated cooperative. So I have plans to incorporate it as a cooperative, with the board consisting of nine members, made up of staff, growers, and members of the Club. That is my full intent, and that is what we -- we plan upon doing.
MR. ECCLES: Thank you. My Lord, I note the time. I just have one last question to ask Mr. Smith, and Mr. Tousaw may wish to -- may or may not wish to avail himself of what I'm about to ask Mr. Smith. He may have the advantage on me here.
Q But, Mr. Smith, we've been talking about the CBC of C. It is a club, correct?
A Yes.Q It's only open to members, correct?A Yes.Q Would you have any objection to myself, or myself
and Ms. Guest, attending the Club over the lunch hour to look at it, so I have some idea of what I'm dealing with here? Doing a tour, in effect?
A I would be honoured.THE COURT: Enjoy your lunch hour.MR. ECCLES: Thank you, My Lord. THE COURT: Two o'clock. THE CLERK: Order in court.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR NOON RECESS)(PROCEEDINGS RECONVENED)
THE CLERK: Order in court. Thank you, My Lord. Recalling the matter of
Her Majesty the Queen against Owen Edward Smith, My Lord.
THE COURT: Mr. Eccles.MR. ECCLES: Thank you, My Lord.
LEON EDWARD SMITHa witness called for the Accused, recalled.
CROSS-EXAM ON VOIR DIRE BY MR. ECCLES, CONTINUING:
Q The CBC of C, does it carry any insurance against liability arising from lawsuits or the like
brought against it by members who may assert that medicine provided by the CBC of C was unsatisfactory or impaired their health?
A No, we -- we do not carry, you know, an insurance plan. You know, I guess all of those concerns would fall upon me. And we do, though -- upon reflection at the break I was able to both update our sign-up procedure and refresh myself. I haven't done many sign-ups lately, and there's many rules in there, and I was able to see that -- or remind myself that the final thing that we say before we give the science lesson is that the Buyers' Club won't be held responsible for any respiratory, mental health, or prolonged medical -- or problems that may result from the prolonged use of our product. We tell them that if there is a problem with the product, that we will take full responsibility for that. But, and as I said before, we have a hundred percent return policy.
But aside from the incident with James Dure, we have not had, you know, any situation in the 16 years of providing medicine on a daily basis where we've done, you know, much more than make someone, you know, nauseous because maybe the pot wasn't well flushed, and it didn't burn well. And that's one of the concerns we have. As you may have noticed in the tour, we have this burn report, because the burn is actually more important to many people than the -- the level of THC, because if it doesn't burn properly, it can make them feel, you know, ill, or, you know, nauseous.
And so that is one of our primary concerns, and we try to manage that by, A) providing a smoking room there, so if people want to test it before they purchase a larger amount, well, then they can, you know, get a small amount and see if it is something that doesn't affect their, you know, nausea at all. And the return policy as well.
But, you know, that is one of the most serious concerns that our club has, which is why we put such great effort into making sure that all our products are safe and healthy, and essentially, you know, we're not doing anything that is, you know, dangerous, or any of the chemicals or such -- you know, the worst that
could happen, or has happened, I might say is some of our products have had a bit too much moisture in it. Our aloe salve in particular is really hard to get all the moisture out of, so there's been types where, you know, there's been a little bit too much moisture left in it, and then there's some mould that would form on the top. But that's something that is obvious, and -- and something that, you know, has been, you know, returned I would say less than -- than five times, you know. You know, like, five individual jars in the -- the few years that we've sold it. And that's a topical, so, you know, it wouldn't be something where a person would be eating, you know, the -- the mould.
I know that there have been rare other problems, again, less than I can count on one hand, where some of the food products seem to have gone bad. And we've tried to figure out what that may have been, whether it was the responsibility of the member after they got it, and it seems that in -- in most of those cases it has been -- been that. But sometimes it's hard to tell, you know. Mistakes can happen in the bakery. You know, we've had -- what was it -- we've had the odd, you know, thing that seemed to have come through the seeds or the flour that appeared into a cookie. Trying to recall what it was. But, like, you know, nothing of anything -- you know, significant that caused harm. Something that we I think noticed, that none of the members actually even returned to us. We just -- but, you know, there's been no -- no other problems of hospitalization.
Q Turning just briefly to the sign-up process, and the reviewing of risks with potential members, during the process of signing up do you ask members whether they are tobacco users, tobacco smokers?
A No.Q Do you ask women who are seeking membership
whether they are or -- or are planning to be pregnant in the near future?
A No. We would assume that, you know, women that are pregnant or -- or having children would discuss this with -- with their doctor. And I think any woman with, you know, much sense would discuss with their doctor these matters. I don't
think, you know, our insistence, you know, would -- would matter, if they had already decided not to talk to their doctor. So that's something left to them to -- to do.
Q Now, during the course of your evidence in direct, there was some correspondence that was provided and entered as exhibits, starting at about Exhibit 8 and onward, letters that you had sent to various government individuals, and then the response from those individuals. These are letters under the head -- the letterhead of the International Hempology 101 Society, correct?
A Yes, I did.Q And with each of those letters, you've set out the
position of the International Hempology 101 Society and the CBC of C regarding various issues that have arisen in your operation of the CBC of C; is that fair to say?
A Yes. The role of Hempology 101 has been to do the advocacy work of the Cannabis Buyers' Club. You know, I've chosen to run, you know, sort of these parallel tracks, and -- and there are, you know, sort of crossovers. And in this sense, I was acting as -- as president of Hempology -- and advocating for -- for the Buyers' Club, yes.
Q And whilst advocating for the Buyers' Club, the letters set out your understanding of the matters that impact on that Club, as per the letters? You're sending out your understanding of the restrictions, the state of the research, and the risks involving cannabis use for medical purposes; is that fair to say?
A That is fair to say. I do not report to a board of directors when I'm engaged in these things beforehand. I would, you know, show them the letter afterwards, but -- and I would inform the board of my intentions, and I would discuss with the staff of the Buyers' Club I was working with what was going on. But it is something that, you know, I -- I wrote the letters and, yeah, without anyone's assistance.
Q Now, in one of the letters, you refer to -- you make reference to clinical trials, and a lack of clinical trials, presence of -- the phrase "clinical trials" pops up in one of the letters. What is your understanding of a clinical trial? What constitutes a clinical trial, to your
understanding?A A clinical trial would entail researchers with,
you know, degrees in the area that they're studying. You know, it's a very general question, but it would require a body of individuals, I think, you know, with doctorates, at least. I don't know if a person with a master's degree can do clinical research without having others overseeing their work. And so clinical research would entail, you know, people with Ph.Ds to gather -- gather information.
Q I don't want to be unfair, but I'm trying to understand your answer. The structure of a clinical trial, the presence or absence of double blinds, the use of placebos, as well as the test substance, pharmacological testing, laboratory testing, those are areas you do not -- do not have experience in, is that correct?
A Oh, that is -- is correct. I have no experience in that, although I have a great amount of interest in seeing that that is done. But I'm really quite out of my league with the lingo.
Q And on the website of the CBC of C, there is the cannabis -- Cannabis Buyers' Club of Canada Medicinal Cannabis Recipe Book, correct?
A That is correct, Your Worship. We talked about it yesterday, but I don't think it's been entered as an exhibit.
Q And there's an introduction to this particular document written by Gayle Quin and Ted Smith. Gayle Quin is your partner, correct?
A Yes, she is.Q And who is the -- who's the primary author of the
recipes and directions and the like that appear within that Medicinal Cannabis Recipe Book? Is that yourself, or is Gayle the primary recipe creator?
A I believe I -- I said yesterday that I was the primary recipe maker, although it has been a collaborative effort, that Gayle has also been responsible for, you know, some of the -- the newer products. So it is an even broader collaborative effort. You know, almost every person that comes into the bakery, more in the past than recently, you know, the last few years it's been fairly stable, but we will change our products. We're trying to find healthier, and --
products, and closer to home. So, like, you know, they do change. So
certainly in total the, you know, number of people helping would be closer to -- to six or seven that have really helped design the recipes. Gayle and myself wrote the -- the introduction. And I believe the actual format and such that you're seeing was put together by -- by Owen. Him and Gayle worked together. So he typed that in, but I don't know if Owen really helped design many of the -- the recipes in there. I -- I -- yeah, I -- I don't think he -- he did. Like I say, we've collaborated with various people, but I think Owen was just -- you know, helped out and done what he's been asked.
Q And in the recipe book there's recipes for creating, or at least the ingredients required to create, for example, extra-strength oil for use in baking, correct?
A Correct. There's likely five different recipes that would describe the infusion process in the cook book. Because again, as I said yesterday, we make products out of the leaf, the bud, and the stalk. And the extra-strength cookies and the Cannoil are both made with bud, but for -- I think because one is made -- wait, no, that doesn't -- I don't even know why we use different ratios -- or recipes for the extra-strength and -- and Cannoil. We've actually talked about that at work, but that just seems to be -- sometimes we're so busy with things we just do something, and that's -- we don't change it unless we have to. So I -- I believe there would be five different recipes in there. And that would help people manage their dosage levels as well.
Q You haven't been, yourself, working actively in the bakery recently, is that fair to say? You don't run -- you don't do the baking any more, do you?
A I haven't baked a cookie for the members for probably a decade now, although I -- I do find myself cleaning up the kitchen quite a bit --
MR. ECCLES: Could Mr. Smith be shown Exhibit 12, please?
Q Madam Clerk is handing you a letter you authored to Mr. Tony Clements [sic], Minister for Health Canada, dated August 1, 2006, correct?
A That is correct.Q And the second paragraph of that letter, the final
sentence in the -- that paragraph, "This letter was written because in ..." Sorry, I'll back up. This letter ...
A I was referring -- Q No, that's a letter that Victoria Mayor and
Council wrote to Health Canada. That's what you're referring to?
A Yes. It's entered as a separate exhibit, so -- Q And that would be -- A -- I'm referring to -- to that letter, so that's
what I mean. I don't mean to say that this letter itself was written in response -- or, you know --
MR. ECCLES: Could Mr. Smith -- A -- or it was being referred to, yes.MR. ECCLES: Yeah. Just I want to be sure I know what
we're talking about here. Q Exhibit 7, please, which is a March 20th, 2006
letter to the Honourable Tony Clement, Minister's Office, Health Canada, dated March 20, 2006. Just so I'm -- well, perhaps you can hang onto both for the moment.
Is Exhibit 7 the letter that you're referring to in the paragraph I've taken you to of Exhibit 12?
A Yeah. You can see, you know, the first sentence there, I start referring to a copy of this letter, and so that last sentence there is -- is referring to this letter being written because of that -- that meeting that was held by the City. So when you were asking, you know, where this letter came from, and, you know, how the mayor was informed enough to put his signature on this, you know, the members and I, you know, approached City Council, we went to a lot of City Council meetings, and discussed who we were and what we were doing, and the City Council decided that they wanted to have a meeting with Health Canada before they, you know, made any position. And so it was after that meeting with Health Canada that the mayor wrote about how inadequate the program was. So that was based on information from us and Health Canada.
Q Do you happen to know -- I'm not from Victoria, so I don't, but do you happen to know whether Mr. Philippe Lucas was on City Council in 2006?
Q Now --A But as you can see on -- on the letter, he was on
the Downtown Advisory Committee. So he was working in that direction. He'd ran for council for the two times previous.
Q Now, Exhibit 12, the final sentence of the first paragraph reads [as read in]:
This letter was written because in January a representative from Health Canada refused to participate in a public meeting with locally elected officials, and instead held a small superficial meeting with a few City staff, police, and health authorities.
The question I'd like to ask you is, were you at that meeting?
A No. In fact that information came directly from the Mayor and Council, who were not happy with the situation, because after having to request on several occasions -- and I have the documentation if you want to see the repeated letters that the City wrote to the Minister of Health asking for this meeting -- and the Health Canada representative, when -- when they did show up refused to meet with the City councillors directly, refused --
THE COURT: Were you there, or were you told this? A I was told this by Mayor and Council. And -- and
they wouldn't meet with any politician, and would only meet with, you know, City staff and -- and police and health authorities. It was something where, you know, it was a very tightly controlled meeting.
MR. ECCLES:Q Does the CBC of C honour or recognize membership
cards from other compassion clubs within the Province of British Columbia?
A We don't any longer, no. We've come to the conclusion that we want to see everyone's paperwork. For a long time there we did accept memberships from the B.C. Compassion Club and the Vancouver Island Compassion Society, but we've come to question both of those mandates, to the point where we are asking for people to bring in, you know, their doctors' information.
State of California's cards as well, because it's our understanding that in the State of California one simply needs to purchase a card, and the system is so flawed, in our opinion, that we will not respect those cards, and ask the citizens of California to do the same as the citizens of Canada do. But we do accept recommendations and such from the other states from America that have medical marihuana programs.
Q Do you know from your interactions with the members whether a CBC of C membership card is honoured at other compassion clubs? For example, if a member happens to be travelling, and is in Victor -- or in Halifax? Or, sorry, you have -- in Toronto?
A Okay. Well --Q Could a member from the CBC of C present their
membership card to a compassion club in Toronto and have it be honoured; do you know this?
A We are trying to keep up on it. It's a changing situation, and mandates change. But, for example, the VICS here in town I understand will honour our membership card three times. Or is it a month? I can't quite recall. I think that it's three visits, and then you have to get your own membership.
Some clubs, like I believe The Healing Tree in Vancouver gives a month after you show up to come in with your medical information. Other clubs, like in Toronto, the Rainbow Medicinal club will give us a call, and we'll send information to them. Or -- yeah. Or we often, if -- you know, if our members are going there, we'll advise them to -- to -- we just make them a photocopy and say, just show up with that. Because more often when our members are travelling, they'll come and ask us, you know, directly, you know, what it is that they require. And so we have in our newspaper as well in the back a list of clubs across Canada.
But I would have to say that now it's come to the point where most clubs require their own information to be filled out, that it just seems to be the most secure way to -- to operate, given all the -- the risk that is involved. And so aside from some of these temporary memberships, there aren't many established clubs that give sort of full open purchasing power to people that
haven't joined their club. Q You've described the process of the dry -- I'll
call it dry extraction method for removing the glandular, I think they're trichomes, or whatever, the little crystals on the -- the marihuana bud that contain the actually THC, and you've described using a microscreen, and rub it back and forth, and the crystals drop through. Do I have that right? That's one method, anyway?
A Well, it wouldn't be exactly how you described. They have rather intricate machines now. They have these tumbler machines that they will put into freezers, actually. And you put the dried cannabis into the middle of this machine, and it's almost like a washing machine that will take, like, trim and things like this, is what people would often use, like, after they've, you know, kind of cut away from the bud to -- to leave, you know, the -- the part that has, you know, more of the -- the trichomes, and less leaf, because leaf isn't good to smoke, but it still often has a lot of, you know, trichomes on it.
And so, yeah, it goes into this little tumbler in a -- in a freezer, and you pull it out, and there would be a tray underneath that would have a bunch of this, you know, broken off, you know, crystal. So I -- actually I think most of what we have now is sort of made like that. You can have screens that you use to -- to shift as well. But they can be a little more cumbersome.
Q Do you know offhand how much bud or leaf or whatever it takes to generate, for example, enough trichome powder to fill this cup?
A That would greatly vary upon the quality of the cannabis. And it seems -- yeah, so -- so, you know, that's really, you know, impossible to -- to -- for anyone that knows what they're doing to -- to predict without actually having the product first shown, to say, well, how much would you get out of this, or -- you know, because there's such a great variation in -- in crystal content.
But I -- I would say that I'm -- I'm not at all an expert in the production of -- of extracts and resins. Like, you know, so, you know, I -- I may fail you in some of your questions.
solvent extraction method to extract resin has risks associated to it? The process by which hash oil is made, for example, you mention no longer doing business with one supplier because they use a solvent extraction method, and there are significant risks associated to that; is that correct?
A Well, there's a lot of variation in how to make, you know, hash and hash oils with solvents. There are some methods that are -- are very safe, but I don't know how healthy they are without proper ventilation and masks, right? And it's not very common that people go through the effort of having good ventilation and -- and the proper masks around, you know, the production of these things. It could be done. But it's something that can be very dangerous as well.
So, you know, it's -- you know, that would be one of the reasons why having a large facility that could be, you know, regulated to produce these kinds of medicines, instead of leaving people to -- to make it on their own would be much better.
Q Other than your involvement with the CBC of C and your involvement for -- since the age of 18 with recreational use of marihuana, and since then derivative products, do you have any other experience involved in the creation of medicinal substances or properties, outside of the realm of cannabis?
A Some of the herbal medicines that are mixed in with our topical products, you know, when we make the St. John's wort oil, and stuff. But, no, I -- I didn't grow up making medicine. You know, I grew up like everyone else, taking Tylenol for a headache.
Q And one of the pieces of correspondence that is here, the -- there's mention made of -- or what's brought to your attention is a website involving how to make submissions as to regulatory changes and impacts. As I recall your evidence in chief, it was that you looked at the websites, but complying with the requirements was not something -- an option available to the CBC of C; have I got that right?
A I believe in reading the amendments, or the regulatory policies for making amendments, it
seemed beyond the scope and capacity of our group to engage in that process. You know, we don't have the -- the money or resources to hire people that have degrees in -- in pharmacology. And the -- you know, the process just seemed, you know, beyond what we're capable of. We're sort of like a -- you know, an emergency room, in a sense, that's more like a refugee centre. And so it's really -- that was just, like I say, far beyond my -- my abilities.
Q Are you a member of -- are you a member of the CBC of C as a member, or are you a member as the directing mind?
A I'm not a member of the Club. In fact I hope I never am a member of the Club. I don't want to be in chronic pain or have one of these problems. So I have -- as I've said with my back problem and things that occur that cannabis can help with, but I'm a very healthy man.
Q Are you a member of any other compassion club?A Oh, no.MR. ECCLES: Thank you. Those are my questions, My
Lord. THE COURT: Any re-examination? MR. TOUSAW: Yes, My Lord. I won't require Mr. Smith
to have those documents.
RE-EXAMINATION ON VOIR DIRE BY MR. TOUSAW:
Q Yes, Mr. Smith, you'll recall that my friend asked you -- asked you some questions about drug interaction potentials for persons taking central nervous system anti-depressants, or the like, and from your direct testimony I understood that the membership policies of the CBC of C are such that you do not accept for membership persons using cannabis to treat mental health issues. Have I got that right or wrong?
MR. ECCLES: My Lord, I'm, one, not sure how that arises as a matter of re-examination; and, two, I don't believe that was the evidence in chief.
MR. TOUSAW: I'm just trying to ascertain what the evidence in chief was, My Lord, to determine whether or not there's re-examination required on that point.
THE COURT: I thought the evidence in chief was that membership in the Club, if not prohibited to those
having primarily mental health problems, was at least discouraged heavily because of the risks to those suffering mental health problems. But maybe I've got it wrong.
MR. TOUSAW: That was my memory as well. THE COURT: So how does that arise out of the question
about central nervous system drugs?MR. TOUSAW: I took my friend's question to be directed
to be the issue of potential drug interactions, and therefore risks to persons taking those drugs, and I wanted to explore the scope of that risk, given the membership criteria of the Club.
THE COURT: I'm not sure I got that in cross- examination. But go ahead. Let's see what the question is.
MR. TOUSAW: Q You've heard us discuss the membership criteria of
the Club vis-à-vis people with mental health issues. Can you clarify what that policy is?
A Okay. A person with a recommendation from a doctor, if they have mental health problems, could join our club, but it would have to be a recommendation. Our mandate is to help people that have a diagnosis of a permanent physical disability or disease, which is essentially a sort of, for the short form, chronic pain. That is our goal. If they have mental health issues as well, that might come up. That doesn't disqualify them from the Club, although it might cause them to -- to lose their -- their membership, if they're not able to demonstrate, you know, reasonable behaviour in the Club.
Q My friend asked you a series of questions regarding the street population of the downtown Victoria area, and questions of self medication with various substances, that may not assist their long-term treatment, and there was a discussion of Mr. Dure. Are there other -- to your knowledge, are there, and if so, how many have there been actual problems with members of the CBC of C -- other than Mr. Dure, are you aware of other similar problems where members of the CBC of C have made what I think my friend said were bad choices, vis-à-vis self medication?
A I don't believe there's another situation we've had in all these years where a person has become, you know, ill as James Dure seems to have had in
that circumstance. You know, we've had some people that have felt worse from some of the, you know, smoked products, but certainly when it comes to the edible or topical products there's been no, you know, negative results, to my knowledge. You know, rashes or anything like that. Certainly nothing that's -- yeah, not to my knowledge.
Q My friend asked you some questions about the Health Canada stakeholder advisory committee, and I believe your response was that you hadn't been a member of that committee; is that right?
A That is correct.Q Have you met with Health Canada or officials for
Health Canada as part of any consultation process, outside of that stakeholder advisory committee?
MR. ECCLES: My Lord, I'm going to object on the basis that this was an issue canvassed in direct examination of Mr. Smith. The interrelationship between the CBC of C and governmental bodies. It could have been asked in direct, and this goes well beyond the scope of cross. My friend is basically embarking into a new area that doesn't arise from cross, in our respectful submission.
MR. TOUSAW: In my respectful submission, My Lord, the questions that were asked in direct had to do with the exhibits that were entered by Mr. Smith in terms of his letter writing campaign, and back and forth with Health Canada on a particular point. My friend asked a series of questions that were much more broad in scope, regarding the amendment process of the MMAR regulations, the stakeholder advisory committee that at one point existed to advise Health Canada, and -- and Mr. Smith's role, if any, in consultation process with Health Canada. In my respectful submission this arises out of cross-examination.
THE COURT: Any reply, Mr. Eccles? MR. ECCLES: No, My Lord.THE COURT: I think it fairly arises out of the
cross-examination, particularly the line of cross-examination where this witness was cross-examined as to whether or not he has had any involvement with stakeholders committees, stakeholders meetings, whether he had been to such a meeting, and questions similar. So I will permit the question.
Q Do you recall the question?A Yes, I do. Yes, in fact last year Health Canada
announced new amendments were coming, and held -- or had a public consultation process where -- where people could submit input, and then proceeded to have stakeholder meetings. I believe here in Vancouver, and Toronto, and Montreal were the three locations that these stakeholder meetings were held, with representatives from compassion clubs and other representatives within the industry that run websites or other businesses that work directly within the MMAR.
So, yeah, they -- I was invited to -- to that meeting. I think it was September the 7th, in Vancouver. And there was actually so many people interested in attending the Vancouver session that it was broken up into two parts, which -- the morning session and afternoon, and there was probably about 20 people in the room, which made it very difficult to get much input at all, because the time-frame was quite short, and they were trying to ask a very broad range of questions, from what problems we have with the potential amendments to questions about how we operate. So it was very frustrating to -- to get much of a word in.
And we were promised minutes from that meeting, but those minutes have not been made available yet.
Q Without giving us every word that you said in that meeting, was there a general thrust to the commentary that you provided to Health Canada, and if so, what was that?
A I expressed my concern with the new proposed amendments. In particular I expressed concern about, you know, poor and vulnerable people having no opportunity to access the program. Our club is very much built to help people that are in chronic pain, that are, you know, very much, you know, vulnerable to many things. And so I saw their program, you know, amendments as being very dysfunctional and not helpful at all towards those individuals. And I -- I did, you know, talk about some of those factors.
I didn't really get as much of a chance to discuss the proposed amendments and -- and our club's position as -- as I would have liked.
Again, it was a room full of people that were very upset at the program. Everyone in the room was unhappy with the direction Health Canada was going, and it was difficult to get a word in at times.
Q Did you in your comments to Health Canada during that meeting, or at any representations before that meeting, did you canvass the issue of alternative chemist based medicines other than dried bud itself?
A I'm quite certain that I brought it up, again in the context of how difficult it would be for those services to be made available through a mail order program, that providing fresh baked products for people was a very excellent way to deliver this medicine. And I believe that I made comment on the fact that derivatives were excluded still in these new amendments. But I -- we weren't allowed to record the meeting. I asked if we could, and we weren't able to. But I -- I do believe I said that, you know, if they weren't willing to -- to change the amendments through, you know, persuasion, that we would do it in court, because ...
Q During your cross-examination my friend asked questions about the sales, percentage of sales devoted to dried cannabis versus your topical and edibles, and I think you indicated there was about 90 or so percent dry cannabis. Just for my own clarification, that's 90 percent by dollar value, or by --
A Yeah, 90 percent of the -- the money that comes into the store would be to purchase cannabis to smoke. And, yeah, it would probably be between, you know, five and ten percent of sales would be in edible products.
Q So if I have it correctly, if your gram of dried cannabis is $10, and you sell I think the cookies for a dollar each, you sell a gram of cannabis and one cookie, that's about a 90/10 percent split, does that sound -- is that about right?
A Never thought of it like that. Q Maybe I'll ask a better -- okay, I guess what I'm
saying is --A Yeah, yeah. So --Q -- you'd have to sell ten cookies to bring in the
A Exactly, yeah.Q Is that right?A That -- that's correct. So, yeah, it probably is
closer to five percent than ten percent. You know, I know we just -- we go through a fridge full of cookies, and it's several hundred dollars worth. So, yeah.
MR. TOUSAW: Those are my questions, Your Lordship. THE COURT: May this witness be excused?MR. TOUSAW: Yes.THE COURT: All right. Thank you, sir, for your
assistance. You are now excused.A Thank you.
(WITNESS EXCUSED)
MR. TOUSAW: My Lord, I'm noting the time. Perhaps if we take the break early, I can speak to the next witness and --
THE COURT: All right.MR. TOUSAW: -- have her ready.THE COURT: Take the afternoon break. THE CLERK: Order in court. All rise.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)(PROCEEDINGS RECONVENED)
THE CLERK: Order in court. MR. TOUSAW: Yes, My Lord. The accused would like to
call Ms. Gayle Quin to the stand.
GAYLE QUINa witness called for the Accused, affirmed.
THE CLERK: Would you state your full name, please? A Frances Gayle Quin.THE CLERK: And spell your last name.A Q-u-i-n.THE CLERK: And Frances is -- Frances is spelled? A F-r-a-n-c-e-s.THE COURT: You may have a seat, Ms. Quin.A Thank you.
EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:
Q Ms. Quin, you are a member of the Cannabis Buyers'
Club of Canada, is that correct?A That's correct.Q And for how long have you been a member?A Since 2003.Q I'm going to take you through your medical history
in a chronological fashion for His Lordship. I'd just ask that perhaps you -- perhaps I'll ask this. Do you suffer from a number of medical conditions?
A I suffer from quite a number of medical conditions.
Q Can you -- can you take His Lordship through your medical history, commencing really as early as you -- as you wish?
A My mother was very ill when she carried me. She was on a very specialized diet. And I had a twin that was lost in the pregnancy. I had my first operation when I was three months old to remove a growth from my abdomen. Scarred from here to here. And throughout my childhood I had --
THE CLERK: My Lord, I'm sorry for interrupting, but the witness isn't being recorded. She has to speak up a little bit. It isn't coming through very well.
THE COURT: Which microphone is it that is recording? THE CLERK: They're -- I'll just maybe move this a
little closer.A I'll try to speak up.THE CLERK: Thank you. It's just that we have to
record you. Thank you. MR. TOUSAW: Q Now, Ms. Quin, just for purposes of the record,
you were indicating that your medical issues began as early as three months of age --
A That's correct.Q -- when you had a surgery to remove a growth on
your abdomen?A That's correct.Q And what's the next event?A The next events that I can remember, I had
chickenpox twice when I was young. I had all three kinds of measles. I had lung infections quite often, and colds. And I didn't really think it was abnormal until I got into school later, and my friends started saying things like, "Oh, she's sick all the time." And I thought everybody was -- I just didn't realize that I was sicker
than everybody else. And so by the -- when I was 13 my major
health issues started so show up. My first menstrual period I haemorrhaged for three days before I got under control. And that's when my sister first introduced me to cannabis. I found -- I found if you -- after having a few puffs of cannabis I could -- it would relieve the cramps enough that I could stop crying, at least, and get out of bed. I usually would be off of school from five to seven days through the beginning of my menstrual periods, because they were so severe.
Q And this is at age 13, then, you commence using cannabis to essentially self medicate for that --
A That's correct.Q -- issue? And you found it to be effective, did
you?A It stopped -- it relieved the cramps to the point
where I could stand up straight. It didn't stop all of the pain, but it made it so I could walk and eat and function, and sleep at night.
Q And where at age 13 were you acquiring the cannabis?
A My sister gave it to me.Q Was she an older sister?A An older sister.Q Did you have any other significant health issues
in your teen years?A Yeah. I -- my menstrual periods kept being very
severe and irregular. By the time I was -- I got pregnant -- I was married when I was 17, and I was pregnant when I was 18, had my first son, and I was 20 when I had my second son. And by then the doctors knew that we should be having regular pap smears, and my pap smears started coming up irregular. By the time I was 23 I had a stage 4 pap smear, so they did a cone biopsy on me. And --
Q Let me stop you there and just ask you, what is a cone biopsy, in your understanding?
A They remove the -- it's called a cone. It's the very beginning of your uterus, and it was pre-cancerous.
Q And what happened as a result of that cone biopsy?A My pap smears started to come back to normal, but
my abdomen. They just called it pelvic inflammatory disease. I was constantly on antibiotics, ever increasing in strength that were ineffective. I kept getting sick, sicker from it, and by the time I was 24 I asked my doctor if I could have a hysterectomy, because I had no quality of life. I -- I couldn't look after my children properly for usually two weeks out of every month. I was just having constant infections. And if I didn't have an infection, I was in constant agony from the menstrual period.
So he finally agreed to send me to a specialist, and a specialist looked at me and agreed to do a hysterectomy for me when I was 24, and at that time the doctor took out my healthy appendix, and just stitched my uterus up. He thought it was prolapsed, and he wanted to try and see if that would help. I suffered for another year after that with the same symptoms, until I asked my doctor to please, could I have another operation and have a hysterectomy. I used cannabis throughout that time, for pain relief, mostly, and to stop cramps.
Q In this period of time from your first pregnancy through hysterectomy at age 25, where are you living?
A In Victoria, B.C.Q And who are you residing with?A My husband at the time, Trevor Quin. I was
married at the time.Q And the two children?A Yeah.Q And you mentioned earlier that you first started
consuming cannabis medically at age 13. Are you -- are you using cannabis throughout that entire span, from 13 to 25?
A Yes, I did. I had constant health problems, and I couldn't manage without it.
Q And is your -- are you also attending with a physician during that span of time?
A Yes. I had constant attention from physicians. My physician at that time was Kelly Chu.
Q And did you make your physician aware of your use of cannabis?
A Always.Q Was any concern of that raised with you?A Never. They told me every time I brought it up
with a doctor, I -- it's like the fourth question you get asked, if you smoke. And I quit smoking tobacco when I was 20, 19, in between my two children. And so I told him I didn't smoke tobacco, but I smoked cannabis. And then they'd ask me if it helped, and I said it's -- it helps relieve my pain immensely, and that it helps me to sleep, because my cramps were so bad I couldn't sleep either. And they said to carry on. If it helps, to carry on, that I had no -- nothing to concern myself about with its use.
Q And so at age 25 you undergo a second operation, and this time you have a successful hysterectomy?
A Yes, that's right.Q Does that assist in the symptoms that you were
experiencing?A Yeah. It stopped the -- yeah, I -- almo -- within
a month from healing from the surgery, I had no more cramps. I had no more pain from having a period any more every -- I had one ovary left, so every other month one of my breasts would swell up and get sore, and that was the only symptoms that I had from that.
So I got -- I actually started to feel healthy enough that I went to school to get a job.
Q And what did you go to school for?A I went to -- I went to Camosun College to become a
certified long-term care aide.Q Did you successfully complete that program of
study?A Yes, I did, Your Honour, and I worked as a
long-term care aide for two years in Victoria, and for six years on Salt Spring Island.
Q So at age 25, you're -- you're in Victoria, and you begin work -- you begin this course of study at Camosun College at age 25?
A I was -- yeah.Q And how old --A Yeah, because my sons were -- I went back to
school when my youngest son started school full time.
Q And how old are you today?A I'm 54.Q So this would have been approximately 29 years
A Yeah, that's correct. Maybe 1983.Q Do you develop, at any point subsequent to that,
any further health complications?A No. I felt -- we had to have a massive battery of
inoculations to work in the hospitals, and three months after that I started to get quite ill. I had a lot of troubles with my skin. I started getting allergic react -- rashes and reactions at work. It was probably from the laundry soap, and it was -- and possibly from residents' urine. Not actually sure. A lot of soap gave -- caused me a lot of allergic reactions.
And I also develop -- started developing chronic ear infections. I was on -- started get -- was put on antibiotics again, and the pain kept getting greater and greater, and I was put on morphine for two years for that.
Q For the ear infections?A For the ear infections.Q What period of time would this have been?A That was while I was trying to work, so that was
1984 to 1986, just before I left for Salt Spring.Q And are there any complications arising from the
prescription pharmaceuticals?A I couldn't work. I couldn't function at work. I
was -- I felt totally inadequate to be able to function in a case of an emergency. I was -- myself and my partner were responsible for 75 people at work. And the morphine made me feel very foggy, and it masked the pain, but I could still feel it. My head was always banging. I lost a lot of work through that time.
Q And are you continuing to use cannabis in this period of time?
A Yes, I did.Q And is that assisting you in any way with your
pain?A The -- I was only smoking it and eating it now and
then at that time. It instantly helps with pain, and you can be very careful about how much I use, so I didn't -- so if I had to go to work, I could use just enough to kill the pain and not get feeling fogged out and -- and unresponsive enough to be able to perform my job.
Q Let me back up and say from the period of time that you described from age 13 to the hysterectomy at age 25, what's your -- how are you ingesting
cannabis? Are you smoking it, eating it? How are you getting it into your system?
A Mostly smoking it, but on occasion I would eat it, when I got to grow my own. We used to get Mexican cannabis with seeds in it, and I was brought up as a gardener, so I just started growing them.
Q And when would this have been, approximately?A 1974.Q Is when you first began to produce cannabis?A No, no. The first plants I grew was when I was
13. I had a -- the first seeds that I ever found I planted right away. And my mother found them, and she threw them out, and we got in an argument about -- about it. And I thought I should be allowed to grow them, because I was taught God gave us all the seeds and plants to use for medicine. We went to church quite regularly. And I thought I should be able to use it. It worked for me. It was another one of the plants that was around me. And I was quite upset when she threw them out. She said they're -- "You can't grow them in my house." Well, it's illegal. So I scooped them up and I took them up the hill and planted them outside.
Q And so you mentioned in 1986 or so you moved from Victoria to Salt Spring Island?
A That's correct.Q And is it with your husband and children at that
time?A Well, it was -- it -- it was -- I tried to move by
myself, but my husband ended up coming with me. We were having quite a bit of difficulty by that time. He was becoming a violent alcoholic.
Q So you get to Salt Spring Island in mid 1986/'87. A That's correct.Q Are you still suffering from the ear infections?A Yes, I was. Soon after moving, I was on an
acreage with lots of plants, I'd always been interested in herbs, and I started making an oil out of various herbs to use in my ears. And it was -- I found it was extremely more effective than -- than the antibiotic ear drops that I was given. It reduced the swelling within three days instead of six days, and it killed the pain within a couple of hours of me using it, and then I started getting less recurrent ear infections the more I used it.
Q And you say various herbs. Do you -- did that include cannabis, or was it --
A Not at that time.Q Do you recall what the herbs were?A It was -- I had mullein leaves and flowers, and I
think it had St. John's wort oil in it, and -- and yarrow.
Q And did you make that oil yourself?A Yes, I did, in olive oil.Q How did you know how to do that?A I read it in herbal books.Q Do you have any formal training in that area?A No, I don't. I just used myself as a guinea pig,
and when it worked I kept using it.Q In -- so this is 1986, you're making the oil for
your ear infections. How is the other aspects of your health at this time?
A It wasn't -- wasn't well. I kept -- I was starting to get sick a lot again. I was getting lung infections. It was -- it was better. I had -- it was better than when I'd left Victoria. Before we left Victoria I was having symptoms of environmental illness, although I didn't know what it was at the time. And I sort of develop illnesses before anybody knows what they are yet, and I have to wait for science to figure out what's the matter, and then I go, oh. It's like --
Q What kind of symptoms are you describing, when you say symptoms of environmental illness?
A My -- I would get asthma-like symptoms in too much pollution. Some of my favourite foods, when I was in the room with them, trying to -- trying to cook would make me want to actually physically vomit. I couldn't be in the kitchen when foods were being cooked. It was very -- it was a very peculiar reaction, I thought, and it's very specific to environmental illness, I've since found out. I get tired a lot, and ...
Q And you're on Salt Spring Island. Are you still growing cannabis when you're on Salt Spring Island?
A Yes.Q And are you continuing to use it medically?A Yes.Q And is it at that time providing you with any
A It let me sleep, which made -- which let me get up in -- the next day to be able to go to work. I've always had trou -- I had -- I'm not exactly sure what order some of my illnesses have come in. They've come in batches, sort of. I've been -- I have mercury poisoning, so a lot of my symptoms have stemmed from that throughout my life. So I also developed chronic fatigue syndrome and fibromyalgia.
And those things sort of came a little bit before I got really sick and developed hepatitis C, while I was working in the hospitals, and that was in 1999. I had to quit -- I spent ten days in isolation over the holidays. The doctors didn't know what was the matter with me. They had no way -- none of the tests could tell what it was. It was eight months after I got out of the hospital that they finally sent my blood work to the United States, and it came back as positive for hepatitis C.
Q Now, we've sort of skipped a span of time there from 1986 to 1999.
A Sorry.Q In 1986 you're living on Salt Spring Island,
you're suffering from the various things that you've described to His Lordship, and then you're --
A Mostly skin problems and fatigue at that time, when I moved to Salt Spring.
Q And how long are you on Salt Spring Island?A I lived there for 15 years, and I moved there in
1986.Q So from about 1986 to 2001?A Yeah.Q And you described being diagnosed with hepatitis C
in 1999. This would have been just before leaving Salt Spring Island?
A 1989.Q 1989, I'm sorry.A Sorry.Q Perhaps I misheard you. A Sorry. 1989.Q So 1989 -- A Twenty years.Q -- you're working in a hospital on Salt Spring
Q And you at that time contract hepatitis C? A That's correct.Q And this is the incident that you described
spending time in isolation and having to be diagnosed by way of --
A Yeah.Q -- blood work sent to the United States?A That's right.Q Yes?A That's correct.Q And what -- what symptoms are you experiencing as
a result of the hepatitis C? A I had severe nausea and vomitting for three days
straight. And after I got -- I don't know what kind of drugs they put me on in the hospital, but it was seven days before I could eat anything, and it was another week after that before they let me out on a day pass. And when I could finally hold solid food down, they finally let me go home. And at that time I had excruciating pain. My liver felt like a baseball trying -- or a football trying to explode from under my ribs. It was very swollen up.
I couldn't -- I had a great deal of trouble eating. I was nauseous all the time. I didn't want to eat. Smelling food -- again, smelling food, cooking, made me lose my appetite. My husband wasn't around all the time, so if I had to -- if I had to cook for myself I'd be too tired to be able to eat, so I'd just put it in the fridge and know I could eat tomorrow because I wouldn't have to cook.
And I was on my own property at that time and was starting to grow a lot -- all of my own cannabis, because it was my own property; I wasn't renting. And I remember the cook book that I got long time ago and -- and how well eating pot had made me feel through my cramps, so I thought I'd try eating cannabis again. And it really took the pain out of my liver, and it started to take the inflammation out of my liver, so I started eating it very regularly. It was the only thing that helped the pain in my liver and the only way I could sleep at night.
Q And you're making recipes out of this cook book that you described?
Q And are you treating with a physician at that time on Salt Spring Island?
A Yes. Dr. Roland Graham was looking after me at that time. He was very helpful. He was very helpful in a number of ways. When he finally -- when the -- when I was finally diagnosed with hepatitis C I asked him what to expect, and I was the first -- I think I was the first person in B.C., I think, to be diagnosed with it. And he quite honestly told me to expect to be dead in five years. I said, well, what did you -- "What do you mean by that?" And he said to expect to get cirrhosis of the liver within two or three years, and to be dead within two or three years after that.
My sons were -- I think they were about 11 and 13, or 13 and 15, somewhere around there, and I was about 33. I was -- felt I was far too young, and I told him that that was unacceptable, and I was going to go home and see what I could do about it.
So when I went home I started reading some more, decided what I was going to take, and went back to see him, and let him know. I had a list of herbs that I was going to do, start taking, and a vitamin C flush that I was going to start to do, and let him know that I was eating cannabis every single day, and if there was any reason why I shouldn't do any of these things. And he checked over my list, and wrote everything in my chart that I was going to do, and said, go right -- go ahead.
And we carried on like that for two years. I let him know every time I came to visit what I was doing and how -- I ate milk thistle quite regularly, and I made tea every day out of dandelions, roots and leaves, and I ate -- and I ate my cannabis every day.
And two years later after that in one of my visits he said he thought I was getting better. And I told him I was afraid to think that myself, because I didn't -- I thought I might be, but I was afraid to think that I was getting as better as I thought I was.
Q Did you feel better?A I felt a lot better -- better. My -- the swelling
sleep, and I was eating more regularly. I started -- I was starting to exercise again. It took about six months before I could walk, before I could actually get off of the couch and go upstairs to get clean clothes. That's how sick I was. I lived -- lived in the living room for the first six months, in my pajamas.
Q And so this is the time-frame from approximately 1989 to 1991, 1992, does that --
A Yeah.Q -- sound about right?A That's correct, yeah.Q I understand that hepatitis C is a lifelong
condition. You still suffer from it, is that correct?
A No. Q You don't have any further symptoms?A No. No, I was -- I had myself tested in two
thousand and -- oh. About seven years ago. About seven years ago by an infectious specialist here in town. I can't recall his name off the top of my head right now. And all of my results came back positive. Or, I mean, clear. I had --
Q Came back negative, but -- A Negative, but --Q -- that was positive news for you?A -- it was positive for me, yeah. I had no signs
of the hepatitis C any more.Q I take it you have to date not developed cirrhosis
of the liver?A No. But I had a CT scan in the summer to deal
with my -- I had breast cancer this summer, and I -- they found some cysts in my liver. So I have to get back to work harder on it.
Q In nineteen ninety -- I'll ask you this. When you're engaged in this regimen of homeopathic natural health products, call it, you're advising your doctor of what you're taking?
A That's correct.Q And that includes that you're consuming cannabis
regularly?A That's correct.Q And did he at any point -- are you also taking
pharmaceutical remedies?A No. In fact on one of the visits that I went to
see him, I was quite excited, because there was new news of a treatment for hepatitis C, and I
wanted to ask him about it, and when I did, he said it's not an option for me. He wouldn't even consider it, because I was so chemically sensitive from my environmental illness.
Q And in that period of time were you taking pharmaceutical medicines for any of your other conditions?
A Not -- not at all. I was so chemically sensitive by that point that I couldn't even take a quarter of an Aspirin without it ripping my -- my intestines to shreds. I can't use normal toilet paper. I'm allergic to bleach. I have to -- I'm extremely chemically sensitive still.
Q You mentioned also suffering from chronic fatigue syndrome. Do you recall when you were -- or if you were diagnosed with that condition by a physician?
A I have -- I have it confirmed by a physician that I have chronic fatigue, but I'm not exactly -- I can't really remember when I was diagnosed with it. It was -- like I say, there was a lot of things in -- it was before the hepatitis C.
Q Prior to 1989?A Yeah.Q You also mentioned fibromyalgia. A Yeah.Q What is that, in your understanding?A It's -- it's very -- fibromyalgia is very
difficult. It's difficult to live with and it's difficult to explain. I can't -- I can't wear tight clothes, because it makes my muscles hurt. I can't wear a bra, because it makes my chest hurt, just the pressure of a little bit of elastic. It makes your joints ache constantly. It's -- it's -- it's not nice to live with at all.
THE COURT: Sorry, what was that? A It's not nice to live with at all.MR. TOUSAW: Q And have you been formally diagnosed with
fibromyalgia?A Yes.Q And do you recall when that was?A Same time as the chronic fatigue.Q So prior to 1989?A Yeah, that's correct.Q And I take it you still suffer from those symptoms
A Yes.Q You mentioned earlier being diagnosed with mercury
poisoning; do you recall when that occurred?A 1998.Q And what are -- what are the -- what does mercury
poisoning cause?A It causes neurological pain. It causes you to
feel like you're eating tinfoil all the time. It started interfering with my memory. I couldn't read. All I had in my life at that time was studying. I studied herbs all I could, and got to the point where I couldn't read. I would -- I would be reading a page, and by the time I got to the end of the paragraph I couldn't remember what the beginning of the paragraph said. So I knew I was in real trouble.
And a friend of mine told me she'd met this wonderful doctor in Victoria who could do testing for mercury poisoning. And I had suspected it because of one of the books that I -- Prescription for Natural Healing that I had been reading, I looked up mercury poisoning in -- in it, and it had a huge list of symptoms, and I had every symptom except for one. I looked at my gums, and they said to look for grey blotches on your gums, and my gums were solid grey. I had two little tiny pink blotches on them from the merc -- from mercury leaching into my system.
So I came to see -- got an appointment with Dr. Nunn in Victoria, and I travelled back and forth from Salt Spring to see him. I was on -- by that time I was on a long-term disability from the B.C. government, and I had a very difficult time with it, because health-care wouldn't recognize mercury poisoning. They said it was a dental problem. And then of course there's no coverage for such things, for people on disabilities, when it concerns dental problems. So I had to pay for the treatments all myself. It was quite -- quite difficult to do. The doctor would actually give me -- he would save the -- the drug that was administered to me from other people if they cancelled their appointments, and so -- and he would give it to me so he wouldn't have to charge me for that. He would just charge me for his time for the treatment. He was very helpful that way.
Q And was that treatment for the mercury poisoning
successful?A It's been very successful. I've got reports from
over the years. It's taken quite a number of years to get rid of it. My treatment started out every two weeks, and over a period of five years it got down to I was going once a year.
Q And you continue to treat for mercury poisoning?A I stopped for a few years from I think about
two -- I had to stop from about 2004 until just last year, because my naturopath retired and I couldn't find another one to do the treatments for me.
Q And this is a naturopathic treatment that you're undertaking --
A Yes it is. Q -- for the mercury poisoning? A Yeah. It's a chelation treatment.Q Now, you mentioned a diagnosis of cancer. Tell
His Lordship about that. When were you first diagnosed; when did you first suspect that you might have cancer?
A Well, I first noticed a lump in my breast about eight years ago, and try and have -- I've been trying to get a doctor to help me with it ever since I had to leave Salt Spring in 2000 or 2001. My husband became un -- extremely violent, and I feared for my life, so I left home. And --
Q And where did you go?A Pardon? Q Where did you go?A Me? Q Yeah. A I came to Victoria here, and I stayed with
friends. And I went up north and stayed with my family. And I came back here, and I was basically homeless for a year. And then I went and stayed with my mom and dad while -- I looked after my dad while he died of cancer. They put me up for a year while I helped with him.
Q And this -- this occurs prior to your own diagnosis, is that right?
A Yeah, yeah.Q What period of time are you living with your
father?A I lived with them for a year.Q And around 2001, 2000, 2001?A Yeah, 2000 -- or 2002.
Q And you're in Victoria --A 2002.Q -- 2001, 2002?A That's correct.Q And at that time you're homeless?A That's correct.Q But you own this property on Salt Spring Island?A That's correct. I -- the Ministry of Human
Resources cut me off of my disability to -- they wanted me to go home, because I own the property. And I told them I wouldn't go home because my husband was still there. I couldn't keep him out of my house. I had no lock on it. And he re -- and he wouldn't get a divorce. We ended up having to get a court order to get a divorce.
Q And so in --A And that settle -- and that divided the property,
and I got a settlement.MR. TOUSAW: My Lord, I -- I note the time.THE COURT: Yes. Ten o'clock tomorrow morning. MR. TOUSAW: Thank you, My Lord. THE CLERK: Order in court.A Thank you, My Lord.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED TO JANUARY 20, 2012, AT 10 A.M.)
THE CLERK: In the Supreme Court of British Columbia, this Friday, the 20th day of January, 2012. Calling the matter of Her Majesty the Queen against Owen Edward Smith, My Lord.
MR. ECCLES: My Lord, I wanted to have a brief word with the court before the witness resumes the stand on two matters that have arisen.
One I did not address yesterday during the witness's evidence, but I have advised my friend, the Crown is not objecting to witnesses giving hearsay evidence on the stand in order to provide a narrative to the court. That failure to object does not mean the Crown is conceding such hearsay evidence is admissible.
The Crown will be objecting if witnesses, the patient witness, as my friend refers to them, start to give evidence as to, my doctor told me this, or my doctor told me that. The witnesses can say, I have fibromyalgia, I have had cancer. I don't anticipate that being contentious. But when they start advising the court of information received from medical professionals without providing anything from those medical professionals, and when they start giving classic pure hearsay evidence in order to provide a narrative, rather than object to every single question, the Crown simply maintains, for lack of a better word, a blanket objection to inadmissible evidence inappropriately tendered through witnesses who are not in a position to give that evidence in any recog -- legally recognizable manner, such as medical opinions from lay people, or, my doctor told me.
This is a problem that arises fairly frequently in cases of this sort. It's arisen in the Beren case. It arose in Mernagh, in Ontario. I was casting about on the desk just before Your Lordship came in to try to find the ruling in Mernagh dealing with this, and I can't seem to put my hand on it, but I should be able to find it, and I'll copy my friend if he doesn't have that particular ruling. It may be that this is something we'll have to address before Your Lordship anew at another point.
The other matter is the Crown's reply to my friend's evidence by way of expert evidence. I have spoken with my clients in Ottawa this morning. They are assembling affidavit materials, because apparently that's how Ontario does things, rather than a report, they file a report as an affidavit. In any event, they are assembling a response to Dr. Pate's report.
I'm hoping to have drafts of that later today, but given it's now one o'clock in the afternoon in Ottawa, I'm not terribly optimistic in respect to that particular draft.
I'm receiving a second affidavit that deals with the history of the MMAR and the numbers of individuals who have accessed the program from start to current date. That's, according to my note, almost done. I should have that draft later today. I don't know whether it's contentious, because I haven't seen it, and I don't know whether my friend is pursuing an argument that the program is unduly restrictive for applicants, and that the position as gatekeeper, so to speak, is a breach of Charter. That particular affidavit is more or less designed to address those issues. Once I see it, I'll know.
And finally, we are obtaining an affidavit from an individual who can assist the court with an explanation of how therapeutic products are regulated and licensed for lawful distribution under the Food and Drugs Act. That will be an outline of how such products are taken to market and the steps and the processes involved in ensuring unsafe products, or as best we can ensure unsafe products do not reach the market, or if products have no risks, the public is made fully aware of those risks and there are avenues available so the public can make an informed choice.
That affidavit material, I'm hoping to have the draft of that this afternoon. It's a little less problematic than the expert response to Dr. Pate. We -- I'm advised by Ottawa that there are two difficulties in arranging an expert. One, finding one with the necessary expertise, and, second, more crucial in this case, ensuring that individual is available to, in essence, down tools, get on a plane, fly here, and be on the
stand within the next two weeks. THE COURT: There are occasionally video witnesses that
might obviate, or at least eliminate the outrageous experience of having to go through airport security from time to time. But --
MR. ECCLES: Unfortunately, My Lord, as my friend may or may not recall, we, in the Beren matter, anticipated using a video -- a video link to take the evidence of Dr. Harold Kalant. He was anticipated to be testifying for three days, and maybe a bit longer. I believe he was in the stand for three days. The cost of the video link to have Dr. Kalant testify for three days was just over $5,000. The cost of flying Dr. Kalant out here, having him stay in a hotel, and providing him with all food, meals, per diem, was I believe just over $2,000. So we flew Dr. Kalant out.
Unfortunately, for reasons I cannot comprehend, video link-ups through -- into Ontario are prohibitively expensive. If there is a possibility of arranging a video for the expert witness the Crown is anticipating, we'll certainly endeavour to do so. But I expect that from an economic standpoint, it makes better sense to have the witness attend. It's not very comfortable for the witness, but it also may assist Your Lordship to have a witness here live without having to worry about the video link crashing at a point. That's the Crown's principal worry.
THE COURT: All right.MR. ECCLES: I don't know what sort of time my friend
needs to assess and weigh his response to these materials, and I'm in my friend's hands on that. We have four weeks set for this matter. Given my friend's outline of the anticipated case for the defence, I think we're on track to complete the defence case, with any luck at all, next week. And it may well be -- I have yet to ascertain the full availability of the experts the Crown's anticipating calling. I don't believe they're available next week.
So it may well be that we'll complete the defence case next week. I can provide my friends -- my friend with the materials as soon as I have them, and it might be that we'll have to adjourn for a couple of days, or possibly even a full week, to allow my friend the opportunity to
assess the information, and for the Crown to ensure these witnesses are indeed available to travel to Victoria. Those that can be video -- give their evidence by video link, we'll -- we'll endeavour to do so.
That's the difficulty I wanted to advise the court of. I do anticipate that the Crown will be seeking to adjourn at least one week of this matter to the final week to complete and reply to my friend's case. I'm hoping it won't be any longer than that, because if it goes beyond the four weeks we have set in this matter, the Crown has serious difficulties with finding available time. I'm basically booked solid in these courts until -- the last time I looked at my calendar, I think I have three weeks off between now and August, when I'm not in a trial court.
So that's a matter as well that may be of concern to the Crown, if we simply cannot arrange for Crown counsel to complete the case on a timely basis, then my friend may or may not have a delay remedy he will wish to address the court on, and the Crown may or may not have a position regarding that delay.
THE COURT: All right.MR. ECCLES: I just wanted to be ensure -- assure Your
Lordship and my friend are aware of these difficulties.
THE COURT: I will ask both counsel to stay in touch with trial scheduling on the second floor, particularly with respect to the possibility that this trial may have to go down for a day or a week, or however long, because the resources can be swiftly reallocated if we have some warning of a day or two. Not that I am mad keen on being sent to Prince George for a week while you two have something else to do, but that possibility has to be borne in mind.
MR. ECCLES: Certainly, My Lord. If it's of any assistance to Your Lordship or trial scheduling, if we're not calling evidence before Your Lordship, I do anticipate that my friend and I will be providing books of authorities. I have provided my friend with a Crown book of authorities. It's two volumes. It's most of the leading cases in the area. Seventeen, in the Crown's authorities. I have -- will likely have
one or two additional updated cases to hand up or to include in a supplemental volume.
If my friend has additional cases and wishes to save his client the expense of making the necessary copies, if he provides me with the cites, I can prepare a joint book of authorities containing any additional -- or the current additional cases the Crown anticipates relying on, as well as my friend's. We filed joint books of authorities in the Beren case, and it seemed to be --
THE COURT: All right. Well -- MR. ECCLES: -- a far more efficient way to do things.THE COURT: Simply having one volume with everything in
it is more convenient to everybody than juggling two.
MR. ECCLES: Yes, My Lord. Unfortunately the 17 cases don't fit into one volume, so --
THE COURT: Oh, well. MR. ECCLES: -- we're stuck with three.THE COURT: Two's better than three. MR. ECCLES: I can probably fit whatever -- I don't
know how many additional my friend has, but I can split the spine on Volume 2 and put a new index in, and hopefully we can include everything in a common book. I think I have most of my friend's cites, but I don't know whether he's still arguing everything that's in his pretrial summary.
But we --THE COURT: Well, as soon as you can assemble that, if
it's if a joint book, and give me a copy, the sooner I can start reading.
MR. ECCLES: Certainly, My Lord. I should be able to, once I have my confirmation from my friend what he wants in a joint book, I can probably get that assembled next week.
THE COURT: All right. MR. TOUSAW: My Lord, if I can briefly be heard? THE COURT: Yes.MR. TOUSAW: I thank my friend for the update on
timing. Certainly if he's able to provide even draft reports by early next week, or middle of next week, I don't anticipate requiring any additional time to review those materials, so I would -- I would not in that circumstance be seeking any adjournment in order to review the Crown's materials.
I do have some concern with the Crown's comments vis-à-vis adjournment. This matter's been pending for quite some time, and I appreciate my friend's client's potential difficulties, but certainly if there's an adjournment application, I'll make whatever response I'm instructed to make at that time, but I just say that there are some concerns that arise.
With respect to my friend's lack of clarity on the issue of whether or not Mr. Smith will be challenging the access portions of the MMAR regime -- and by access, My Lord, I refer to the ability of qualified persons to obtain licences to possess and/or produce marihuana from Health Canada -- it is an issue that was raised in my Constitutional Questions Act notice filed quite some time ago, and again in the pretrial summary, and I've confirmed to my friend, I believe yesterday, before -- or perhaps it was the day before, at the end of the proceedings, that that was a live issue in this case.
THE COURT: I think he was aiming more at whether or not you're taking exception to the requirement of physician approval or involvement in that process, not necessarily whether or not everybody who applies can get a permit or a licence, or whatever it is Health Canada hands out by return mail.
MR. TOUSAW: I certainly will be arguing that because of what the court in Mernagh called an effective boycott by physicians of this program, that access to the legal protections are practically illusory, along the lines of the Morgentaler decision, Supreme Court of Canada, and that therefore s. 7 of the Charter is engaged. I do not expect it to be the primary focus of my arguments, but it is, for my friend's benefit, a live issue in the case, as far as I can see.
THE COURT: So do I expect to hear some evidence that would form a basis for an argument of effective boycott?
MR. TOUSAW: I expect that some of the patient witnesses that will be testifying will describe the difficulties that they individually have had with obtaining authorizations from physicians despite the fact that they all both qualify under the terms of the MMAR and find substantial symptomatic or condition relief from cannabis.
THE COURT: All right.MR. TOUSAW: My friend yesterday -- well, let me
actually speak to my friend's concern and suggestion of what he described as a blanket objection. I have on behalf of Mr. Smith some concerns about that, because it puts the accused in a position that at the time the evidence is going in, and even after the witness has left the box, it is unclear what if any evidence the Crown will be objecting to. And I certainly don't want to be in the position that when we come to argument, my friend is saying, well, that evidence, that evidence, and that evidence is inadmissible, Your Lordship shouldn't consider it, and not have the ability to either ask a better question or put the evidence in in a different format. My own preference is if my friend hears testimony that he believes to be hearsay, that he object, and that we deal with it at the time.
And I'm prepared to brief the issue, if necessary, of whether or not a lay witness is entitled to give evidence about his or her own medical condition, and have that accepted by the court. I hear my friend saying that he doesn't believe it to be contentious. For example, for Ms. Quin, she's testified that she has a number of medical conditions. I have some limited medical records that she's been able to assemble, certainly not her full medical records, for a number of logistical reasons, not least of which is that they stretch over the span of several decades, but if it's not contentious that she has cancer when she says she has cancer, then I won't take the court through the exercise of putting in the results of the mastectomy, for example. If it is contentious, I'd like to hear that from my friend so that we can do those things with both this witness and any other witnesses we call.
THE COURT: Presumably what admissions are all about, it does seem to me, Mr. Tousaw, that your friend has a point, at least to a point, and that is that a witness who says, I have cancer, may be heard to say, I have cancer, or, I have been treated for cancer, maybe more appropriately, and there's no exception, I would think, no real objection that could be mounted to that bald statement. Whether it's sufficient evidence to prove a medical
diagnosis is a completely different matter. But a witness who says, my doctor tell --
told me I had cancer, that's not admissible as proof of a medical diagnosis, and I think that's your friend's point. Rather than interrupting the witness, particularly witnesses who are going to be telling me what medical conditions they've been treated for over the years, and how presumably cannabis products assist, having that flow of evidence constantly interrupted in order to point out the obvious, which is witnesses can't be heard to talk about what their doctors have told them to prove the medical diagnosis -- that doesn't mean they can't tell me what their doctors told them.
MR. TOUSAW: Yes.THE COURT: It just deals with what I can make of it -- MR. TOUSAW: Yes.THE COURT: -- later.MR. TOUSAW: Yes.THE COURT: And I think that's what Mr. Eccles is
saying; we don't want to stop the witness from saying, my doctor told me I had cancer.
MR. TOUSAW: Yes.THE COURT: But I frankly will be filtering that in the
way I've described, and that is that's not a medical diagnosis, it's not proof of the doctor's opinion, but it's a fact that this witness has been operating on, whether or not it's correct.
MR. TOUSAW: Yes. Thank you, My Lord. The final issue that arises comes from some
comments my friend made yesterday about the potentiality of seeking to introduce affidavits and transcripts from a prior or prior pieces of litigation, namely the Beren and Swallow case and the Mernagh case. And I take it from his comments this morning that he is assembling new affidavit material, at least I expect to have that in draft form today, that he will no longer be seeking to introduce those old affidavits and transcripts. But I'm not sure about that, and it seems to me that if that material is going to come in, or there's going to be an argument that it should come in, better to know that now, so that we can deal with it perhaps middle of next week.
THE COURT: Presumably the two of you are talking at the coffee shop down in the lobby from time to time, and can sort those things out.
MR. TOUSAW: We are talking from time to time, but occasionally I find it's important to place things before Your Lordship as well.
MR. ECCLES: I can provide some assistance to my friend, My Lord. The only material from previous proceedings that the Crown would anticipate seeking to place before Your Lordship would be the affidavit of Dr. Kalant in the Beren and Swallow case, and, having discussed this with my friend, potentially the transcripts of Dr. Kalant's evidence in chief and cross-examination in relation to the report. I do not anticipate my friend being amenable to the Crown simply filing the report without the additional evidence that relates to the report. It would be up to my friend and I to assist the court by suggesting areas in those transcripts that are relevant to the issues before Your Lordship. That's a matter for my friend and I to sort out.
I can also advise my friend that I am advised by my client in Ottawa that the individual who is currently putting together the materials in answer to Dr. Pate, I have asked that individual to review Dr. Kalant's affidavit filed in Beren and Swallow, and append it as an exhibit to their report, and in their -- their report, advise whether there's anything -- you know, what if anything in Dr. Kalant's report they don't agree with, and what they do agree with.
I don't know what my friend's position on that will be, but it would be -- it's not a back door attempt to slide a report in, or anything of that sort. It's one expert who's going to have materials from another expert, who's going to be able to say, I've read those materials, I agree with all of them, or, I agree with these portions, I can't comment on these. If that is indeed what happens, then I anticipate my friend will be asking the Crown to tender the direct and cross-examination of Dr. Kalant to put everything into context and to allow Your Lordship the opportunity to review the full evidence of Dr. Kalant on point.
I don't believe either my friend -- I know I don't have any suggestion that Dr. Kalant is anything other than an impartial, independent expert witness who does not pose credibility
issues in the usual sense with an expert witness. Bias doesn't seem to be an issue with Dr. Kalant. My friend, I don't anticipate, will be suggesting Dr. Kalant's credibility is questionable. He certainly didn't suggest that in Beren at any point, in either written or oral argument.
Doctor -- I believe the description my friend and I arrived at with Dr. Kalant was, well, he's just such a prof. He's a quintessential professor.
THE COURT: All right. But presumably at some point this arises if someone tenders in affidavit form the opinion of Dr. Kalant that was prepared for Beren and Swallow.
MR. ECCLES: Yes, My Lord. And I do --THE COURT: If it's not tendered by anybody, I don't
have a problem.MR. ECCLES: Correct, My Lord.THE COURT: If it is tendered by somebody, you may
agree that rather than require Dr. Kalant to show up here to be cross-examined, that the supplementary questions in chief and/or cross-examination from Beren and Swallow will be admitted by consent, and that's up to you two to work out between now and whenever somebody wants to hand me Dr. Kalant's affidavit.
MR. ECCLES: Yes, My Lord. We are cautiously optimistic we'll reach the point of agreement.
THE COURT: All right. Well, if you don't, we'll deal with it.
MR. ECCLES: Yes, My Lord. THE COURT: Are we ready for Ms. Quin?MR. TOUSAW: Yes, My Lord. THE CLERK: Witness, having been previously affirmed, I
remind you you are still under affirmation. Please state your full name, and spell your last name for the record.
A It's Frances Gayle Quin, Q-u-i-n.THE CLERK: Thank you.THE COURT: You may be seated, Ms. Quin.A Thank you.
GAYLE QUINa witness called for the Accused, recalled.
EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING:
Q Ms. Quin, at the close of yesterday's proceedings we were discussing your consulting a physician with respect to a lump in your breast, and I believe you testified that there was going to be a biopsy performed, or there was a plan to perform a biopsy, is that right?
A That's correct.Q Can you just tell His Lordship what happened next
with respect to that issue?A Well, I actually talk -- I've tried to talk to
about four or five different doctors about the lump in my breast. And since I -- since about 2003 I got settled enough after I left Salt Spring to start trying to find a new doctor here. I wanted to keep seeing my doctor on Salt Spring, but he felt he didn't want me to -- he thought it wasn't right that I be travelling from Victoria to Salt Spring to see him, so he asked me to find a new doctor.
So I have -- the first -- I went to a clinic, and the first doctor I tried to -- I went to a walk-in clinic, and we were going through the form, and when it got to the part that it -- where it asked if I smoked, I said, "I don't smoke tobacco, but I do smoke cannabis." At which point she looked at me and said, "We can't help people like you," and asked me to leave.
So I was a little upset. So I left, and I got a bit depressed, so I took another year before I tried to find another doctor, and I went to find another doctor, and I went to go see Dr. Fraser at a different clinic, and explained to him my health conditions, and that I had a lump in my breast that I was concerned about. And he told me -- he said to me he didn't believe I was as sick as I said, and wanted to see my records, so I filled out a form to have my records shipped over here, but they never sent it in, and they never received it, and I never got a call. And I phoned them when I was going to get an appointment, and they said I wasn't.
So I got depressed again about it, and waited a little while again, and asked -- and went to -- then I found Dr. Napier, who was just starting up, and a friend at the Club who Dr. Napier had signed her Health Canada forms for her, told me to go see
her, because she -- because she at least respected cannabis as a -- as a benefic -- as beneficial for some people. So I went to go see her with the same request, that I was really concerned about the lump in my breast, and she refused me -- to be my doctor because she said she didn't have hospital privileges, and she felt I needed surgery.
So I went back home again, and suffered a couple months of depression again, from that. And eventually a friend -- and was asking friends if they knew of a good naturopath, because I was feeling the symptoms of my mercury toxicity building up again, and I needed to start my detoxification treatments. So I -- and a friend finally told me about a naturopath in Sidney. And I made an appointment to go and see her, Dr. Kristen Bovee. And I explained all of my health concerns to her, and she wrote out her request for me to get a mammogram, at which point I took it to the Burns -- Burnside clinic, walk-in clinic.
And when the doctor who examined me there saw the request, and then examined my breast, she instantly wrote a request for me to see a specialist at the Victoria General Hospital, and within -- I was in the hospital within about three days after that for a mammogram. That proved positive results, and they took me from the mammogram to have an ultrasound, and the ultrasound confirmed two cancerous lumps, one in my breast and one in my axilla, right axilla, a lymph node.
And they wanted to do a biopsy right then and there too, but it was -- I was afraid of it, and I was afraid of it aggravating the cancer, so I refused the biopsy at the time, and said I needed time to think about it. And they made an appointment for me to see a surgeon. So I went to go see the surgeon, and he scheduled me -- he did a biopsy. I tried to refuse, but he talked me into having a biopsy, fine-needle biopsy, and it came back inconclusive. And to the best of my understanding pertaining to breast cancer, 90 percent of biopsies come back inconclusive. So this is one of the reasons why I didn't want to have it done, because they do a biopsy when you're put under anesthetic just before the operation
anyway, so I didn't see the point of having it done twice.
But -- so I never mentioned my use of cannabis to any of these people except for my naturopath, because of my past history of the reactions that I've gotten from the doctors since trying to find a new doctor, moving over here. And I was very shocked and surprised at those reactions, because I'd never had a reaction from that before in my life, and I've been to see lots and lots of doctors in my younger years in Victoria, because I was so ill, and nobody -- none of the doctors could help me. All they knew was to give me antibiotics, and the antibiotics were slowly killing me. They were totally destroying my immune system, which I hardly had any one to -- of to start with anyway.
So I went to -- I started seeing every doctor in town. Actually I got -- I got into trouble for it. I got told I wasn't allowed to do that, and I said I was going to keep looking for doctors until I could find one that could work with me and help me.
Q Let me stop you there. This is all ongoing in what period of time, 2003, 2004?
A For the two thou -- oh, no, I fou -- the naturopath?
Q Yes. When did you find the naturopath?A I found my naturopath just -- well, been seeing
her for almost two years, just a little over a year, actually.
Q So this -- this process of going to a number of doctors to find one that would work with you --
A That was -- Q -- with respect to the lump in your breast is
when?A Oh, that was from 2003 up until -- 2003 up until I
found my naturopath. The other doctors -- I'm sorry, I was jumping around -- was when I lived in Victoria in the 1970s and 1980s. That's when I was on massive antibiotics. Sorry to be jumping around, sir.
Q So you are -- you find your naturopath, you have the mammogram, you get scheduled in to see a surgeon, and you refuse a biopsy.
A That's correct.Q What happens next with respect to the lump in your
breast?A Well, surgery was scheduled, and I went in for
surgery, and was prepped for surgery, and I got to talk to my anesthesiologist before I went in, and I talked to her, and I told her that I was a cannabis user. I wanted her to be aware that I had cannabis in my system to help me through the operation. And she said, "Don't worry about it at all, but thanks for letting me know. And I'll take good care of you."
And with that, they put me under, performed an operation, I had a right mastectomy, and they removed 20 lymph nodes, 17 of which had been infected with cancer.
Q And when was this?A This was on June 24th of 2011.Q We talked at some length yesterday about a variety
of health conditions you're dealing with, and today you've described the cancer. Any other health conditions that you suffer from that you haven't already testified to?
A Yes, Your Honour. I forgot that when I was 16 I had my knees crushed in an automobile accident. And I also had two crushed discs in my back from -- probably from lifting too heavy of weights for too long. Like, I'd lift people at work, lot of times quite a lot larger than myself. And I think those are the only health issues that I forgot yesterday.
Q Did the damage to your knees in your teens cause you any lasting problems?
A Yes. It -- it did. It -- it -- I had torn cartilage in my knees, and -- and I can't remember the year, but when I was working in -- on Salt Spring, the cartilage in my right knee tore again while I was at work, and I had to take three months off to recover from a laparoscopic surgery to correct it, at which point I was told I was going to have to have surgery on my left knee at some point in my life as well, as a -- from the operation. That -- I went to see a specialist, I think it was in 2005 or '6. It was giving me a little bit of trouble. And he, the specialist, X-rayed both of my knees, and he said I don't -- I don't need surgery on my left knee, and asked me what I'd been doing for them, because he couldn't find any sign of arthritis in my knees either. At
which point I told him I used cannabis massage oil twice a day, and got in a hot bathtub every chance I got -- I could. And he said to keep it up.
Q With respect to your -- well, and did you keep it up?
A Yes.Q With respect to your mastectomy, and subsequent to
that, what are the, if any, symptoms or medical conditions that you suffer from as a result of that surgery, to the present day?
A I have a -- my shoulder was injured in the surgery, and it's taken a long time to get it unfrozen, so I get a lot of pain in my shoulder still, and if I don't wave my arm around a lot and do exercises, it starts to swell up; my arm will start to swell up from the lack of lymph nodes. Although all the doctors that have seen it and the physiotherapist so far have been extremely impressed with the lack of swelling in my arm.
Q And do you take any kind of medication to deal with that pain and swelling?
A I eat cannabis, Your Honour. If I -- I have tried to stop, cut back on my amounts that I eat, and I forgot to eat it for three days once, and my arm really swelled up, and I was still eating my other anti-inflammatories. I take frankincense and turmeric as an anti-inflammatory also. My naturopath asked me to take that. But I noticed a -- a very increased difference if I backed off on my ingesting cannabis as well. It would swell up a lot more and it was a lot more painful.
Q Have you had to undertake any regime of chemotherapy, or anything else like that with respect to the cancer?
A No, I didn't, Your Honour. I was extremely fearful of chemotherapy and radiation because of my chemical sensitivities. And the first oncologist I got to talk with wasn't ver -- wasn't very informative and helpful, so I asked to see another oncologist. And it took a couple of extra weeks to get the other appointment, and by the time I got to see the other oncologist, he told me that my time for taking chemotherapy was -- had been passed. I had waited too long.
But I had been having vitamin C treatments every week before and after the surgery from my naturopath, who was -- I was administered 50, five
zero, grams of vitamin C intravenously once a week over a three-hour period, and that -- in that doses, vitamin -- it creates extra oxygen in your body, which will attack tuner -- tumours, and that's basically the same thing that chemotherapy does. So I had added health benefits. Instead of having my immune system broken down further, I had my immune system supported through the treatments.
Q Have you had any follow-up visitations or testing done to determine whether cancer has spread, whether you still have cancer, in your lymph nodes or otherwise?
A Yes. I had a CT scan performed before I saw the second oncologist. It was a request, so I went and had a CT scan done, and they reported that I'm all clear of cancer in my body, but they found I think three cysts in my liver.
Q And do you have any medical procedures scheduled to deal with those cysts?
A No, I don't.Q You've mentioned through your testimony yesterday
and today the use of cannabis. Could you -- to deal with various symptoms. Could you go into a bit more detail for His Lordship with respect to how you use cannabis, and what you use it for, and in particular what symptoms you use it for, and what if any benefit it provides you?
A Okay. Well, I'll start with my knees. I have hardly any car -- cartilage in my right knee because of the laparoscopic surgery, and as a result of the hepatitis C, it weakens your veins, so I get very bad bruising all the way around my right knee, and it would get swollen and very painful. So I use the cannabis mixed with St. John's wort oil on my knee twice a day, and it takes the pain out of my knee so I can walk, and it strengthens my veins so I can actually jog now without it bruising. Because it would get bruised and it would swell up, and then I couldn't walk properly. So if I go more than a week without using it, all of those symptoms start coming back.
I also, for my cancer, I -- for my breast cancer I mostly ingested cannabis. At the Club we make a product called Can -- Cannoil, and it's bud infused into olive oil, and I'd mix -- it's two and a half grams of bud mixed into two ounces of olive oil. And I consumed one of those every day
throughout my postoperative recovery, and it helped with the pain. It helped reduce the swelling. It allowed me to sleep. It helped to fight, to the best of my knowledge -- as I understand what was going on, it helped to keep any -- if any cancer cells were knocked loose, it would help to keep it from re-adhering. And I also was put on fractionated pectin for -- for that, as well.
THE COURT: By whom? A By my naturopath, Kristen Bovee.THE COURT: And what did your naturopath put you on? A It's called fractionated pectin.MR. TOUSAW: Q Pectin.A Yeah, yeah. And that's specifically to keep
cans -- loose cancer cells from re-adhering anywhere. It lets your body get rid of them.
And as I said, I was on other anti-inflammatories, but they weren't as effective as in -- as ingesting the cannabis. And I didn't -- I had a -- I didn't want to smoke very much, because the year before we went to Ontario, and during -- when they were spraying the fields with pesticides, and I didn't realize it, and I came home with a very bad lung infection that I'd been fighting for the whole year. And I was really afraid of the anesthetic because of this lung infection. So after the operation I didn't want to cough a lot, or very much because of the stitches and the incision, and it was so painful. So I mostly just rubbed oil -- I used cannabis massage oil, again, the -- mixed with St. John's wort to help control the internal bleeding from the incision, and to keep swelling and bruising down. And then once the bleeding had stopped from my drain, I switched over to cannabis mixed with arnica oil, because it's a better anti-inflammatory, and it helped reduce the swelling a lot more, and also kills pain. They both help kill pain.
Q You've talked about using cannabis topically for your knees, and to reduce swelling post-surgery, and eating it, and you've mentioned that you don't like to smoke it. Do you smoke cannabis?
A Yes, I do, Your Honour.Q Is it your primary mode of ingestion?
A It used to be my primary mode of ingestion, but now I'd say I probably use half, and I eat -- I eat it a lot, and I smoke to -- it sort -- it gives a boost to the cannabis that's already in your system, so you don't have to smoke as much.
Q Do you know --A So I've cut back on my smoking.Q Do you notice different --A I'm sorry.Q -- effects from smoking versus eating cannabis?A Oh, yes. Smoking, it stops pain almost instantly.
And I can even just smoke two or three puffs, if that's all you need, or I can smoke the whole joint, and -- if I'm in that much pain. Whereas eating it, it lasts a lot longer. The symptom -- the symptoms from ingesting it are a lot -- they're a lot less noticeable, in that if your body is really using the cannabis a lot, you don't get psychoactive effects from it. You just -- your muscles -- your muscles can relax, and that loosens my back so all the tension in my back, that's how it loosened my back to relieve the pain in my back. Worked a lot better eating it, because it has so much more muscle relaxing qualities to it.
And it also helps me get a better and longer sleep, because it stays in your system longer. I would -- before I started eating cannabis really regularly, I'd have to get up in the middle of the night to smoke a joint because I would be in so much pain. So if I ate -- if I eat cannabis before I go to bed, that doesn't happen any more.
Q Do you -- does applying cannabis topically give you that psychoactive effect that you just talked about?
A Not at all. No. It just gives relief from pain and swelling.
Q Now, you are a member of the Cannabis Buyers' Club of Canada?
A That's correct.Q And you have a personal relationship with Mr.
Smith, Ted Smith, that is?A I do, Your Honour.Q And how long have you had that personal
relationship with Mr. Smith?A Five years.Q When did you join the Cannabis Buyers' Club of
Canada?A In two -- 2003. March, I think.Q And at that time you didn't know Mr. Smith?A No, not at all.Q What -- Mr. Ted Smith, my apologies, Your
Lordship. At that time you did not know Mr. Ted Smith?
A No, Your Honour, I did not.Q And at that time did you know the accused,
Mr. Owen Smith?A No, I did not.Q What brought you to the Cannabis Buyers' Club of
Canada?A I had moved to Victoria, as I stated earlier,
to -- because I had feared for my life, and then I read about -- I had heard a compa -- that there was a compassion club starting in Victoria before I left Salt Spring, and then when I came over here I heard about the -- that they had some raids, and were having to go to court, and I didn't think that was right, so I tried to find them. I wanted to see what I could do to help. And I didn't want to start, and I wanted -- I wasn't growing my own cannabis any more, so I needed access to the cannabis.
Q And so you ultimately find the CBC of C?A Yeah. I tried to find the -- I actually found the
VICS first, but they wouldn't help me, and so I went back to the CBC. I went back and forth a few times before the Cannabis Buyers' Club of Canada finally let me know what I needed, and they actually helped me with the fax machine get a hold of my doctor on Salt Spring, and we faxed a note over with my conditions, and I was signed up.
Q And at that time was the CBC of C located at 826 Johnson Street?
A Yes, it was.Q And at some point after joining the CBC of C, do
you become more involved in the organization?A I started volunteering almost right away, because
it was -- I didn't meet Ted for two weeks. He was away on vacation. And there was very little staff, and it looked like they needed some help, so I started volunteering. And mostly I did a lot of cleaning, and I made posters and flyers, and things around town when -- and I started -- I found out that they had a Hempology Inter --
International Hempology Society, and so I started volunteering with that. We went to Camosun College and the University of Victoria every Wednesday afternoon and had a meeting, at 3:20 at Camosun College, and 4:20 at the University of Victoria. And I'd help with those because Ted wasn't allowed on the campus at the university due to court cases pending.
Q And at some point subsequent to working as a volunteer do you become an employee?
A Yeah. I was there as a volun -- I was in the Club one day when somebody didn't show up for work, and they were pretty -- and it -- they were pretty desperate, so they asked me if I would work on the front desk, and I said I would, and that's how I started working with them. And I -- and I was employed for -- I worked part-time on the front desk for probably three years.
Q Would this have been around 2003 to 2006?A That's correct.Q And do you have any involvement in the bakery and
the edible products?A Well, I started -- I started talking to Ted about
my past history of baking with cannabis. I didn't -- I wasn't involved with the baking, but I shared my knowledge of herbs, and -- and we had discussions about making other products of massage oils with -- mixing them with other herbs. And also the -- the addition of -- my naturopath on Salt Spring told me to start eating -- put lecithin in all of my baking to help with my joints. They would dislocate if I -- my joints dislocate if I'm exposed to too much chemical pollution. And so I started putting lecithin in my cannabis baking, and it seemed to increase the potency. And I didn't know if I was imagining it myself, at first, but my friends started asking me what I did to my baking, and I said all I did was put lecithin in it. So when I got to the Club, I -- we discussed that, why they -- if they had considered putting lecithin into the cookies. It's a fat emulsifier, so it helps your body absorb oils better.
Q And ultimately is that added to the baked goods?A To the baked goods now, yes.Q Does that -- does that role develop over time?A Yes.
Q Can you tell His Lordship about the development of that role with the Club?
A Well, I just -- I just started helping with the bakery because I love baking. As I listened to people's complaints at the Club I realized what more people were -- you know, what more of my fellow members' problems were. I'd ask them if they tried some things, and they'd say, yeah, but it wasn't working quite so well. And that's what led me to make the first arnica oil. I went to my pharmacist and asked him what -- what's the best thing that -- herbal thing you know of -- to use for arthritis, and he said ar -- and he said arnica. And I asked him if there was any reason why we -- why we shouldn't be able to mix it with cannabis and use it topically, and he told me there was no reason, and I thanked him very much, and -- and I went back to the Club and we started making the arnica in the cannabis oil, was -- was the first combination infused oil that we made. And then soon after that we started making the St. John's wort mixed with cannabis oil. Because I'd already been using the St. John's wort oil for my knees, and when I mixed the two together, I couldn't believe how much better the pain relief was than just the straight St. John's wort by itself.
Q Do you ever actually work physically inside the bakery at the CBC of C?
A Only when -- only when the baker was ill or on holidays.
Q And you described having a part-time employment with the organization. Does that ever morph into a full-time?
A Yes, it did. I started working in distribution, and the distribution full-time, and -- what was that for? Probably for -- probably for about three years I worked full-time.
Q 2006 to 2009ish?A Yeah. Around there, yeah.Q When you say -- you described a couple of
different jobs at the CBC of C. When you say front desk, my understanding is there's sort of a reception desk as you walk into the building?
A That's correct.Q And that's the front desk?A That's correct.
Q And what is that employee's role?A It's basically keeping the Club safe, because
you're the first person that anybody coming through the door meets. You -- you greet members, ask for their membership card, check the -- check the -- cross-reference their card number with the database on the computer, or we have a card file on the desk, to make sure that they're a member in good standing, or there's no messages to be passed on to them. And we check them in, and -- and they go into the rest of the building to make their purchase.
Q Then my understanding is there's then sort of an open area, and if you turn left after the front desk, and left again, you're standing in front of a counter.
A Well, that's now. At that time the distribution was in a separate room.
Q But at least now that counter is where members would actually make the purchases?
A That's correct.Q And so when you talk about being in distribution,
what's your role in distribution?A In distribution, you -- the members ask what kind
of medicine is best for their condition, and we supply -- they let us know what they want, and we supply that to them.
Q And so the person working in distribution actually sells the cannabis products?
A That's correct. And the baked goods.Q And there's a -- I take it there's a fair bit of
back and forth between the members and the staff?A Yes, there is.Q And did that --A A lot.Q A lot. And did that inform your recommendations
to Mr. Ted Smith or other staff members about product development?
A I al -- sorry. Q Did the dialogues you were having with the
members, is that part of the product development process?
A Oh, yes, very much so. Like I say, we made the arnica oil first because so many people were complaining of arth -- arthritic pain. And a lot of the members are really stuck on smoking, and it really takes a lot of engagement and explaining to
them the benefits of using it topically, and it -- and eating it, for them to actually try it.
So, like, if -- one member came and says, "I really want to cut down on my smoking," to me, one day. And he says, "Well, have you tried eating the Ryanols?" They're little capsules, a very minute dose of leaf suspended in olive oil. And I said, "If you eat two of those in the morning and two more later in the day, experiment a little bit, most people cut their smoking in half." And three days later he came back, and he was just bubbly with me, and he said, you're -- I can't -- "I can't believe that you were so right." He said, "In three days I've cut my smoking in half." So he -- just by eating the Ryanols.
Q Have you --A So --Q During your time working in distribution, did you
notice changes in the purchasing patterns of members who began to use some of the other non-smoked products?
A Well, yeah. We've developed a lot more people who come in and use the cookies regularly. We have members that don't buy the smoke, the raw herb, at all. They only come for the edibles and the massage oils. We've had -- we've had member -- we've had a member come and turn her card back in after she was cleared from cancer. She only joined the Club to fight her cancer, and when she was given the all clear, she turned her card back in to -- to discontinue her use, and said, "Thank you very much for all the help."
So we have a very varied -- some things have been on the spot. One of our members came to me very distraught. She had third degree burn blisters all over her whole body from -- she reacted to one of her radiation treatments. And the doctors told her she was going to have to have a skin graft done. And so I asked her if -- like, just give me the night, at least. It took me almost two days to come up with an aloe vera salve. It had cannabis and aloe vera and shea butter and lavender oil, which is a specific also for burns. And gave that to her, and a week later she came back and said her -- and showed her doctors first, and they couldn't believe her skin. She showed me three little tiny scars on her arm,
and she had -- didn't have to have any skin grafts. Her specialists couldn't believe the condition of her skin.
Q At some point do you cease working for the CBC of C as an employee?
A Yes. When my health started to deteriorate, I was fired.
Q And what period of time was this?A That was in -- that was in 2009.Q Do you continue to have a non-employee role with
the CBC of C?A Yes, I do. People can leave their name at the
front desk. We tell -- they're told during the sign-up sheet that if they have health concerns and would like more information or -- or one-on-one support, that they could make an appointment to see myself.
Q Is this on a volunteer basis?A Yes, it is.Q And are you familiar with the accused, Mr. Owen
Smith?A Yes, I am.Q When did you first meet him?A I met -- I met Owen Smith in 2003 at the Camosun
College Hempology meetings.Q And you're aware at some point he becomes an
employee of the CBC of C?A Yes, I was aware, yeah.Q Are you an employee -- is there an overlap in your
periods of employment?A Yeah, we were both employed at the same time, Your
Honour, yeah.Q Are you aware at some point he -- he works in the
bakery?A Well, he -- he started working right in the
bakery, because before he worked in the bakery he came to me and -- and expressed an interest in learning how to bake with cannabis, and had a friend who had a good leaf supply, and I agreed to go to their home and teach them both how to bake.
Q And did you do that?A Yes, I did.MR. TOUSAW: My Lord, I note the time. I have just a
few documents that I'm going to seek to introduce through this witness.
THE COURT: All right.MR. TOUSAW: Perhaps now would be an opportune time.
THE COURT: We'll take 15 minutes.THE CLERK: Order in court.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)(PROCEEDINGS RECONVENED)
THE CLERK: Order in court.
GAYLE QUINa witness called for the Accused, recalled.
MR. TOUSAW: Thank you, My Lord.
EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING:
Q Ms. Quin, you've described a regimen of using cannabis for a variety of conditions. Focussing just on the pain you described, postoperative pain from mastectomy, have you used any conventional pharmaceuticals to deal with that pain?
A No, I haven't.Q Do you currently use any conventional
pharmaceuticals?A No, I don't.Q Through the course of the various conditions that
you've described, and I don't want to take you all the way back to childhood, but at least in your adult life, have you had occasion to take conventional pharmaceuticals for any of those conditions?
A As I described earlier, in my late teens and early twenties I was put on numerous batteries of antibiotics, and since -- I think since after my hysterectomy in 1985 I think was probably the last time -- oh, no, the ear -- the antibiotic ear drops was the last time I used any kind of pharmaceuticals, except for when I was in the hospital with my mastectomy I ate one of their -- the nurse was really upset that I didn't want any painkillers or any anti-inflammatories, and so I finally agreed to eat one of their anti-inflammatories to settle their minds. And it -- it upset my stomach and -- and my intestines, so when they asked me if I wanted
another one, I refused it. I didn't [inaudible].MR. TOUSAW: My Lord, I'm going to -- my friend has a
copy of this. I'm going to pass a document forward titled -- the title of is, "Cannabis Buyers' Club of Canada, Medicinal Cannabis Recipe Book." I'm going to ask that it be marked as the next exhibit in these proceedings.
THE COURT: What number are we at? THE CLERK: This will be Exhibit 18, My Lord.THE COURT: Exhibit 18.
EXHIBIT 18 (on voir dire #1): Cannabis Buyers' Club of Canada - Medicinal Cannabis Recipe Book
MR. TOUSAW: And I'll ask that when that's ready it be shown to the witness.
Q Ms. Quin, what's been marked as Exhibit 18 in these proceedings has been just put in front of you. I'm going to ask if you recognize that document.
A Yes, I do.Q And what is it?A It's our -- it's our recipe book that we put
online.Q And are you the Gayle Quin that's listed as,
"Introduction by Gayle Quin and Ted Smith"?A Yes, I am.Q Did you have a role in putting this recipe book
together?A I did.Q What role was that?A I try to -- I made sure that the recipes were all
correct. I made sure that there is as much current information that I could get about the products that we use in our baking, and how we do our baking. It describes the decarboxylation process that we put the raw material through before we bake -- before we infuse it into olive oil.
Q And have you --A [Inaudible]Q Have you actually yourself done and made all of
these recipes?A Yes, I have.Q And have you yourself tried all of these products?A Yes, I have.
Q Are the recipes set in stone, or is there any sort of developmental process?
A As -- as science and our information increases, we alter the recipes if they need it, and if we think they can be improved upon. Like I mentioned earlier, the addition of the lecithin into the edibles.
Q You were here and present in court on Monday of this week when the exhibit officer testified?
A Yes, I was.Q And you heard some testimony about something
called Ryanol?A Yes, that's correct.Q Is that the item that appears at page 10 of these
proceedings? Page 10, sorry, of Exhibit 18. A Yes, it is.Q And did you yourself have occasion to be in the
Chelsea apartments where the bakery for the CBC of C operated prior to December 3, 2009?
A Yes.Q And were you familiar with the contents of the
refrigerator?A Yes, I was.Q And based on your understanding of the testimony
of the exhibit officer, were the materials photographed and seized from the Chelsea apartment on December 3, 2009, were they the ingredients that are --
A [Indiscernible]. Q -- listed in this medicinal cannabis recipe book?A Yes, they are, yeah. The empty syringes used
to -- we set the -- the oil up with it, put it into the capsules. Because you don't want to get any oil on the outside of the capsules, or it starts to dissolve them.
Q And similarly, the other products, such as Buddha Balls and the extra-strength cookies and the Cannoil, those are all products used to make the recipes in this book?
A That's correct.Q I note that -- you mention that this is available
online; it's on the website of the Cannabis Buyers' Club of Canada, is that right?
A That's -- that's correct.Q And I note that there -- for example on page 17 at
the bottom of that page, page 17 of Exhibit 18, there's what appears to be a hyperlink that says,
"View our Cannapatch video tutorial here." I take it that there are certain videos that exist online as well?
A Yeah, that's -- that's correct.Q In the nature of demonstration videos?A Yeah, yes.Q And is this document, Exhibit 18, something that's
available to your members on request?A We refer them to the online version. We don't
print the copy out to give out.Q And if the person were unable to access the online
version?A We have a copy at work that they could look at.Q I don't have any further questions with respect to
Exhibit 18. You can --A Okay. Q -- pass it back to the clerk. A Thank you.MR. TOUSAW: My Lord, the next document that I have,
I'm passing my friend a copy, is a Vancouver Island Health Authority Department of Medical Imaging, breast imaging, what appears to be a report. I'm going to ask that that be marked as Exhibit 19 in these proceedings.
THE COURT: Exhibit 19. THE CLERK: Exhibit 19, My Lord.
EXHIBIT 19 (on voir dire #1): Breast imaging report - exam date 18-Apr-2011
MR. TOUSAW: Q Ms. Quin, Exhibit 19 has just been handed to you.
I'm going to ask you if you recognize that document.
A Yes, I do.Q And is this something that was provided to you by
your physician?A Yes, it was. I had to fill out a request, an
information request form to get a copy of all of my test results, for the naturopath.
Q There's a date, an exam date and time at the top centre of Exhibit 19, 18 April, 2011. Is that consistent with the testimony you gave earlier today about when you had an ultrasound and mammogram on your right breast?
A Yeah, that's correct.MR. TOUSAW: I don't have any further questions on
Exhibit 19, My Lord. A Thank you. MR. TOUSAW: My Lord, the next document I've given my
friend a copy of and handed up is titled, "Histopathology Report," and it's dated -- appears to be dated 24 -- at least with a collection date on the bottom right of 24 June 2011 and a received date 27 June 2011. Looks like the report is as of 4 July 2011. I'll ask that that be marked as Exhibit 20 in these proceedings. It's a four-page document.
THE COURT: Exhibit 20. MR. TOUSAW: Thank you, My Lord. THE CLERK: Exhibit 20, My Lord.
EXHIBIT 20 (on voir dire #1): Histopathology Report for Gayle Quin
MR. TOUSAW: Q Ms. Quin, Exhibit 20 has been put in front of you.
Do you recognize that document?A Yes, I do.Q And is it your understanding that this is a report
conducted subsequent to your mastectomy on the materials that were removed?
A Yes.Q And did you obtain this from a physician as well?A Yes.MR. TOUSAW: I don't have any further questions with
respect to Exhibit 20, My Lord. A Thank you.MR. TOUSAW: My Lord, the next document that I'm going
to pass forward is dated November 28, 1997. Appears to be a prescription sheet, or at least a doctor's note sheet from a Dr. Roland Graham, and I'd ask that that be Exhibit 21 in these proceedings.
THE COURT: Exhibit 21.THE CLERK: Twenty-one.MR. TOUSAW: Thank you, My Lord.
EXHIBIT 21 (on voir dire #1): Prescription sheet from Dr. Roland Graham dated November 28, 1997
Q Ms. Quin, Exhibit 21 has been placed in front of you. I just ask you the same question; do you recognize that document?
A Yes, I do.Q And was Dr. Roland Graham your treating physician?A He was my treating physician when I acquired
hepatitis C, yeah. Yes.Q And did you obtain that from Dr. Graham?A Yes, I did. I believe he was trying to help me
get funding with -- in regards to getting my amalgams, fillings, taken out.
Q Did you ultimately get those fillings removed?A Yes, I did.Q Did you ultimately obtain funding for that?A No, I didn't.MR. TOUSAW: I don't have any further questions with
respect to Exhibit 21, My Lord. The last document I'm going to pass forward,
My Lord, is a four-page, again -- sorry, three-page document entitled, "Urine Toxic Metals." Appears to be dated August 12, 2002. I'd ask that it be marked as Exhibit 21 in these proceedings. There's a colour copy that's the original.
THE COURT: Twenty-two? MR. TOUSAW: Twenty-two, yes, My Lord. Thank you. The
colour's the original. The black and white copies are simply copies.
THE COURT: Exhibit 22.THE CLERK: Twenty-two, My Lord.
EXHIBIT 22 (on voir dire #1): Urine Toxic Metals report of Dr. Peter Nunn dated August 12, 2002
A Thank you.MR. TOUSAW: Q Ms. Quin, Exhibit 22 has been put in front of you,
and I'll ask you, do you recognize that document?A Yes, I do.Q And it lists, in the top right corner, a doctor,
Dr. Peter Nunn, MD. Do you recognize that name?A That's -- yes, I do.Q And who is that?A He -- he was my physician who was giving me the
heavy metal detoxification treatments in Victoria.Q And I note that it's Peter Nunn, MD. Is it your
understanding that he's a medical doctor?A Yes. He used to be a surgeon, that -- he realized
he wasn't helping people get better, so he switched his practice to more naturopathic practice, and he pretty much only did the heavy metal detoxification treatments when I was seeing him. He was specializing in that.
Q Do you know if he -- I note approximately halfway down the page -- well, this appears to show levels of metals within the body. Is that your understanding?
A That's correct.Q And does this inform your statements earlier with
respect to the elevated levels of mercury?A Yes.Q And is it your understanding that, sitting here
today, or at least at your last test, you've had lower mercury levels than this?
A Yeah, that's correct.Q And do you treat with Dr. Nunn any longer?A No. He retired.Q And your new treating naturopath is?A Is Dr. Kristen Bovee.MR. TOUSAW: I don't have any further questions on
Exhibit 22. Thank you, My Lord.A Thank you.Q Ms. Quin, are you familiar with what's known as
the Medical Marihuana Access Regulations?A Yes, I am.Q And do you currently hold an authorization to
possess issued by Health Canada?A Yes, I do.Q And when did you obtain that authorization to
possess?A I obtained that after I saw the specialist at the
hospital and got my mammogram report.Q And who -- my understanding is that a physician
has to sign an application form in order to obtain a licence; is that your understanding?
A That's correct.Q And who signed that form?A Dr. Gooch in Duncan, B.C.Q And is Dr. Gooch your treating physician?A No, he's not.Q For what purpose did you attend at Dr. Gooch's
Q And you were able to do so?A Yes, I was. Because I had a statement from the
specialist that I had breast cancer.Q Is it your understanding that breast cancer is --
or cancer is what's known as a Category 1 condition under the MMAR?
A That's correct.Q You would have attended with Dr. Gooch, then,
sometime in the late spring or early summer of 2011, is that correct?
A That's right.Q Did you have an authorization to possess dried
marihuana on December 3rd, 2009?A No, I did not.Q Had you made -- over the course of the various
attendances at different physicians' offices that you described earlier in your testimony, had you made any prior attempts to have a physician authorize you to possess dried marihuana?
A I never got that far in the interviews to be able to ask the question, since that's what I was hoping to be able to do after I found a physician to look after me. My ultimate goal was to be able to get a Health Canada card, but my first priority was just simply to find a doctor to help me.
Q And this is when you experienced what you described earlier in your testimony as the physicians not being willing to treat you?
A That's correct.Q When did you first learn about the existence of a
program that allowed you to lawfully possess dried marihuana?
A In 2001, when it first came out.Q And when did you first begin attempts to gain
access to the legal protections of that program?A Well, the first doctor that I went to, to see, and
was turned away from.Q What year would that have been? A I think it was in 2003. I'm not -- I'm not
positive, though.Q You now have the authorization to possess dried
marihuana, correct?A That's correct.Q And is it your understanding that your
authorization to possess dried marihuana also allows you to make the massage oil, for example?
Q Is it your understanding that your authorization to possess allows you to extract the active ingredients into the butter?
A No. As far as -- as far as I understand, I'm not allowed to do that. I haven't been keeping up to date with the changes as much as I'd like to because of my health concerns.
Q Has -- have you ever -- subsequent to receiving an authorization to possess dried marihuana, has Health Canada ever provided with you any information about how to make the massage oils or the butters or the other products that you use?
A No, they haven't.Q Has Health Canada ever provided to you -- directly
as opposed to indirectly on its website, has Health Canada ever provided to you a document titled, "Information for Health Care Professionals"?
A No.Q Has Health Canada ever provided directly to you a
document in the nature of frequently asked questions about medical use of marihuana?
A Yes. There was a document like that, I think, in with my --
THE COURT: Sorry, what was that, ma'am? I can't hear you.
A There's a -- I think I remember there was a page that said, "Frequently asked questions about the use of marihuana," or, "Things you should know." I'm not sure, sorry.
MR. TOUSAW: Could I have --A I'm not --MR. TOUSAW: -- what's been marked as Exhibit C for
identification put before Ms. Quin, please? A I can't remember precisely what all is in the
package, off the top of my head. Q And, Ms. Quin, the document that's been marked in
these proceedings as Exhibit C for identification has been placed in front of you. I'm going to ask you to turn to Tab 1. And while you're doing that -- well, I'll ask you, have you ever seen the document that appears at Tab 1?
A No.Q I'll ask you to turn to Tab 2. Same question;
have you seen the document that appears at Tab 2?A No, I haven't seen this before.Q I'll turn to Tab 9, ask you to turn to Tab 9.
Have you seen the document that appears at Tab 9?A Having a little bit of trouble reading without my
glasses on, sorry.THE COURT: Do you have your glasses here? A No, I don't, sorry. I forgot them this morning.
It looks similar to the application form we had to fill out, but it's not quite the same. It's not the same.
MR. TOUSAW:Q And Tab 10?A Just --Q Have you seen that before?A No.MR. TOUSAW: No further questions on Exhibit C for
identification. Thank you, My Lord. A Sorry.Q Ms. Quin, in the period between 2003 and 2011,
when Dr. Gooch signed your application to possess dried marihuana, did you ever contact Health Canada seeking to find the name of doctors that were willing to sign these application forms?
A No, Your Honour, I didn't. I was actually in disagreement with the program, and I didn't -- and I was more interested in just finding a doctor to help me than getting my MMAR forms signed.
Q Are you aware of whether or not Health Canada maintains a list of signing physicians on its website?
A No, I'm not aware of that.Q Have you -- you're aware that you have the
opportunity to ... MR. TOUSAW: I just have one more document to pass up,
Your Honour. I apologize; this one's unstapled. It is a two-page document.
THE CLERK: I have a stapler, My Lord.MR TOUSAW: Thank you.THE COURT: All right.MR. TOUSAW: I pass a copy to my friend. It's not the
best looking printout, My Lord, but I ask that it be marked as Exhibit 23.
THE COURT: Exhibit 23. THE CLERK: Twenty-three.
EXHIBIT 23 (on voir dire #1): Letter from Dr. Kristen Bovee dated January 6, 2012
Q Ms. Quin, Exhibit 23 in these proceedings has been put in front of you, and on the second page of that document there appears to be a signature and a stamp of a Dr. Kristen Bovee, MD. Is that the naturopathic doctor that you treat with?
A Yes, it is.Q And do you recognize this, this document?A Yes, it is. I asked her if she would write a
support letter for me for court.Q And this is the document that you received there?A Yes.Q I appreciate it's a little difficult to read. A Yeah, it's a little difficult to read, but, yeah,
it looks like it.Q I have --A Natural medicines. Yeah.THE COURT: Pardon me? A I'm trying to read. It says, "Throughout her
care, Gayle utilized natural medicines." Yeah, this is the document.
MR. TOUSAW: Q And this -- this document indicates that you first
attended on March 14, 2011, at Dr. Bovee's office. That's in the first --
A Okay, yeah.Q -- paragraph. Does that --A Mm-hmm. Q -- comport with your understanding?A Yes.Q And in the fourth paragraph there's an indication
that -- that you, Ms. Quin, followed Dr. Bovee's encouragement to obtain an ultrasound, a mammogram. Does that comport with --
A That's --Q -- what you testified to earlier today?A That's correct.Q And it's accurate that during the course of your
care you used natural medicines?A That's correct. I used only natural meth -- only
natural medicines except for the one single anti-inflammatory pill that I ate in the hospital.
Q There is a description in the last full paragraph, page 1, of your use of massage oil and a description of the healing of your incisions and minimal swelling. Does that comport with your understanding of what was happening to your body as you were using these products?
A Yes. In fact I had to -- I had a little bit of trouble with my drain, and I had to go to see a -- my surgeon was away, so I had to see another surgeon, and I had to go to emergency once, and saw a nurse there about my drain, too. And everybody who -- all of the doctors that looked at my incision were just amazed at how well it had healed and how little swelling I had. I got comments from every doctor that looked at me about it.
Q My understanding is that your authorization to possess dried marihuana is issued for a one-year period; is that accurate?
A That's correct.Q And when does your authorization to possess dried
marihuana expire?A It will expire in next Ju -- June or July.Q Have you had any assurances from Dr. Gooch or any
other physician that you'll be able to renew that licence?
A Not yet. I haven't been to see Dr. Gooch again yet.
Q From the time that you saw Dr. Gooch -- and he, I take it, signed what's known as a Form B1 on your behalf?
A Mm-hmm.Q You have to say "yes" or "no". A Yes. Yes, sir.Q From the --MR. ECCLES: My Lord, I will at this point caution my
friend to avoid leading regarding specific details of forms and information. The Crown would prefer that we know what the witness recalls, as opposed to what Mr. Tousaw knows.
MR. TOUSAW: Yes, My Lord. Q Dr. Gooch signed some forms on your behalf, is
that correct?A Yes, he did.Q And what's the next step in the process that you
took to obtain a licence from Health Canada?A I went -- I went to see Dr. Gooch, and he had an
in depth discussion about my history, and I showed him the mammograms, and he agreed that I would be a candidate for these, considering that the surgeon had recommended that I go through radiation or chemotherapy, and he signed the forms. And we -- I paid him $125, and we mailed
them in. We mailed them in, and I got my authorization back in the mail in about six weeks later.
Q And you say "the forms". Do you recall which forms precisely you had to submit?
A I had to submit the -- the doctor -- the doctors submit, there's, like, four forms. First one for the -- maybe one for the doctor and my condition, and there was three pages to that, I believe, with how much he prescribed for me to take a day, which my prescription is 10 grams a day, and because I like to eat it, it takes -- you need more to eat to get medicinal effects than smoking. And I filled out, I can't remember the name, which exactly number the form is, but I also filled out the form to obtain dried cannabis from the government.
Q And have you obtained that cannabis?A No.Q Did you -- well, how did you --A [Indiscernible]Q How did you find the process of obtaining your
authorization to possess?A Well, I helped other people at the Club who want
to apply for it. We have all the MMAR forms at the Club for people who want to apply for their licence, and we encourage people to do that. So I've known about the process for a while, yeah. But I just didn't access it, because I had -- didn't have a doctor.
Q So you were familiar with the forms that needed to be filled out and what you -- the steps you needed to take?
A Yes, I was.Q Since receiving your authorization to possess
dried marihuana, where do you obtain your -- where do you obtain your cannabis?
A I -- I obtain my cannabis from the Cannabis Buyers' Club of Canada.
Q And does that include dried cannabis and other products?
A Yes, it does. I'm extremely -- as I've said before, I'm extremely chemically sensitive, and other people -- a couple of people have brought in their dried cannabis that they received from Health Canada, and -- for us to look at, and just from the conditions that it was growing -- grown
under and by looking at it and smelling at it, I knew I wouldn't be able to smoke it, because I could -- just from smelling it, I could detect chemical residues.
Q And have you actually ever consumed the cannabis sold by Health Canada?
A No, I haven't.Q To your knowledge are you able to purchase medical
cannabis derivatives such as the oils or the cookies from Health Canada?
A No, not that I'm aware of.Q When you have reviewed the various forms that you
say you've reviewed at Cannabis Buyers' Club of Canada, or in your own application process, have you ever seen a form that was a sort of an order form for non-dried cannabis?
A No, I haven't.MR. TOUSAW: If I can have a moment just to speak to my
client, My Lord? THE COURT: Yes. MR. TOUSAW: My Lord, those are my questions for this
witness.THE COURT: Mr. Eccles.MR. ECCLES: Thank you, My Lord.
CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES:
Q Ms. Quin, items, the medical records, Exhibits 19, 20, 21, 22, and 23 that have been entered into the proceedings today, when were those materials provided to my friend?
A The -- the medical -- Q Yeah, the medical stuff. A -- reports? Q Yeah. A I -- yesterday.Q Now, for a number of years, as I understand it,
you worked as a long-term care aide; is that correct?
A That's correct.Q And was that primarily in Salt Spring -- in Salt
Spring Island, here in the Province of British Columbia?
A Yes, that's right. I worked for two years in Victoria first, at the Glengarry hospitals.
Q And you trained at Camos -- or you took schooling at Camosun College?
A Camosun College.Q Camosun? Sorry, I never --A That's correct.Q -- pronounce that -- A That's correct.Q How long is the long-term care aide program at
Camosun?A It was four months.Q And as a long-term care aide, what predom -- who
predominantly was it that you would be providing care to?
A The -- the residents of the hospital, who is -- extended care hospitals, so they were elderly residents.
Q And that particular line of employment involves caring for elderly individuals in varying states of health, correct?
A That's correct.Q Some are bedridden and require lifting assistance
to transfer from one bed to another, or even turn over to avoid bed sores, correct?
A That's correct.Q It can be physically demanding work, correct?A It was very physically demanding work.Q In recent years Workers' Compensation Board has
imposed requirements on long-term care facilities and hospitals to assist long-term care aiders with lifting of patients, and the like, to obviate some of the load of trying to lift a 200-pound individual from one bed to another; is that correct?
A We had -- we -- we were taught how to lift people in teams, and in extreme cases we had what was called a Hoyer Lift, and it was basically a sling that you could lay underneath a person and jack them up and transfer them from the bed into a chair, or into the bathtub, or whatever. So that was for people who were capable of helping transfer on their own.
Q As a long-term care aide, you're not authorized to prescribe medications to patients, right?
A That's correct.Q And --A Or administer.Q Or administer?A Yeah.Q And as a long-term care aide, the Camosun College
program covers all aspects of health-care for debilitated or long-term care patients in the four months that you take the course, correct?
A That's correct.Q Focusing on safe lifting practices, things to
observe for, bed sores and the like?A Yeah, that's correct. And general care of
geriatrics.Q And that includes care and how to deal with
elderly Alzheimer's patients, correct?A That's correct.Q There are serious -- occasionally serious mental
health issues with the elderly suffering from dementia or Alzheimer's, correct?
A Very much so.Q They can become quite violent, through no fault of
their own; it's just part of the disease, correct?A That's correct.Q And that's something you're trained in through
Camosun College?A That's correct.Q How to assist and how to deal compassionately and
effectively with senile dementia patients, Alzheimer's patients, and the like?
A That's correct, Your Honour.Q That's all part of what's covered in the
four-month program?A Mm-hmm, yes.Q You're not a registered nurse, are you?A No, I'm not.Q You're not a naturopath?A No, I'm not.Q You're not an herbalist?A No, I'm not.Q You're not a traditional Chinese medicine
practitioner?A No, I'm not.Q Now, when did you stop working as a long-term care
aide? I probably have it here, but I've lost track of it.
A Oh, jeepers. It would have been 1989, very late, when I was hospitalized with hepatitis C. I wasn't able to return back to work after that.
MR. ECCLES: Could the witness be shown Exhibit 18, please?
A Thank you.Q Now, this is a printout of the Cannabis Buyers'
Club of Canada, Medical Cannabis Recipe Book, correct?
A That's correct.Q And this is available on the CBC of C's website in
a number of formats, PDF format, so that an individual who's interested can go to the website, open the document, and then print it out, correct?
A That's correct.Q The introduction to that document, the first page,
who authored that introduction? Is that your writing or is that Mr. Smith's or did you work --
A It's a combination -- Q -- together?A -- we worked together on.Q And I take it that in the introductory section,
down to page 2, "Methods," you're setting out the joint beliefs of yourself and Mr. Smith regarding the efficacy of cannabis as a health product, correct?
A That's correct.Q And you've indicated as well that part of what you
did do, and as I understand it currently do at the CBC of C, is assist individuals who are members or seeking membership with knowledge about the efficacy of cannabis products to treat the conditions they advise you of, correct?
A That's correct.Q And you assist them in advising them as to what
particular form of cannabis product would best suit their needs?
A That's correct.Q And in doing so, you're mindful of -- you're not
departing from the information contained on page 1 of the Cannabis Buyers' Club of Canada, Medical Cannabis Recipe Book, in the introduction, the purportions [phonetic] at page 1 that describe the efficacy of cannabis in treatment of individuals, that's fair? Let me back up and try that again. When you're assisting members who come forward to the Club and want advice on what product they should use, you do -- do you depart from or contradict anything that's set out in the first three full paragraphs of page 1? Read them over to yourself just so we're clear on what I'm asking you, if you could, please.
THE COURT: Are you going to be able to read this without your glasses?
A Oh, yes. It's big enough printing, Your Honour. Thank you.
Okay, yeah.MR. ECCLES: Q So that is sort of a capsule version of -- of the
core belief you bring to your relationship with the members when advising them on the use of cannabis as a health product, is that --
A That's correct.Q -- fair?A That's correct.Q And you've been work -- you were working full-time
at the Cannabis Buyers' Club of Canada; starting in 2006 was when you started your full-time employment there?
A I think so, yeah. Roughly, yeah.Q And from 2003 to 2006 you volunteered at the Club
and worked part-time, correct?A That's correct.Q So basically for six years you were employed
either part- or full-time at the Cannabis Buyers' Club, correct?
A That's correct.Q Initially on the front desk, and then in the -- at
the distribution desk, correct?A That's correct, sir.Q And at the distribution desk, there's a -- it's a
counter with a glass dis -- I'll call it a display case, where the members can come forward and look and see what is on offer for the day as far as cannabis dried products that they can purchase, correct?
A That's correct, Your Honour.Q And as one stands and faces that counter, there
will be in small jars roughly -- roughly the width of the cap of a pen, and each jar would have a sample; it's a clear glass jar with a sample of what's in it?
A The -- the sample jars are weighed out to 3.5 grams, so people will know what it looks like. Some people like fluffier buds, and some people like really dense buds, and it's quite obvious by -- just by looking at it, the size of the 3.5 grams can be quite different, depending on the density of the buds.
Q And directly to the left of that glass display case is a fridge containing the various edible
products that are made available, correct?A That's correct, Your Honour.Q Turning to the -- the edible products, when
they're refrigerated do they have much of an odour?
A No.Q The dried products, however, have an odour ranging
from mild to pungent, depending on the strain of cannabis in the jar, correct?
A That's correct, Your Honour.Q It's a rather distinctive smell?A Yes, it is.Q Do you have any difficulty recognizing the smell
of dried cannabis?A No.Q If I was to place before you three jars of green
plant-like material looking vaguely similar, we use the old joke from our high school days, bag of oregano, bag of dried parsley, and a bag of dried marihuana, would you have any difficulty telling the difference between the three and picking out which was the marihuana?
A No, I wouldn't.Q If I was to put before you three glass jars, one
containing a dark oily substance, a second containing a dark oily substance, and a third containing marihuana-infused olive oil, similar colour to the other two jars, all refrigerated to the same temperature, would you be able to tell the three apart by smell?
A Yes, I think so.Q You seem a little less sure, just judging from
your having to consider it. It would be a more difficult task, would it not?
A The odour isn't as strong once it's in oil.Q Now, the information you provide to members when
you're working at the distribution counter, does that include advising members as to which particular cannabis product will best treat the condition they present with?
A Yes, it does.Q And does that include advising members that
cannabis can be used to replace allopathic medicines?
A In some cases.Q Allopathic, what exactly does the word allopathic
A Modern medicine or man-made medicine.Q So pharmaceutical? A Or chemically -- pharmaceutical drugs, yeah, and
chemically produced.Q And part of the information you provide to members
is that for some individuals, as you understand it, they may be able to replace their pharmaceutical products with cannabis products, correct?
A In some instances, yes.MR. ECCLES: My Lord, I note the time. It's a minute
or two early, but I would like the opportunity to review the medical records. I'm hoping I'll have no questions on them, but --
THE COURT: All right. Till two o'clock.MR. ECCLES: Thank you, My Lord.MR. TOUSAW: Thank you, My Lord.THE CLERK: Order in court. A Thank you.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR NOON RECESS)(PROCEEDINGS RECONVENED)
THE CLERK: Witness, I remind you, you are still under affirmation.
A Yes, sir. Thank you.
GAYLE QUINa witness called for the Accused, recalled.
CROSS-EXAM ON VOIR DIRE BY MR. ECCLES, CONTINUING:
Q Ms. Quin, during your evidence in chief you described working on the front desk, I believe, at, for lack of better words, the CBC of C, the desk where individuals come in to show their membership card?
A Yes.Q You worked there on a part-time basis, or
full-time?A Part-time.Q In your work on the front desk, did you also sign
up people as members of the CBC of C?A Yes, I did.
Q And in the course of the sign-up process, what information did you require individuals provide?
A They need a note from their doctor stating a permanent physical condition or disease.
Q Would you accept an individual for membership if rather than a note from their doctor they were to present with medication or a recognized permanently disabling condition, such as retrovirals for HIV/AIDS?
A On occasion, and -- and we would ask for a doctor's note, supporting note, as well, at a later date, if they didn't have it, when they showed up just with their medication, if they had proper photo ID to verify that that's who -- actually who they were.
Q Was there a written outline of what was required and what process should be followed in screening applicants?
A A written? Q Yes, a check sheet, or something like that?A Oh, yeah, yes.Q Where was the check sheet or written outline of
information required from applicants kept?A In the front desk, beside -- on the lower
right-hand drawer.Q And was this provided to the applicants, or was
this something that you would reference?A This was something that we would reference, and if
we were unsure of a condition, if it wasn't specified in our -- in our procedure manual, then we would check online to see if it was a chronic or permanent condition.
Q If an individual attended with medical records indicating a chronic condition, but advised that they were no longer seeing their treating physician or they no longer had a treating physician, or their treating physician didn't believe in cannabis therapy and wouldn't sign anything, but this is what I've got, would that be sufficient to be accepted?
A If it was proof of a permanent physical condition or a disease.
Q And what conditions or diseases would be accepted? Anything permanent and disabling?
A Physically.Q What if any inquiries are made of individuals who
present with physical chronic pain conditions of a
non -- permanent ongoing chronic pain, what if any inquiries are made as to their psychiatric history?
A We're -- we don't ask specifically, if it's not provided at the time.
Q And what if any questions are asked regarding their medication history, current and past medications they may be on?
A That's not discussed unless they come and ask to speak to me about health concerns, and then I go through the products and their health issues with them, and advise them to go and speak further with their pharmacist to make sure there's no counter indications of what the drugs that they're taking now are --
Q Do you -- oh, I'm sorry. A The -- the drugs that they were already
prescribed, if they would -- to make sure that there would be not interactions with the cannabis they wanted to use, I'd ask them to go and talk to their pharmacist about that.
Q You've indicated there were some medical conditions that you believe cannabis can be used and replace allopathic medications; you mentioned that earlier, correct?
A That's correct, sir.Q Which conditions would that be?A Inflammatory conditions, especially, like
tonsillitis, arthritis, hepatitis, things like that. It's a -- cannabis is a very beneficial anti-inflammatory with -- I haven't found any adverse side effects yet so far from anybody.
Q If an applicant for membership chooses not to share their psychiatric history, I take it you don't press them?
A No, sir.Q And if an applicant chooses not to share their
medication history, you don't press them?A No, sir, we don't.Q Now, my friend put before you Exhibit C in these
proceedings. It's the ...A Thank you.Q And on the cover of Exhibit C it says, "Health
Canada Website Information." The first question I'll ask is, have you visited on the web, Health Canada's website for the medical mari -- Marihuana Medical Access Regulations?
A I have tried on several occasions. The first three times that I tried, their -- the website was down. I couldn't access at all -- any of it at all.
Q And currently? When was the last time you tried?A Oh, it would have -- oh, at least two years ago,
I -- yeah.Q Have you ever been able to open the website,
access the website?A Personally, no.Q Have you recent -- have you at any point, through
either web research or library research, looked into the process that is -- one must follow to obtain approval under the Food and Drugs Act for a health product?
A I've looked at some documents pertaining to that, but I haven't read the whole thing.
Q I take it you've never looked into whether or not it could be possible to obtain FDA approval for massage oils that are infused with cannabis?
A Yeah, no. Ted was looking into things like that.THE COURT: Sorry, what was that, ma'am? A Sorry. Ted was looking into the proper regulatory
procedures to go through.MR. ECCLES: Q And by "Ted" you mean Mr. Ted Smith?A Mr. Smith, yes, sorry.Q Have you ever heard of the phrase, "First pass
effect," in relation to consuming medications?A No.Q Have you in the course of your years of using
cannabis and cannabis based products to assist your health looked into the varying absorption rates between smoked cannabis and consumed cannabis?
A I have.Q Is it your understanding that vapourized or smoked
cannabis has a higher absorption rate than consumed cannabis products?
A Yes, that's corr -- yeah.Q And the level of absorption may vary depending on
the nature of the product and how one ingests it; is that fair to say?
A That's very fair to say. It totally depends on the state of a person's lungs, if they're smoking it, and it totally depends on the state of a person's digestive tract, if they want to ingest
it. I advise people to start with -- if they have never eaten cannabis before, to start with a very, very minute dosage. It could -- the first time you eat cannabis it can produce a lot stronger effects than normal, so I would advise people to take a quarter of the normal dose, dosage, until they're used to the effects of it, and then to gradually increase it if they need to.
MR. ECCLES: Perhaps the witness can be shown Exhibit 18 again, please.
Q I'd just like to -- I understand you -- you assisted in authoring this document, correct?
A That's correct.Q And on page 1 of the document, the second full
paragraph, the sentence starting that paragraph is:
Cannabis can be used to replace almost any type of allopathic medicine, from diuretics to anti-depressants - ear oil; throat sprays and salves that reduce tumors.
I've read that sentence correctly? A Yes.Q And that was your belief at the time the
document -- this document was created, and continues to be your belief today; is that fair to say?
A Yeah, it is fair.Q And that's one of the things that you assist the
membership of the CBC of C when they're questioning you about products and the like, that's the sort of information you impart to them?
A That's correct.Q Carrying on that paragraph:
Extracts have been found to be effective on everything from bacteria and fungi, to the herpes virus and staphylococcus.
You've also -- that's also the belief you held then, and it's the belief you hold today?
A Yes, sir.Q And that's information that you impart to members
of the CBC of C when they come to you to ask for questions and advice and assistance in designing a treatment regimen?
A Yes, sir. I also remind everybody that everybody is a unique individual, and not everything works for everybody.
Q And that applies -- that's the advice you give them --
A That applies for cannabis as well.Q Cannabis as well as allopathic medications?A That's right.Q Now, prior to your work at the CBC of C and
assisting in the preparation of the recipe book, when you first started to ingest cannabis orally, eat it, how did you prepare whatever -- how did you get it into an edible form?
A I cook it into olive oil.Q So that's always been your practice?A Not always. When I was really sick I tried to
just throw the leaf into my pancake batter and eat it like that, so I could cook and eat -- eat the same day.
Q Did that work?A Not well. It's -- it was very hard to chew and
swallow, and I never get my whole pancake down.Q In your evidence in chief you indicated that
initially you attended to the VICS, the Vancouver Island Compassion Society, and they would not assist you. Why would they not assist you?
A I don't know. They never -- they never answered my questions. They offered me a magazine that I was looking for, and asked me to leave.
Q And thereafter you found the Cannabis Buyers' Club and began to gain assistance from them?
A That's correct.Q Have you ever worked in a laboratory?A No, sir, I haven't.Q Have you ever assisted in the conduct of a
political trial for allopathic or naturopathic health products?
A No, I haven't.Q Oh, in Exhibits 19 through 23, which is the
medical information you've provided for us today --
A About my breast cancer.Q Your breast cancer. A Okay. Thank you.Q The breast imaging histopathology report, the note
from Dr. Graham dated November 28, 1997 -- A Mm-hmm.
Q -- and the urine toxic metals analysis, and then the letter from the naturopathic physician, Dr. Christine Boyce.
A Bovee.Q Sorry?A Bovee, sorry.Q Oh. I guess you're not the only one that needs
new glasses. Yes. That's not your complete chart, by any stretch of the imagination is it?
A No, not by any means.Q And from working in a long-term care facility,
you're familiar with medical charting and how extensive the documentation in there can get to be?
A Yes, I am.MR. ECCLES: Could the witness be shown Exhibit A for
identification, please? It's the Cannabis Buyers' Club of Canada product guide.
A Thank you.Q You have Exhibit A before you, correct? It's the
Cannabis Buyers' Club of Canada product guide. A Yes, I do.Q Did you assist in preparing this product guide?A Yes, I did.Q Which portions did you assist in the preparation
of?A All of it.Q Now, on -- just so we're all on the same -- clear
on -- or on the same page, so to speak, this is actually a pamphlet form that's been printed on 8 by 11 paper, is that correct?
A That's correct. Folded.Q So if we're looking at the first page of this
document that's before you, there's three columns. Left to right, the left column is "Edible Products," correct?
A That's correct.Q And did you assist in the description of the
various edible products set out here?A Yes, I did.Q And is that -- the description of the products
that's on the page, does that match the description of products that you would give to members when they are at the distribution desk and they're asking questions about what's available?
A That's right. That's correct.Q Would you also provide members with questions with
this particular pamphlet so that they can read it at their leisure and give some thought to it?
A This pamphlet? Q Yes. A Yes, always. As soon as they've signed up to the
Club.Q As soon as they're signed up to the Club, they're
handed this so they know what the Club can make available to them?
A That's correct.Q And so that they know or can inform themselves as
to what the Club believes these products will assist them with, is that correct?
A That's correct. I've asked -- when members have had trouble talk -- talking to their doctors about cannabis, I suggest they take -- take -- taking the product guide to show to their doctors to help educate them about the herb.
Q Do you suggest to the members that they direct the doctors to Health Canada's MMAR website, and in particular the portion of the website with Information for Medical Health Care Practitioners?
A We -- we tell mem -- we tell members when they signed up that we have medical -- the application forms for the MMAR program if they wish to take them to have their doctors sign them.
Q Now -- A And that there is a website if they want more
information.Q Now, on form A -- or Exhibit A for identification,
under, "Conditions helped with cannabis," there's a list of various matters. The first on that list is:
AIDS, HIV, wasting conditions, affected immune systems, and cancer are all greatly benefited by ingesting cannabis. It is a smooth-muscle relaxant, stops nausea, stimulates the appetite, eases hot flashes and enables one to eat, and maintain their normal body weight.
Is that sort of -- that information, information you would communicate to the members if they question you when you're on the -- about what do I do for this or that at the distribution desk or when they're signing up?
A Yeah. This is the type of information that I provide them, yeah.
Q And then the next heading is:
Tumors of all types (including breast and fibroids) have been reduced with the use of cannabis. The antitumor properties of THC (tetra-hydrocannabinol) and CBN (Cannabinol) can inhibit tumor growth by 25% to 82%, without damaging normal cells.
And then there's a bracket:
(Harris et al., 1974)
End brackets. Do you know what "Harris et al, 1974," refers to?
A That refers to a scientific study that was done in the use of cannabis being injected directly into tumours, I believe, if my memory is serving me right.
Q And have you looked at anything since Harris 1974 in this particular area to assist your members and suggest to them where they might follow up?
A Not lately. Mostly it's what I witness with my own eyes.
Q And this information about tumours is information you provide to the members when they're at either the sign-up desk, when you were working part-time, or at the distribution desk where you -- when you worked full-time, to assist them in selecting their medication?
A I wouldn't read the whole product guide over with each member.
Q Well --A I just -- just gave it to them for them to read
when they took it home, and then I would ask them to have a blank piece of paper with them to write down any questions that came back, and then bring that back to discuss with me --
Q And that --A -- further.Q That assists you and the member in focussing their
inquiries?A Yeah. It helped to -- we do discuss a lot of the
benefits in the sign up procedure, and it helps, and I ask them to read through it, because it
helps to retain in their memory a little bit, if they go over it. We go -- we give them a lot of information. It's a 45-minute to an hour introduction to the Club, and it's quite overwhelming for people when they're really sick and in a lot of pain. So that's why we made the product guide, so they would have something they could go home and go over at their convenience when they were more able to absorb it.
Q And when they come back, part of your role with the CBC of C when you're on the distribution desk is to assist them in selecting the appropriate cannabis product for their condition, correct?
A Yes, that's correct.Q And informing them as you understand it of what
the various products do and how they can assist their health?
A That's correct. And also I inform them -- I ask if they have any anxiety issues, really, and then I ask them to stay away from the right-hand side, which to them would be the left-hand end of the medicine jars, because that's where we keep our sativas, and sativas have been shown to -- in some cases they can aggravate anxiety type issues, so we strongly encourage our members to stay away from them.
Q Are there any other contraindications that you bring to the attention of members, or any other risks regarding the use of cannabis products that you bring to the attention of members when they're asking your advice?
A I try to encourage them to eat the edibles, because they are such better at pain killing, and smoking over a long-term isn't the best thing to do for your lungs. And I -- I'm sorry, would you say that again? Sorry.
Q Sorry, just what -- other than, you know, the suggesting sativas versus indicas --
A Oh, yeah. No, that's about the extent of the -- any problems that have arisen from people. That's usually what it is. So we try to discuss that with everybody who signs up, make them aware of it.
Q Do you canvass with female members who are signing up whether they are currently pregnant or contemplating becoming pregnant in the near future?
A No, I don't ask specifically.Q Do you ask potential members or individuals
approaching the distribution desk whether they have a history of schizophrenia, manic depression, or bipolar disorder?
A Not specifically. We ask if they've had -- we will ask if they have, like I say, anxiety or other mental issues, and -- and then, like I say, just ask to refrain from the sativa end.
Q Is there a standardized check sheet of areas of concern that are to be canvassed with members when they approach the distribution desk? Is there a standard set of questions?
A For? Q For members who are -- if someone's at the desk,
and they say I'd like to buy three grams, are there standard questions you on the distribution desk ask them?
A We'd ask them right away if they'd like an indica or a sativa.
Q Any other questions?A No, no.MR. ECCLES: Those are my questions, My Lord. THE COURT: Re-examination?MR. TOUSAW: None, My Lord.THE COURT: May this witness be excused? MR. TOUSAW: Yes, My Lord.THE COURT: Thank you, Ms. Quin, for your help. You're
now excused.A Thank you very much, Your Honour.
(WITNESS EXCUSED)
MR. ECCLES: My Lord, I've had a brief discussion with my friend. I note that it is very early. However, I seem to be having some health issues today, and the next -- the next witness would be another individual who would provide evidence as a patient, slash, member of the CBC of C. However, my friend has also scheduled, as I understand it, Dr. Pate to fly in from --
MR. TOUSAW: California.MR. ECCLES: -- from Berkeley, and to be on the stand
Monday morning at 10:00. Subject to Your Lordship's wishes, I would -- I'm asking if we can stand down early, for the simple reason that I'm not well and having some difficulty focussing.
THE COURT: All right. Has Dr. Pate done a written report?
MR. ECCLES: Yes, he does -- THE COURT: And is it intended that I'm to take that as
in evidence? MR. TOUSAW: Yes, My Lord. I have a written report.
I've provided it to my friend on or about the 6th of January.
THE COURT: Has somebody got a copy for me? MR. TOUSAW: I can provide -- see if I have a copy with
me. It's an unsworn report, because I didn't have an opportunity to have him swear it in person. He's been out of the country. But it is not going to change.
I thank my friend. It's a hole-punched version, signed but unsworn.
MR. ECCLES: I don't -- I'm not concerned, My Lord, as to whether it's sworn. That seems to be an Ontario and a California practice, but it's not my understanding that --
THE COURT: All right, well -- MR. ECCLES: -- it's practice here.THE COURT: I mean, we don't need to file it right now.
I'd just like a copy to read over the weekend so that I'm ready for it.
MR. TOUSAW: Yes. Thank you, My Lord. THE COURT: All right. Then ten o'clock Monday
morning. THE CLERK: Order in court.
(PROCEEDINGS ADJOURNED TO JANUARY 23, 2012, AT 10 A.M.)
THE CLERK: In the Supreme Court of British Columbia, this Monday the 23rd day of January, 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, for the Federal Crown.
THE COURT: Yes, Mr. Eccles. MS. GUEST: And Kristina Guest, G-u-e-s-t, for the
Federal Crown. THE COURT: Thank you. MR. TOUSAW: My Lord, it's Tousaw, T-o-u-s-a-w, first
initial K. I appear for Mr. Owen Smith -- THE COURT: Thank you. MR. TOUSAW: -- who is present, My Lord. My Lord, as
the next witness in these proceedings, Mr. Smith would like to call Dr. David Pate, who I understand will be affirming.
DAVID PATEa witness called for the Accused, affirmed.
THE CLERK: Please state your full name and spell your last name for the record?
A David Walter Pate. That's P-a-t-e. THE COURT: All right. You may be seated, Dr. Pate. MR. TOUSAW: My Lord, I propose to qualify Dr. Pate as
an expert in two general areas, the first being biology and specifically plant biology, that is the -- his Masters of Science degree was in that subject, and secondly in the area of pharmaceutical chemistry which I understand is essentially a combination of biological, medical and physical sciences in the study of the scientific aspects of drug therapy with particular emphasis on the chemical nature of reactions and interactions involved in drug therapy, both of those going towards as he says in the report that was passed up on Friday an emphasis of his professional work being medicinal aspects of phytocannabinoids which are cannabinoids produced in the cannabis plant and endocannabinoids which are cannabinoids endogenous to the human body and that's at paragraph 4 of the report. I don't
understand there to be an issue with qualifications, but I'll leave it to my friend to speak to that.
MR. ECCLES: I do not anticipate there being an issue on qualifications, My Lord. I anticipate the Crown's questions will go to weight to be accorded to the opinion and I may have further submissions to make. My friend has provided me with the report that's been handed up which is a rather thick volume. I don't believe I have received the publication list that is now included with the report and accordingly I haven't had an opportunity to provide that to my client. I received a report and a CV, but no publication list from my friend.
THE COURT: Well, I got a draft affidavit and that's all I've seen. Is there more?
MR. TOUSAW: Yes, My Lord. I have -- I have a full package that I propose to pass forward. It includes -- that's what we handed up on Friday, that my friend had a copy of. The -- the report that I hand up today has been sworn by Dr. Pate this morning. That includes as exhibits his curriculum vitae which I did provide to my friend. It includes also a list of publications which I thought I provided to my friend, but if I did not that'll -- he'll have to accept my apologies, as well as two studies which Your Lordship will recall were referenced and incorporated into the affidavit and they are now attached to the main document and I did provide those studies to my friend. I'm not sure how long ago, but some time ago.
THE COURT: All right. So what are you proposing to do, Mr. Tousaw, other than tendering Dr. Pate to give me opinion evidence on matters that I didn't note in their entirety but I gather are not in issue, are you proposing to file something that looks to be about a quarter of an inch thick?
MR. TOUSAW: Yes. I'm proposing to file as the next exhibit in these proceedings the report of Dr. David Pate along with the attachments that I have suggested and then I plan to take Dr. Pate through the report expanding on certain of the topics contained therein for Your Lordship.
THE COURT: All right. Is there any objection, Mr. Eccles, to my receiving this bundle of documents
as an exhibit? MR. ECCLES: No, My Lord. THE COURT: All right. What's the next number, Mr.
Clerk? THE CLERK: That would be Exhibit 24, My Lord. THE COURT: All right. Exhibit 24 is a bundle of
documents that includes the affidavit of Dr. Pate I gather, his curriculum vitae and a list of materials that he has canvassed and two studies.
MR. TOUSAW: Two studies. THE COURT: All right.
Exhibit 24 (on voir dire): Package of documents including original affidavit of Dr. Pate, curriculum vitae, list of publications and two studies
MR. TOUSAW: And, My Lord, the top copy for the clerk's benefit is the signed sworn copy. The bottom copy is just a duplicate of that for Your Lordship. I can advise that it is -- other than a couple of typographical errors that my editors mind could not let go in the final to be filed version, it is identical to the material that I previously provided my friend and which we passed up on Friday.
THE COURT: And do you wish Dr. Pate to be able to give opinion evidence on those matters referred to paragraph 4 of the affidavit, is that it?
MR. TOUSAW: On the matters referred to in paragraph 4 of the affidavit and generally in the area of pharmaceutical chemistry as it relates to -- particularly as it says in paragraph 4, the medicinal aspects of phytocannabinoids and endocannabinoids, as well as some aspects of the botanical nature of the cannabis plant.
THE COURT: Dr. Pate, you've got Exhibit 24 in front of you?
A If this is it, yes, sir. THE COURT: Yes, and that's your affidavit sworn
apparently today and that attaches your curriculum vitae?
A Yes. THE COURT: I am satisfied having examined briefly the
curriculum vitae that David Pate is by reason of education, training and experience qualified to give opinions on I suppose matters in which he is
tendered, specifically the medicinal aspects of phytocannabinoids, that is cannabinoids produced in the cannabis plants, and endocannabinoids, that is cannabinoids endogenous to the human body, that he is qualified by education, training and experience to give opinion evidence on matters relating to pharmaceutical chemistry generally and as they relate to those matters I've just outlined. And finally, having a Masters degree in biology which I assume still incorporates botany, that Dr. Pate is by education, training and experience, qualified to give opinion evidence on matters of botany generally including the cannabis plant.
MR. TOUSAW: Thank you, My Lord. THE COURT: Mr. Tousaw? MR. TOUSAW: Thank you, My Lord.
EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW:
Q Dr. Pate, at paragraph 2 of Exhibit 24 you indicate that you hold two advanced degrees, a Masters of Science in biology and a Doctor of Philosophy in pharmaceutical chemistry. A few moments ago you perhaps heard me describe at least my understanding of what pharmaceutical chemistry is. Can you give His Lordship a bit of background in your training in both biology and pharmaceutical chemistry and what those terms mean to you?
A As a technical point, which one of these do I speak into?
THE COURT: Neither one of them is going to amplify, Dr. Pate. The important one is the one in your left hand because that is the one that's recording on the computer and if we don't pick that up, we all have to go home.
A Okay, thank you, My Lord. The -- the background -- the background I have in biology with a Masters degree emphasized botany and particularly the botany chemistry of cannabis and most specifically the role of the compounds produced by the plant in the life of the plant independent of any human interest. And basically it came down to these compounds being used as defensive compounds against what are called biotic and abiotic factors, meaning living challenges versus physical
challenges. The -- the biological challenges include insect predation, predation by other animals and I'm not sure to what depth I should go into that.
MR. TOUSAW: Q A general overview? A All right. And these compounds are useful
basically to defend a plant. Plants can't run away, so plants have to develop strategies metaphorically speaking to survive predation by primarily insects and they do this in this particular instance through the generation of resinous glands that are hard to chew through by insects who are large enough that that's a problem, and for smaller insects these glands are also sticky like flypaper and can entrap these creatures and thwart their -- their efforts towards feeding on the plant. This is a purely mechanic aspect. There are chemical aspects which involve repellency of the compounds, the terpenes for example which are fairly common throughout the plant kingdom, identical molecules that repel insects. Some of these are found in citrus like lemon. Some of the terpenes are called after those sources like lemony and there are other physical features. Some of the silicified non-glandular trichomes which are basically like thorns on a microscopic scale that inhibit chewing. These produce nothing of a chemical nature. They're just there as -- as mechanical impediments. You have to stop me?
Q Moving on to the -- the pharmaceutical chemistry, perhaps a general overview of that field of study and then your particular emphasis?
A Pharmaceutical chemistry could be defined in a short form as the design and manufacture of chemicals with [indiscernible] drugs in the broader sense. In my case I developed a class of compounds used for topical administration on the eye that were based on a then newly discovered molecule called anandamide. Anandamide is a -- what's now called an endocannabinoid. It's a fatty acid derivative that is produced by the body and is the ligand or how we say the key for the lock, which is the receptor on the nerve. It functions to regulate the -- in the brain in neural systems the -- the sensitivity of the
firing of the nerve much as a -- a game knob on a piece of electronic equipment would adjust the electronic sensitivity. It's one of the few systems that work presynaptically. I would have to explain that, but there are gaps between nerves. Normally there's a conductance down the nerve, but when it reaches the end of the nerve it reach -- there's a cleft between the next -- that nerve and the adjacent nerve called a synaptic cleft. The bridging of that gap is done chemically by packets of specific compounds that issue from the presynaptic nerve to the postsynaptic nerve. In other words it goes from one nerve to the other. The endocannabinoids are interesting in that they have a receptor on the presynaptic nerve and so there is the possibility of feedback from the postsynaptic nerve, that is the -- the receiving nerve, perhaps anthropomorphizing it to tell it when it's had enough. It's -- it's a -- basically a feedback mechanism for the receiving nerve to tell to the -- the sending nerve about its state.
And the obiter of this is the -- the ligand is anandamide and this was newly discovered at the time I was working on graduate school. And logically I thought well, if this is a natural cannabinoid in the body and cannabis has been well known and well documented to lower intraocular pressure, I thought well, maybe the natural cannabinoid had something to do with regulation of intraocular pressure. So to make several years of work short, it turned out to be so. Our experiments demonstrated that the application of a -- an anandamide analogue, not anandamide per se, was effective in lowering intraocular pressure. It also indicated that the site of action for control of glaucoma pressure or pressure -- intraocular pressure within situations generally and in specific cases involving glaucoma were localized to the eye itself and it wasn't a function of the brain's control of the eye pressure. These were new discoveries at that time. The reason that we couldn't use anandamide directly, the molecule anandamide, is that it was too labile. Anandamides are meant to be used momentarily and transiently and there's a well developed system for taking them apart in the
body. So if we put them in the eye they were metabolized too quickly to -- to -- to act in an appropriate manner for a pharmaceutical application. So what we did is developed a strategy -- developed and executed a chemical strategy for blocking that enzymatic activity as a factor of its -- of the structure of the molecule. Basically we put a little -- what you might call a blocking arm on part of the molecule so that the enzyme could not reach the vulnerable part of the molecule. And when we did that the applied anandamide analogue was retained long enough to actually have a pharmacological action.
Q And this was -- this work led to your dissertation in 1999?
A Mm-hmm. Yes, sir. Q I notice on your curriculum vitae which is Exhibit
A to Exhibit 24 in these proceedings that in 1981 through '83 you participate in something that you list as pharmacognosy?
A Mm-hmm. Q Have I said that correctly? A Yes. Q And then in parenthesis, "natural products
chemistry" -- A Yes. Q -- at the University of Mississippi. Could you
describe for His Lordship what -- what that is? A Pharmacognosy is the study of -- well, the literal
parse of the term implies knowledge of drugs, of pharmacognosis, but in -- in a -- in a more practical sense it's a study of plant derived drugs. Basically it was sort of the bridge from biology to chemistry in my history.
Q And are many pharmacological agents, pharmaceutical drugs derived from plants?
A Most drugs -- the vast majority of drugs in current pharmaceutical practice are either directly derived from plants or indirectly inspired by plants. For example, by analogy with my anandamide experience, sometimes a plant drug will be efficacious but have side effects that you want to eliminate, so you will take that drug as a model and start tinkering with it to -- to alter its properties, to maybe increase its potency or eliminate side effects. But basically the model is often a plant chemical.
Q You note that at paragraph 2 of Exhibit 24 that your professional emphasis currently is the study of cannabis products including cannabinoids and other constituent components of cannabis plant from a botanical and pharmaceutical perspective. Perhaps you could expand on that for His Lordship. What do you mean when you -- when you say that at paragraph 2 of Exhibit 24?
A The cannabinoids represent a fundamental new class of potential drug compounds. They are in my opinion as -- as potentially important as opiates or some of the other broad classes of -- of drugs and particular plant -- particularly plant drugs. They've been studied from a skewed perspective, particularly a forensic perspective, but not enough from a medical perspective in my opinion although that's changed in the last 20 years particularly with the discovery of the -- of anandamide and the receptor for anandamide. Before they didn't have a good model as to the action of cannabinoids in the human body and various theories were floating around. But the discovery of both the cannabinoid receptor -- endocannabinoid receptor and the ligand, the actual key to that lock, opened up the biochemistry of cannabinoids quite a bit and then it became viewed as a legitimate prospect for drug discovery and development. There's been quite a bit of progress made in that regard in the last few years based on that seminal discovery. My role was to take up that challenge and my immediate gratification involved was the development of a -- a series of drugs based on anandamide analogues which I eventually got a patent for and secondarily it was to explore the mechanisms of action for glaucoma. Well, let's say intraocular pressure regulation in glaucoma. It turns out that cannabinoids have much more efficacy in glaucoma than simply lowering intraocular pressure. In fact, it's begun to appear that glaucoma is less of an eye disease as much -- and perhaps more as could be described as a neurological disease. The -- the problem with glaucoma essentially is the stress and damage on the optic nerve which causes blindness and heightened intraocular pressure aids in that destruction, but the intraocular -- excuse me, the
intraocular pressure is not the destruction itself but the nerve degeneration. And it turns out that cannabinoids are surprisingly effective at supporting the nerve and preventing this degeneration. In addition to lowering intraocular pressure, most -- in fact, to my knowledge none of the currently prescribable drugs that lower intraocular pressure do anything for supporting nerve function or nerve survival so that cannabinoids not only in principle lower intraocular pressure, but they can have these other functions which are not available to most people now.
Q Let me take up a couple of terms that you mentioned in your responses thus far. The term "endocannabinoid", I take it, means cannabinoids that are produced inside the human body?
A Yes. Q And you talked about a cannabinoid receptor
system? A Mm-hmm. Q Can you describe for His Lordship what you mean
when you say that? A Well, on the surface of the cell are receptors.
These -- the usual analogy is the key and lock analogy and the -- when cells communicate with one another they do so by chemical means. And to send a signal, one part of the body sends a chemical messenger which is received at the target side by a receptor and that accutates whatever mechanism within that receptor, within that cell that the receptor resides upon and it's a means of communication. It's the means by which one part of the body knows what the next part of the body wants.
Q And -- and where are these cannabinoid receptors located in the human body?
A Well, there's -- there's -- it's a complex mix, but it breaks down to two sets of receptors. One is called the CB1 receptor and one is called the CB2 receptor and the CB1 receptor is primarily in the nervous system and the CB2 receptor is primarily in systems involved with immune function. Now, nothing in biology is ever that strict, so it's -- it's -- it's -- there's some crossover in both directions, but generally speaking that's true.
Q And so you'll have cannabinoid receptors in the brain?
A Yes. Q In the organs? A Some organs, but it's mainly in neuronal tissues.
It's in -- in the brain it has to do with sections that for example control movement. Fortuitously, it is not in sections of the brains that control breathing for example. Unfortunately there are opioid receptors in those areas of the brain and too much of an opioid can kill you simply by flooding those areas with those receptors indicating that you don't need to breathe, but those receptors don't occur -- I mean cannabinoid receptors don't occur in those areas so that you're in no danger of -- of dying from too much cannabinoid based on the mechanism of -- of breathing stoppage. Excuse me.
Q Do excess cannabinoid intake -- does -- does excess cannabinoid intake produce a risk of death in -- in other areas?
A Not that's never been discovered, no. In fact, it's probably -- it's probably the only drug that doesn't have that apparent property. I -- I can't guarantee that you couldn't somehow kill someone with a ridiculous amount of cannabinoid, but in common practice it would be hard enough -- hard to get physically enough cannabinoid in your bloodstream to -- to kill you, yes. There's never been a record that I know of, a -- a really valid record of anybody dying from any controlled or uncontrolled use of cannabinoid.
Q You mentioned that this area of research -- well, let -- let me back up a second. There's another class of cannabinoids that you mentioned called phytocannabinoids?
A Mm-hmm. Q And what are those? A Well, before the -- the discovery of
endocannabinoids the term just cannabinoids would be used and they -- they would be presumptively thought to be having something to do with the plant. However, with the discovery of endogenous cannabinoids, you began to differentiate, in fact even discover what a cannabinoid was. So with the term endocannabinoid being coined, I thought that it was obvious that you needed a complimentary
term, phytocannabinoid, to differentiate the two classes of drugs between the body -- bodily produced cannabinoids and the plant produced cannabinoids and that's caught on. People use that now commonly.
Q So phytocannabinoids describes the cannabinoids that are produced in the plant?
A Yes, exclusively. Q And exclusive to the cannabis plant? A Yes. Q When -- when did these discoveries of the
endocannabinoids, anandamide receptor system and indeed the -- the phytocannabinoids from the cannabis plant, when did these discoveries occur?
A Well, the phytocannabinoids were discovered in you could say -- in the '60s and maybe even in the '30s. They weren't called phytocannabinoids as I just mentioned. They were called cannabinoids because they assumed that that was it. The -- the terminology of phytocannabinoid happened after the publication of my dissertation in '99, but the first absolutely correct and clear definition of for example THC, which is the psychoactive ingredient, was in 1964 published then by Rafael Mechoulam and his colleague, Dr. Gaoni. And before then there was some early work by Roger Adams in the '30s on CBD and THC and analogues of that sort, but there had been a remarkable amount of progress in 30 years with chemical instrumentation between the '30s and the '60s and of course between then and now, which allowed for finer and more correct views of these molecules. But Roger Adams and his English competitor, Alexander Todd, Lord Todd, were probably the two very first cannabinoid explorers in the 1930's.
Q When was the CB1 receptor system identified? A That was done by Bill Devane in the lab of Allyn
Howlett in 19 -- I think it was in 1986, but in any case it was the later part of the -- the '80s and interestingly enough he ended up in the lab of the aforementioned Rafael Mechoulam who had first discovered the absolute correct configuration of THC. And he in -- Bill Devane in Rafael Mechoulam's lab did discover the ligand that is the key to that lock, so Bill Devane discovered both the key and the lock at different times in different labs. In my opinion, he's -- he, one of
these days, will be up for the Nobel for that discovery.
Q You mentioned earlier in your testimony that the -- this area of research into medicinal application of cannabinoids is -- is -- I think you used the word new. Is that be -- why -- why do you call it a new area of exploration?
A Well, it's -- it's an odd -- it's an odd quirk of history that cannabis has been used as a -- a medical plant for centuries in the modern area and even millennia. And on an ad hoc basis, you know, people wouldn't need to have some aspect of their physiology countered by some property that the plant provides by the -- the doctors of the day. And the use of cannabis is probably ten to 12 millennia old. It's probably -- it may be the first plant used medically. It -- at least 5,000 years medically and -- and at least in the utility of its fibre for ten to 12,000 years. So it -- it's -- it's an ancient, ancient plant that has had a domestic relationship with -- with humankind for -- past the point of recorded history. In more modern times, say in the last hundred years or -- or more, 200 years, it has been used in England and many other Western countries up until about the 1930's when it was -- and actually in Britain until maybe the early '50s when frankly I think political pressures came to bear to exclude it from the pharmacopeia which it had resided in for many decades before that point. And then it hit a -- a -- basically a -- dark ages where nothing was done. It was illegal. We don't want to know about it. Until the explosion of popular use in the '60s brought that issue back to the fore and that at first engendered exploration of the plant and the cannabinoids relative to forensic issues and -- and public health issues, but later as I mentioned with the discovery of the anandamide key and lock mechanism began to stimulate the exploration and development of possible medicinal applications to this class of compound and I was privy to one particular aspect of that.
Q You used the term "pharmacopeia" a moment ago. What do you mean when you say that?
A Well, there's a -- basically a big book that -- that contains all of the approved drugs that occur
in a particular country. The U.S. pharmacopeia is a -- a book the size of a dictionary or larger that lists the drugs and their characteristics, their indications, their country, indications -- dosage forms available, things of that sort. It -- it's basically a reference manual.
Q And -- and cannabis was as a plant part of this pharmacopeia you say until --
A Well, the plant itself was not, but the extracts were and usually pharmacists like things in bottles and so traditionally it was an extract of one sort or another, usually a whole extract.
Q You say at paragraph 7 of Exhibit 24 that the female cannabis plant produces flowers which in slang are referred to as buds which are themselves composed of varying parts and you go on to describe those parts. Could you -- could you describe for His Lordship firstly why is it the female plant you're concerned with and secondly what those components are?
A You mean botanical components? Q Yes?A Oh, okay. Well, at least consistent with the
thesis that cannabinoids have something to do with protection of the plant and also having to do with the assumption that of the two genders the female is the most valuable based on reproductive capabilities. Most of the cannabinoids seem to fall to the female plant and consistent with that the amounts of cannabinoids within the female plant seem to go up the closer you investigate towards the reproductive structures. In other words the large leaves have less cannabinoids in them than the parts immediate to the flowering structure in the seed. All of this is entirely consistent with the -- the thesis that it's a protective device and of course what you want to protect most and first is the reproductive capabilities and the -- and the seed itself.
Q And how does -- how does cannabis reproduce then, what's the mechanism that the buds or the flowers -- why is the reproduction occurring there?
A Well, cannabis is called a dioecious plant which means it has male and female flowers on separate plants and the male's role is just to grow up and shed pollen and the female's role is to catch it and this is done through a winded mechanism
normally, not necessarily a -- a insect mediated mechanism. And the -- there are long feathery like projections from the flower which are optimized for catching pollen in the wind and these are called the styles and they have stigmas attached to them, and a stigma is the actual landing point and growth point of the pollen into the -- into the flower. And the pollen tube goes down the style and into the ovary and the reproductive cells go into the ovary and a seed is formed.
MR. TOUSAW: My Lord, I have a photograph, what's a close-up photograph of essentially a female flower of a cannabis plant. I'm going to ask that that be marked as Exhibit 25 in these proceedings.
THE COURT: Exhibit 25. THE CLERK: Exhibit 25, My Lord.
Exhibit 25 (on voir dire): Colour photograph of close-up depicting female flower of cannabis plant
A You'll see on that from what I could catch -- MR. TOUSAW: Q We'll put it in front of you. A I see. Thank you. Shall I proceed or -- Q Yes. Exhibit 25 in these proceedings has been put
before you, Dr. Pate. I'll ask you to please describe what you see there?
A What you see in this picture is some -- a bit hard to differentiate because it's very crowded, but basically you can see those tendril like structures. Those are the styles that catch the pollen in the wind and they disappear into this massive green, but if you look carefully, particularly on the right centre somewhat lower in the picture, you'll see a pair of styles disappear into what looks like a little cuplike structure, okay? That's called the perigo [phonetic] bract or the bracteole. And that is actually a modified leaf that surrounds the flower which is interior to it, protecting it, and the -- the surface of that bracteole is, as you can see, covered with glands. And those glands, if you look elsewhere in the picture -- even there, but better elsewhere are -- they're -- these are stalked glands that are topped with a little
reservoir. Not only is it a reservoir, but at the bottom of the reservoir is the rosette of cells that form cannabinoids and they exude them into this reservoir which expands as a little apparent bead on the end of the stalk. It's -- it looks -- it looks analogous to a -- a golf ball on a golf fee to some degree. And -- and that's how these materials are through this -- through this mechanism the materials are both manufactured and stored.
MR. TOUSAW: My Lord, I'm going to pass up another photograph. This is a -- what's called a macro photograph, just a -- essentially a super close-up and I'd ask that be marked as Exhibit 26.
THE COURT: Exhibit 26. THE CLERK: 26.
EXHIBIT 26 (on voir dire): Macro colour photograph of close-up of leaf surface
A I presume this is mine? MR. TOUSAW: Q Yes. A Thanks. Q Dr. Pate, Exhibit 26 in these proceedings has been
put in front of you and I'm going to ask you if you recognize that?
A Yes, indeed, it's -- it's a nice photograph of a close-up of the -- the leaf surface with the trichomes apparent on the surface of the leaf in a very dense population. And in a -- a distribution of ages of these glands, the youngest being ones that look clear and the oldest being the ones that the reservoir seems to have a brown cast to it, and in between are various degrees of amber and yellow.
Q If you go back to Exhibit 25, there's a number of these shiny glandular looking objects. Is -- is that essentially what we're seeing in Exhibit 26 but very close-up?
A Yes. Q And these I understand are in their highest
concentration on the -- essentially the female flowers of the cannabis plant?
A Yes, and you can see how it may, assuming these things were sticky, discourage insect predation.
Lordship the various parts that we're -- that we're looking at in this photograph?
A This -- Q Yes? A Well, there's the rosette of cells at the base of
the plant -- the base of the reservoir are -- are too subtle to see in this photograph. What you -- but they -- they occur where the stalk of the trichome joins the reservoir. They're -- they're at the top of the trichome stalk tip or the bottom of the reservoir depending on your perspective.
Q And when you're using the term trichome, sorry to interrupt you, but when you're using the term trichome, what precisely are you referring to in Exhibit 26?
A Basically it's the glandular hair from the surface of the -- the -- the leaf on up.
Q Going back to your previous analogy, it's -- it's the -- the golf ball and the tee?
A Yes. Q And what else do we see here in Exhibit 26? A Surface of the leaf. I'm not sure -- there's a --
it's -- it's highly reflective which I don't know if that indicates water moisture or resin distribution on the surface of the leaf, but these -- these trichomes are not entirely stable. They -- the -- the reservoir will break off. Even the trichome will break off surface of the leaf and the reservoir will break off the tip of the trichome as well and it's not -- it's not unbelievable that this shininess is due to resin distribution on the surface of the leaf, but it could also be moisture as well.
Q And when you say -- A Or -- or waxes -- made of waxes on the surface of
the leaf. Q Are there waxes in the -- what you -- what you
called the golf ball, the round -- the round gland at the tip of the trichome?
A There may be, certainly hydrocarbons of various sorts. Whether they're waxes, per se, it's hard to say. Certainly in the plant kingdom waxes are very common on surface of leaves to inhibit transpiration of water which are restricted in normal circumstances as much as possible to the -- to the stoma of the leaf which are the little openings -- pores in the leaf that transpire
oxygen and carbon dioxide and water. Q And where are the -- where are the cannabinoids
stored? A Well, the cannabinoids are inside the -- if you'll
-- consistent with our analogy, inside the golf ball basically, inside the glandular reservoir where they're exuded by the rosette of cells at the bottom of the reservoir.
Q By exuded, you mean manufactured, created? A They're manufactured and transported into that
reservoir. They're manufactured within the rosette of cells and then actively dispersed into the reservoir.
Q Is there a -- you -- you mentioned some of the trichome heads have gone amber or various shades of darkness. Is there a -- is there a relationship between the colour and the cannabinoid content?
A There's a relationship between the colour and the cannabinoid content remaining in that the cannabinoids tend to polymerize and when they polymerize they acquire a colour, in this case a brown colour. Pure THC is clear, water clear, but if you were to take a little pipette and dip into a vial of it and wave it around for a few seconds, you would see it start to turn pink and eventually it would polymerize and turn dark, over a long period of time mind you, but the initial reaction is fairly quick.
Q The cannabinoids that are stored in the -- in the round resin gland at the top of the trichome, are they -- are they present in fixed ratios?
A It seems that the ratio of one cannabinoid to another is fixed genetically. The total amounts produced is influenced by both genetics and -- and environmental inputs, that is the percent by dry weight. This can be attributed possibly to the production within the gland, but it also often has to do with the ratios of morphological parts that occur during different parts of the development of the plant. For example, the highest populations of these trichomes are on these structures immediately adjacent to the flower, and so a younger plant, it's not going to have as much cannabinoid by dry weight of the plant as a mature plant which has the mature reproductive structures having the dense populations of these trichomes.
Q In terms of the contents of the glandular head of the trichome, you've talked about THC. That's a cannabinoid, correct?
A Yes. Q And that's present in the glandular head? A Yes. Q You mentioned something called CBD. What is that?A There -- there's a suite of cannabinoids within
the -- the resin. The -- depending on the strain, that is the bridal type, and the geographic providence of that -- of that type you can have a balance of various sorts between these two -- these several cannabinoids, primarily CBD, cannabidiol and THC, tetrahydrocannabinol. And this will probably be -- this -- except for perhaps the first few days or -- or even weeks of development, past a certain point these -- these ratios become fixed. The dominance of THC is primarily from plants genetically derived from tropical areas. The CBD is primarily from plants derived from high temperate areas, high latitude temperate areas. Plants in between those two interestingly enough have a varying balance of the two. Low temperate plants from places like Afghanistan or Pakistan or Nepal, while certainly not tropical have more THC than European plants and have more CBD than tropical, equatorial plants would have.
Q You mentioned a few moments ago a term "strains". What do you -- what do you mean when you say strains?
A Strains are varietal types like pink roses and red roses and white roses, that kind of thing. They're -- they're either land races that is selected by native populations for various characteristics or they're wild types which are very hard to find, if you can find them at all since this planet's had relationship with humankind for millennia. I should go back and mention that CBD -- if I may, CBD and THC are fairly closely related chemically and that they're so closely related that at one time they thought CBD was the biological precursor of THC because all it takes is one simple chemical reaction to make it into THC.
Q Did that turn out to be accurate? A No. No, it didn't. It was too good to be true.
Q You mentioned earlier that in your view the ratio between for example THC and CBD in a -- in a particular plant is -- is fixed?
A Mm-hmm.Q What do you mean when you say that? A That you will find a ratio of one to the other
consistently past perhaps the seedling stage throughout the plant's life regardless of the amounts, the absolute amounts, by dry weight within the plant.
Q So perhaps to put it in layman's terms just picking numbers, a particular plant may have ten times the amount of THC as CBD and that's going to be consistent in that plant throughout its life cycle?
A Yes, that should be true. Q And is that -- would that plant, that particular
as you say strain of cannabis, is that ratio going to be consistent between different strains? In other words strain A may be ten times THC to --
MR. ECCLES: I'm going to object, My Lord. I don't recall seeing -- maybe I've missed it, anywhere in Dr. Pate's report any indication that he was going to be invited to comment regarding advantages, disadvantages, strengths, weaknesses, one strain to the other. This is beyond the scope of the report I've received. If my friend's embarking on this, in my respectful submission he's straying beyond the range that he's given the Crown notice of.
THE COURT: I didn't gather that he was being asked to comment on the advantage of one strain to the other, just whether or not certain ratios might vary from one strain to the other.
MR. ECCLES: If that's the extent of it, then I have no objection, but if it's going to go further which seems to be the drift, then --
THE COURT: Well -- MR. ECCLES: -- if we drift there -- THE COURT: -- I think all he's been asked about so far
is whether the ratios might change from strain to strain. If he goes beyond that, you might have an objection to make, but --
MR. ECCLES: Certainly, My Lord. Thank you. MR. TOUSAW: Thank you, My Lord. A Basically the ratios seem to be indicative of the
high THC varieties with low CBD amounts seem to be from equatorial areas. High CBD amounts with low THC coexisting with it are high latitude, temperate varieties. And varieties from mid temperate areas lower -- lower temperate -- temp areas about say 30 degrees or so latitude tend to have about -- have a mixed ratio, perhaps equal amounts. So in summary, the amount of THC goes up towards the tropics and the amount of CBD goes down towards the tropics.
Q But other than THC, CBD and what you -- and what you I think described as a suite of other cannabinoids --
A Mm-hmm. Q -- found in the glandular trichome head, are there
other compounds found within that structure? A Yeah, there -- there are many, but the most
germane ones probably to insect predation was the classic compounds known as terpenes.
Q And what are terpenes? A Terpenes in a -- in a lay kind of description are
the aromatic components. You can have -- when -- when you peel an orange, for example, or -- or a lemon, you will have a characteristic smell and those are the smell of -- of the terpenes. One is even called limonene and it's a smell of -- of lemons. And that is not restricted to citrus. These -- these terpenes are almost universal, but -- but I mean there's -- there's -- there are terpenes called pinene for obvious reasons in terms of their piny smell and their occurrence in pine. Mints are well known to have those -- these compounds. And these are structurally identical to some of the ones in cannabis and in each case probably serves something of the same purpose in terms of insect repellency.
Q Other than the terpenes, the cannabinoids, I take it there are other compounds in the glandular trichome head, but do you find those to have some significance?
A I think the -- the -- the two described classes, cannabinoids and terpenes account for most of it. I mean I may be forgetting one thing or another, but -- but I should -- I should mention too that even with the main characters of THC, CBD primarily and secondarily maybe CBC or CBG, there are homologues involved. For example, the
molecules if you'd looked at a picture would have a five carbon tail off of these compounds. It's very characteristic, but sometimes they have three carbon tail and very rarely one carbon tail. So some strains have more of one type than another. For example, tetrahydracannabivarin, which is a mouthful, is the three carbon analogue of THC but it doesn't occur in all cannabis. Certain strains have a little bit of it, certain strains don't. And so this makes -- this combination of cannabinoids, cannabinoid homologues, terpenes and possibly other compound classes make for a lot of uniqueness within various strains. Its natural products are not made in a factory and they're not, you know, made to the single component specifications of a pill.
Q I'll take you back to Exhibit 25 which is the close-up, but not the very macro close-up --
A Mm-hmm. Q -- photograph. And before you look directly at
that I'll just ask you this question, are -- are cannabinoids and -- are cannabinoids found in other areas of the cannabis plant other than in the glandular trichome heads?
A Well, it's complicated. There are at least three classes of trichomes themselves.
Q Yes?A There's the large stalked ones that are the showy
ones that you see. There are some very short stalked ones that you may not see and there are some ones that exist almost as blisters on the surface of the leaf. And I mentioned this to indirectly preface the answer to your question because there may be some cannabinoid interior -- into the leaf, but that may be hard to differentiate between some of the subtler forms of the trichome.
Q Is it fair to say then the vast majority of the cannabinoids found in the cannabis plant are contained in the heads of the glandular trichomes as -- as photographed in Exhibit 26?
A Yes, yes. Q With respect to Exhibit -- you -- I'm sorry, you
mentioned earlier something called silicified non-glandular trichomes?
A Yes. Q Are those depicted anywhere in Exhibit 25 or 26?
A I don't -- in these particular photographs I don't see them, but they're common enough. In fact they're fairly large relative to the trichomes and they're found on the underside of most leaves.
Q And those do not contain cannabinoids? A No, not to my knowledge. Q Or terpenes? A No, there's -- purely mechanical defence like a
thorn and there's a couple classes of those as well. There's long ones and then there's the cystolithic trichomes, non-glandular trichomes which contain a little bit -- little crystal -- oxalic acid at their base which is perhaps unpalatable. It's -- it's speculative as to why it exists there, but the general thought is that all of these things are defensive strategies against insect predation or -- or even mammals.
MR. TOUSAW: My Lord, I note the time. THE COURT: All right. We'll take 15 minutes.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)(PROCEEDINGS RECONVENED)
DAVID PATE, recalled.
MR. TOUSAW: Thank you, My Lord.
EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING:
Q Dr. Pate, you say at paragraph 14 of Exhibit 24, your affidavit in these proceedings, that the medical effects of cannabinoids have been well documented and that there's no reasonable dispute in your opinion that these compounds are therapeutically active in humans. That's the first full sentence. In that paragraph are you referring to THC, paragraph 14?
A Yes. Q And do you also refer to CBD? A Yes. Q And focusing just specifically on THC without
providing a full list, but what are some of the medical effects of THC?
A Well, they -- they can range from -- they're fairly broad. They can -- and differentiated.
They can range from anti-inflammatory to anti-spasmodic to helping with movement disorders, event Tourette Syndrome which is ironically thought of as a -- a movement disorder I think, although this -- this verges into the medical and away from the pharmaceutical. The -- the two medically approved official uses for THC have to do with increasing appetite in those whose appetite are suppressed, specifically Aids patients, and to overcome chemotherapy nausea in patients who are undergoing the harsh rigours of -- of that treatment. These are approved in North America, the U.S. and Canada I believe, certainly the U.S., and that was done 25 or 30 years ago in the form of Marinol which is THC with -- incorporated with sesame oil and encapsulated as -- as a pill.
Q And THC is -- I think you described as -- is the psychoactive cannabinoid?
A Yes, it -- it has psychoactivity which depending on your intent can either be a primary effect or a side effect. The -- the term "side effect" is a term like -- no pun intended, like weed, where if it's -- in an agronomic sense of the term, weed has no meaning. It's more of a cultural term and that if the plant is in your garden and you don't want it there it's a weed. And if it's making you money, you probably don't consider it a weed. And so side effects are similar in that side effects are non-target effects that drugs have and if you're looking for one effect and you're getting other effects, you consider them side effects and a nuisance like you would a weed in your garden. And -- however, depending on the application, a side effect can suddenly be turned into a target effect depending on your intent.
Q And side effects are not necessarily just negative, is that correct?
A No, they're unintended. The -- the negative -- negativity and positivity is a value judgment based on your -- your goals.
Q CBD is a cannabinoid that is non-psychoactive, correct?
A That's correct. Q And CBD has some therapeutic utility, is that
Q And would it be fair to say that there's at least some evidence to support a suggestion that CBD has some anti-inflammatory properties?
A I would say so. Q And analgesic properties? A Primary anti-inflammatory. I think analgesic is
probably a little more attributable to THC because analgesia has a little more direct linkage with the brain and brain function and THC is psychoactive in that respect.
Q And fair to say that CBD may possess some antipsychotic activity?
A That is emerging as a -- a good possibility. There's been some studies in Brazil which show that -- that it is as effective as some of the established antipsychotic medicines with none of the rather significant side effects that these established medicines have. The -- the problem with CBD in that application and in other applications is that it's -- as I understand it's metabolized fairly quickly so the dosages tend to be fairly high, significant fractions of a gram, half gram, three-quarters of a gram, quarter gram, something in that range which people in the pharmaceutical business like smaller -- smaller doses if they can get it.
Q You also say at paragraph 14 of Exhibit 24 that terpenes may very well augment these effects. I think you're referring back to therapeutic effects --
A Mm-hmm. Q -- when you say that? A Yes. Q What do you mean by that? A Well, life -- life is complicated and the people
in the pharmaceutical industry would like one drug, one effect. And in herbal medicine you inevitably have multiple compounds and sometimes these compounds act in concert to modify the overall effect and the -- the terpenes -- well, frankly, in the earliest part of my involvement I thought terpenes were simply something that smelled nice. But it's becoming more apparent that the terpenes may actually have a role in the efficacy of the cannabinoids. This is cutting edge sort of area of -- of investigation. But what's -- what's intriguing with the thesis that
the terpenes may have synergistic or augmentative role is that with the endocannabinoids it's been shown that while anandamide and some of the few analogues of anandamide that are present in a body are efficacious in -- in altering the body's function, there are other compounds that are related to anandamide which have no apparent action in the body, that when added to the active ingredients can influence their efficacy in augmenting -- in -- in altering the -- the body's function. In other words anandamide could have an action at a certain level, but anandamide and these other bodily components which themselves are not active could accentuate that anandamide action. Now, if this is true, then it isn't that farfetched to imagine that the phytocannabinoids themselves having their own action may be influenced by terpenes, which themselves may or may not have their own independent action. Even more intriguing is the fact that cannabinoids are partially -- are partially terpenoid in their structure, so it's not as if the terpenes are completely foreign as a chemical entity to cannabinoids. Cannabinoids are molecularly partially terpenes.
Q This potential augmentation or entourage effect that you've described between cannabinoids and terpenoids, is that also true of the cannabinoids' relationships to each other?
A That's -- that's a possibility, but in the case of cannabinoids it may be a little more directly attributable to certain of the characteristics of each of the cannabinoids. Let me -- in -- in a specific sense, let me say that CBD for example inhibits certain liver enzymes that metabolize THC and so that if they're taken together may affect the course of CBD -- excuse me, correction, may affect the course of THC through inhibition of those enzymes that may degrade the THC. In other words there's a well established mechanism possible. You might call it an entourage effect, but the entourage effect is normally a -- a term that is invoked for a less well-defined mechanism of synergy. Okay. So if T -- if CBD affects the metabolism of THC and potentiates it or -- or depotentiates it, then that's not usually invoked under the term entourage effect.
Q Is there a term for that process or did you just use it?
A Cross reactivity might be one term, you know. I mean this -- when we talk about CBD and THC we're talking about mechanisms that are reasonably well differentiated and typical of many drugs. For example if you take -- this isn't the same mechanism per se, but if you take alcohol and then you take barbiturates, you're going to get an effect of the alcohol and of the barbiturates but you're also going to -- going to get a synergy. It's -- it's not an additive effect between the two. It's a multiplicative effect. It's an effect well outside the expective [sic] summation of the two effects, okay? So that's a completely different mechanism and a completely different example, but I draw upon it to show that this is not a unique phenomena.
Q You say at paragraph 15 of Exhibit 24 that cannabis has a number of phenotypes commonly referred to as strains and you go on to discuss breeding. Is this the process that you -- is this what you talked about earlier in that different strains of the plant will have different ratios of the cannabinoids within the glandular trichome?
A They'll have that as one characteristic. They'll have morphological differences. They'll have the -- the -- the number of leaflets, the width of the leaflets, the ratio of flowers to leaves, various other kinds of easily observable characteristics. Cannabinoids are probably the most difficult to -- to differentiate 'cause they're not apparent. You have to use chemical instrumentation to -- to figure that out. Terpenes ironically are more differentiable simply with your nose. Often you're able to tell a kind of a plant simply by sniffing it based on its smell characteristics. Does it smell more lemon like or pine like or in -- in some other kind of fashion? So even though these terpenes are there in a fairly small proportion by percent of dry weight, they're very abundant apparently to your nose because you have the proper receptors in your nose to -- to perceive them whereas the cannabinoids themselves have no smell whatsoever.
Q You go on to say in the last sentence of paragraph 15 that different strains are reputed to produce
differing effects on the patient depending on the individual and condition. Can you elaborate on that for His Lordship?
A Well, they -- people are all different in their metabolic outcomes. They -- they have, just as we all have two eyes, a nose and a mouth. We have an inferent [sic] variety of each of those that allow us to recognize individuals as to who they are by sight instantly. Metabolism is like that as well. There are certain functions that are fundamental that everybody has, assuming it's not a pathological condition, but there are many sub variations on metabolism that make people more or less susceptible to certain things. Now, just to make things more complex, plants themselves have various profiles of what they produce and how they produce them and the combination of the individual and their variability plus the plant and their variability make for a -- a -- a difference in what a particular strain will do for a particular person.
Q At paragraph 16 you describe a theory at least behind the reason for these differing effects and I'd just ask you to expand upon that for His Lordship?
A Well, discounting the variability in the individual for the moment, the amounts of certain cannabinoids, and terpenes for that matter, vary with the strain of the plant. Now, just to give a clear but simplified example, there -- the two major active ingredients in cannabis, one of them psychoactive, THC, and the other being CBD, occur in cannabis in varying ratios. If you're in the high temperate latitudes you're going to have -- if you're dealing with plants from the high temperate latitudes you're going to have plants with a lot of CBD and very little THC. If you're dealing with plants from the equatorial areas you're going to have plants with a lot of THC and very little CBD. And if you're sort of halfway in between that 90 degree arc you're going to have varying degrees of equality between those two. So in general, rule of the thumb, the amount of THC goes down from the pole to the equator and the amount of -- excuse me, the amount of THC goes up from the pole to the equator. The amount of CBD goes down from the pole to the equator.
Q Okay. At the beginning of your answer you said discounting the individual differentiations in -- in people. I -- I take it -- well, let me ask you this. We all as humans have CB1 receptors?
A Yes. Q Mm-hmm, yes. Q And we all have CB2 receptors? A Mm-hmm. Q And we all have endocannabinoids? A Mm-hmm. Q Is that -- A Yes, yes. Q You have to say yes. A Yes, sorry. Q But we have potentially different amounts of
endocannabinoids in our systems? A We have potentially different amounts of
endocannabinoids, potentially different amounts of receptors, potentially variations in distribution of these receptors. There's many other factors, including the fact that cannabinoids may work by non-receptor mechanisms as well.
Q Perhaps you could explain that for a moment? A Biology -- biological systems are complex systems,
very complex systems, and the favourite target for people in the pharmaceutical field are ligand receptor systems, that is key and lock mechanisms because they're well defined and they're manipulatable. Particularly the key can be molecularly altered to -- to fit or not fit. But that doesn't mean that there aren't other effects. For example, side effects could be the result of unwanted effects to -- to a receptor being activated or it could be something completely abstract and unknown because you're putting a factor into a complex system and where it's going to end up and how it's going to act is not particularly predictable beforehand.
Q You say at paragraph 17 of Exhibit 24 that in your opinion it's correct that various compounds can produce synergistic effects and that any one compound in isolation may not provide the full spectrum of medical benefits sought by the patient. Is this -- is this what you've been talking about in terms of colloquially different strokes for different folks?
work with single pointed molecules and receptors and those who work with herbal medicines. It's been described as the difference between a rifle and a shotgun and that one is more pinpoint and narrow, laser-like in its applicability, the other more broad and this has turned in some -- into something of a competition between the two schools. But in my opinion there's -- there are times when one is more applicable than the other based on what you're trying to achieve. In many cases the herbal medicines have factors due to their complexity which help to prevent for example overdosing because perhaps before you get to that point nausea would set in, whereas if you had somebody give you an injection of something you're along for the ride, whatever it -- it brings and you can die as a result of too much of that one thing. So there are different approaches and the single compound school which is predominant in a pharmaceutical industry doesn't like or trust the herbal approach because it -- well, they see it as historical, old-fashioned, hard to control, multifactorial, and they like it clean, simple and straight, which is well and good except that that approach has its own inherent limitations and drawbacks which they probably would be reticent to concede.
Q And what are some of those limitations and drawbacks?
A Well, I gave you an example like killing people. If you -- if you take a pharmaceutical approach with most drugs, there's a point at which people will die either because they're incompatible with the drug which is perhaps common between the two schools, but in particular because you can administer well controlled but not particularly regulable amounts of the drug relative to the patient's reaction. In other words if someone was in pain, there would be a normal dose of morphine you would give right off the bat to blunt that pain and let's say it's ten milligrams or 15 milligrams of morphine. And you would take it out of a bottle, put it in a syringe and inject it into the patient in hopes to temperate the pain that they're in. But that -- that patient could be hypersensitive to morphine and this is notwithstanding allergic reactions, but just very
sensitive to morphine and they could have serious consequences to that. They could stop breathing perhaps or inversely maybe they're, you know, for lack of a better word, more immune to morphine than -- than other patients and it doesn't have the pain relief in effect desired. But that notwithstanding, a natural product in the previous example may prevent you from taking too much because, one, the routes of indigestion of a natural product don't include things like injection. They include things only analogous to food intake or air intake like smoking or -- or -- or eating and those tend to be a slower means to administer a drug. And so in the case of natural products, often the fact that they're in with other drugs and other components mean that you get a bit of a warning as to -- like this is probably as far as we should go in terms of administering a drug. It's -- it's -- I guess for lack of a better phrase, it's -- it's a more forgiving kind of administration of a drug. It's not without its hazard, but it's not quite so hard and fast as a pharmaceutical preparation.
Q The concepts that you've described, the synergistic effects between various compounds, an entourage effect between various compounds, are these -- are these principles unique to cannabis or are they a broader application?
A Well, the example is unique to cannabis, but the -- the general thesis is that often the shotgun approach as I had made the analogy earlier allows for a broader effect and that the sum of each individual component is not necessarily -- does not necessarily add up to what the effect achieved by their combination does effect. Sometimes this is -- it's usual to parse out for example with opium. You can parse out codeine. You can parse out morphine and various other opioids. And each of those have their -- their uses, but it's not necessarily the effect of all of them together within a natural product. Sometimes that's good and sometimes that's not so good. It -- it -- it's hard to make generalizations that fit all cases. You really have to take specific instances. In -- in the case of opioids, codeine prevents coughing and is minimally addictive relative to morphine, so it's good to parse out
that particular ingredient and it's also easier to administer than say a natural product component like opium. But in some cases, for example when you have severe diarrhea, opium compounds known as paregoric which is basically a -- a alcoholic tincture of opium, is still used today to quell intestinal motility which -- it's not just a source of an embarrassment. In some cases it can actually be life threatening in terms of losing water to the extent that you become dehydrated and die.
Q I'll refer you back to Exhibit 26 which is the -- I believe the very close-up photograph of the trichomes and commencing at paragraph 19 and for several paragraphs thereafter in your expert report you -- you describe a process of isolating those glandular trichomes and/or isolating the compounds contained in those glandular trichomes. What would be the purpose of doing that?
A From a -- the -- the broadest and shortest answer to the question is simply concentration. What you're trying to take is the source of the actives and leave as much of what's called the ballast material away. There's not much in the way of immediate medicinal pharmaceutical properties to cellulose, to chlorophyll, to any of the other debris that may be on the plant so that if you can discard that through the process of selection of where the materials -- active materials actually reside, then it's of some advantage in some cases.
Q You talk at paragraph 20 of Exhibit 24 about methods of isolating the glandular trichomes and you speak of using a -- a screen, a micropore screen. You speak of immersion in water. Can you describe for His Lordship a bit more about how those processes work?
A I would -- I would say that they fall under two broad categories, maybe three. One is simple mechanical isolation. The reservoirs are fixed to the trichome stalk and the stalk affixed to the leaf in a insecure manner and -- but that might be functional from a insect predation standpoint, but that notwithstanding the fact is that these are easily separable. And so the purely mechanical means of separation allows a great deal of the ballast to be left behind. Ballast, I'm speaking of cellulose and chlorophyll and inactive bulk.
Then there is the extraction process where you take a solvent and evacuate the reservoir of its resin contact through a chemical means and that is a -- a means to isolate and concentrate resin as well. The -- there are sort of hybrid approaches where you simply sort of smash the glass in a -- in a mechanical way and the resin squeezes out and you collect it. That's sort of maybe a hybrid in between those two -- two extreme techniques.
MR. TOUSAW: Now -- pass up another photograph, My Lord, simply a -- yet another close-up. I'd ask that that be marked as Exhibit 27, I believe.
THE CLERK: 27. THE COURT: 27.
EXHIBIT 27 (on voir dire): Macro photograph depicting isolated trichomes
THE COURT: Which way is up? MR. TOUSAW: I don't know that it matters, My Lord.
Perhaps we can -- I'll put a -- so we're all on the same page I'll put a --
A That looks good.MR. TOUSAW: Yes, so there's -- maybe put a mark on
each of these and I'll -- then it'll be in the same direction that my friend is holding it. I've drawn an arrow, My Lord, on Exhibit 27 to -- so we're all looking at it in its proper orientation.
Q Exhibit 27 has been placed in front of you, Dr. Pate. I'm wondering if you could describe what it is that you're seeing there in that photograph?
A Well, without any hints otherwise, it looks like a mass of isolated trichomes.
Q And this mass of trichomes appears to not have some of the other materials that were depicted in Exhibits 26 and Exhibit 25, and it appears to be just the -- what you called the golf balls at one point, the -- the heads. Is that a fair description of what you're seeing in Exhibit 27?
A Mostly, yes, that seems to be the case. Q I notice that the -- I won't say the bottom left
corner, but towards the centre left and -- and down just about an inch there appears to be something that looks a little different. It's like a little white --
A Yeah, yeah. Q What -- what would that be, if you know? It
doesn't appear -- let me ask a better question. Is that a glandular trichome head?
A Oh, no. It's -- it's -- it seems to be -- it's possibly a stalk, possibly a leaf hair, possibly a fragment of the -- the style. It's hard to say.
Q Fair to say that this Exhibit 27 depicts essentially the -- the resin glands containing the therapeutically active compounds in cannabis?
A Yes, yes. Q And this is the product that one can end up with
at the end of the process of extraction by either dry extraction through a screen or water extraction with ice water and then through a screen, is that correct?
A Yes. A purely mechanical process of that sort would give you a -- a product that would be identifiable as -- as a -- still a gland or still a reservoir as opposed to an extraction which would simply give you a tar.
Q And the -- the mechanism that you described of mechanically smashing the glandular trichomes, that would result in something different than what you see in Exhibit 27?
A It would -- again, it's a hybrid process so it would give you a hybrid result. You would probably see a lot of tar with fragments in there, some of which were smashed, some of which may not be.
Q It is possible to -- let me back up. The -- the -- the active compounds, the cannabinoids contained in the glandular trichome heads are fat soluble, is that correct?
A Yes. Q They're alcohol soluble? A Yes. Q And at -- at paragraph 21 of your report, Exhibit
24 in these proceedings, you describe a process by which you can extract the resin within the glandular trichomes by soaking the whole plant matter in fat and you say typically food-grade oils or butter?
A Mm-hmm.Q You understand that to be a method by which one
can extract the therapeutic compounds? A Yes, it's -- it's -- it can be done in a -- in a
differentiated fashion by that process or it can be done in situ by some baking or -- or -- or food preparation procedure.
Q What do you mean when you use the term, "in situ"? A Within the context of what you're doing it occurs,
although it's not a discreet step. In other words you -- you put the trichomes in with some cookie mix which contains butter and mix it all together. You're going to have something of that action happen, although it's not perhaps as efficient as if you intentionally sit down and carefully extract the -- the materials into butter as a separate discreet step.
Q So if you for example were to take some dried marihuana buds, the female flowers, and just grind them up into a powder and pour that into say a -- a cookie mix with some butter in it?
A Yes. Q An extraction process takes place? A Yes. Q And is that what you're describing when you say in
situ? A Yeah, it -- it's within the context of the
situation, although you don't need to necessarily grind up the flowers, but -- yeah.
Q And the resin, is that extracted just by virtue of it coming into contact with the oils?
A Correct. Q That process results in plant matter being in the
final product, right? A Yes. Q Whereas you can, as you describe it at paragraph
21, I take it you can take the dried plant matter, soak it in the oil or the butter, whatever the case may be and perform the extraction first, is that correct?
A Yeah, you could, and then strain it in some fashion.
Q You also discuss at paragraph 21 the possibility of using petrochemical solvents to extract the resin?
A Hmm. Q That's another method of essentially separating
the -- the resin from the remainder of the plant material?
A Yeah, it -- it -- it evacuates the -- the trichome reservoir of its resin -- of the resin contained
within it and you can isolate that. The difference in -- in that case is that the petroleum products are volatile enough that with a little bit of chemical manipulation you can eliminate the solvent and end up with the pure resin. Whereas if you're using a cooking oil, it's very heavy and you're never going to, within practical limits, be able to get rid of the mix of resin in -- in the cooking oil.
Q You're going to have to use the oil itself? A Yes, yes. Q And these extraction processes that you've
described extract cannabinoids? A Yes. Q And do they also extract terpenes? A They should because the chemical properties are
similar. Q I'm going to ask that -- well, let me -- let me
back up a step and just ask you this question. Are you familiar with the term decarboxylization?
A Decarboxylation, yes. Q And what does that term mean? A Well, interestingly, the cannabinoids that are
immediately active for at least -- let me emphasize the THC compound which is psychoactive is actually an artefact of a natural product which has been heated. This natural product is the carboxylic acid form of THC. It has a carboxylic acid group which is a carbon and two oxygens and a hydrogen in a typical configuration. And when you heat this natural product the carboxylic acid group goes away as CO2 and water and gives you what we normally think of as THC. And this happens, again if I can use the term in situ with -- with a smoking process. The carboxylic acid form is more hydrogen bonded to each other, more molecule to each other so it's not as volatile, but when it's decarboxylated it becomes more volatile and the super heated air from the heated ember of a -- of a -- of a joint or a cigarette volatizes it into the smoke stream.
Q And so I take it is the -- is the -- is the term for the acid form of THC THCA, is that how it's commonly referred to?
A Well, there's -- there's a THCA which is almost entirely what's found and there's also possibly THCB, but it's with the carboxylic acid group in a
slightly different position, but it's like 99.9 to one ratio of one to the other.
Q This THCA, is that standing alone a -- a psychoactive compound?
A Based on receptor studies probably not, but whether it would be partially decarboxylated by the digestive processes, that's another question. Certainly in the smoking process it's immediately decarboxylated by the heat. You have a heat of the ember in a 600 maybe or even 800 degree Celsius range which superheats air that passes through it and so everything downstream from that -- immediately downstream from the ember is -- is well cooked and decarboxylated and -- and liberated to -- to volatize into the smoke stream.
MR. TOUSAW: My Lord, I -- I note the time. It's a bit early. My next line of questioning involves these exhibits, in particular one of the exhibits that's already been introduced and I -- I don't think I can get through it in the six or seven --
THE COURT: All right. MR. TOUSAW: -- minutes remaining. THE COURT: We'll take the lunch break. Two o'clock.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR NOON RECESS)(PROCEEDINGS RECONVENED)
DAVID PATE, recalled, warned.
MR. TOUSAW: Thank you, My Lord. I'm going to ask that Exhibit 18 titled, "Cannabis Buyers' Club of Canada Medicinal Cannabis Recipe Booklet" be placed in front of Dr. Pate, please?
EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING:
Q Dr. Pate, Exhibit 18 in these proceedings has been put in front of you and I'm going to ask you, sir, if you would, to turn to page 2 of Exhibit 18? Sorry, let's -- let's say page 3 of Exhibit 18. About halfway down the page there is in boldface, "decarboxylation" --
A Yes. Q I'd like to ask you to read those three paragraphs
in -- under that heading and I'm going to ask you if that -- those three paragraphs describe essentially the process of decarboxylation that you previously described to His Lordship?
A This will take a moment. Okay. Could you repeat the question, please?
Q Yes. Is that the -- at least in principle, is that the same as the decarboxylization -- decarboxylation process you described earlier?
A This is a method to enact that. I mean the -- what I described was a molecular phenomenon and this is a method for achieving it.
Q It is the case as it says on page 3 in that section that using heat converts the -- what you call the carbolic acids --
A The carboxylic acid, yes. Q Carboxylic acids, thank you. A Yeah. Q And I'll ask you to turn to the next page, please,
page 4 of Exhibit 18? A Okay. Q And there's another heading called, "Infusing
Cannabis" and I'll ask you to please read those four paragraphs?
A Okay, one moment. Okay. That seems to be a -- what you might call a wet method versus the other being a dry method to in -- in -- activate the materials, that is decarboxylate.
Q So the heating process described in infusing cannabis and particularly at paragraph 3 of that section beginning with, "Heat oil to medium", that itself is a process that will decarboxylate?
A If the oil is sufficiently hot and the materials added to the sufficiently hot oil, the material should both extract and decarboxylate.
Q And will -- will this process described in -- on page 4 on the infusing cannabis section, will this result in the extraction of the therapeutic compounds into the oil --
A Yes. Q -- as we discussed before lunch? A Yes. Q The remainder of Exhibit 18 is a series of recipes
for various baked goods and that's through page 10. I take it that once you have the therapeutic
compounds in the oil you could essentially replace that oil in any number of recipes and it will be therapeutically active?
A Well, the oil itself is therapeutically active and it also doubles as an ingredient in whatever you're making, so yes.
Q It is the case that you could simply ingest the oil directly?
A Yes. Q And I'll ask you to turn to page 10 of Exhibit 18.
At the bottom of the page there's a underlined word, "Ryanol". I'll ask you read that section?
A Okay. Okay. Oh, it goes on -- on the next page. Q Yes. A Okay. Basically they're just taking some
cannabinoid infused oil and distributing it among capsules for easy handling and subsequent ingestion.
Q And those capsules, assuming the oil contains the cannabinoids, are going to be therapeutically active?
A Yes. They remind one of Marinol to some degree which is a THC product in -- in sesame oil.
Q I'll ask you to turn to page 14, the last paragraph commencing with the underlined word, "Cannoil"?
A Do you want me to read that as well? Q Yes, please? A Okay. Okay. Q This is, I take it, again just an infused oil that
would be therapeutically active? A Yes, it's virtually identical to the first case
except for the choice of oils I presume. Q And is there any particular differentiation in
terms of choice of oil? A I would say that it's good to have an oil that is
not too -- what's normally termed polyunsaturated because polyunsaturated oils tend to get stale. Saturated oils are more stable, although they're in bulk worse for you for health reasons.
Q But other than that, grape seed oil, olive oil are all capable of being infused with cannabinoids?
A Oh, they're capable. I would -- if I had to pick I'd probably pick something like olive oil. It's -- it's what they call monounsaturated and so it's -- it's sort of a compromise between highly unsaturated and highly saturated. It's kind of
the best of both worlds. Q I'll ask you to turn to page 15 of Exhibit 18,
please, and under the boldface and underlined heading, "Topical Cannabis", I'll ask you to read those two paragraphs?
A Okay, one moment. Okay. Q The second -- sorry, the third sentence of the
second paragraph that you've just read beginning with, "It makes good sense" --
A Yes. Q -- and the sentence reading, "It makes good sense
to apply a medicine directly to the site of need whenever possible", do you agree with that statement?
A Yes, the -- a general principle is that you want to target the site of action to optimize the ratio of intended effects to unintended effects. In other words if you can get the job done with a local application at the site where it's needed, then you don't have to have a large systemic dose in the -- in the whole body where it's not necessarily useful and maybe cause side effects.
Q Is that a principle that is specific to cannabis or does it have general applications?
A No, it's -- it's a general pharmacological principle.
Q Are there examples of other pharmaceutical products in which this principle is applicable?
A I would say most pharmaceutical products in the broader sense are utilized within a range of routes of administration in which they -- their -- a usefulness is found. In other words because of chemical or pharmacological properties, some routes of administrations are not applicable for some drugs, but most drugs are exploited through multiple routes of administration to -- to -- to maximize their utility in specific cases. For example, if you have a -- for anti -- antibiotics, for example, you can have intravenous drip for someone who's really terribly ill and about to die of some sort of blood infection. You could have antibiotics in a skin cream to apply to a localized lesion that's infected. You could take oral antibiotics if you want systemic dosing where you either want to clean out the gastrointestinal tract which either is a desired or undesired effect, but it will have a systemic blood -- these
levels of compounds will be elevated in the -- in the bloodstream for delivery to perhaps inaccessible sites internally, an -- an infection of an -- specific organ for example.
Q With respect to -- I'll just take your attention back to page 4 of Exhibit 18 under the topic of infusing cannabis. From a -- it describes a process by which oil is infused and then the leaf essentially strained out, do you see that at the third paragraph?
A Yes, through a cheesecloth. Q From a therapeutic perspective, is there any
benefit to straining out the leaf matter or the corollary being is there any detriment to leaving the plant matter within the finished product?
A Well, the general principle is I think if it's not necessary to be there for the action to take place and it's a possible detriment, then why leave it in? In the case of cannabis, certainly we eat cellulose every day in our vegetables, so that's not so much of the problem unless you're on a restricted diet which that is a problem. But some of those silicified trichomes that we talked about earlier are indigestible and they are -- they scrape possibly and might act as an irritant to the gut, especially if you have a raw gut with IBS or Crohn's disease. So it's plausible that getting rid of it let's say is a -- will do no harm and maybe -- may be beneficial in certain cases.
Q When you say IBS, what are you referring to? A Inflammatory bowel disease which is possibly an
inherited predisposition, but it manifests as anywhere from mild irritation of the gut inducing hypermotility and all the way to really severe, perhaps autoimmune mediated diseases like Crohn's disease where there's ulceration -- lesions and ulcerations of the gut and possible infections and even death in -- in certain respects, but it's a miserable syndrome to suffer from and people occasionally have portions of their gut resected, that is cut out and joined -- the ends joined together in -- in very bad cases. So it's a -- it's a serious -- considered a serious disease in -- in its worst manifestation.
Q I'll ask you to turn to your -- we're not going to need Exhibit 18 any further at this time. I'll
ask you to turn to your expert report in these proceedings. It's been marked as Exhibit 24, I believe. And in particular I'll take you to paragraph 24 and in that paragraph you discuss the plant matter -- the cannabis plant matter not being a desired therapeutic component except as a vehicle for carrying the resin. What do you mean when you say that in paragraph 24?
A Well, there's nothing particularly therapeutic about cellulose or chlorophyll in most contexts and it's -- the fact is it's just the -- the active ingredients are found within structures that grow out of the leaf and so that's the given. That's the premise from which you operate. And in -- in the case of smoking, most of the fuel component of the pyrolysis comes from burning the cellulose. That produces heat from the ember which superheats the air drawn through the ember and essentially distills the -- both decarboxylates and distills the cannabinoids out the -- the downstream end.
Q With respect to cannabis ingested edibly in the form of baked goods made with these infused oils, I take it there's no need for the plant matter to act as this fuel for pyrolysis?
A Well, there's no pyrolysis, no. It's -- it's just -- it's there and it's either left there out of inertia or it's dealt with in some fashion to separate.
Q You say at paragraph 25 of Exhibit 24 -- you describe essentially harmful or unwanted compounds in the plant matter. Can you describe for His Lordship what those are and why they might be in the plant matter?
A This could be a broad range of things. I've -- I've mentioned a few examples. They can be circumstantial to cultivation. They could be -- most of them are. There are bits and pieces that are on plants because they're in open air conditions. They're not a laboratory artefact. They're -- they're a agronomic artefact and you get whatever is out there in the big wide world, insects of various sorts, some of them tiny and stuck to -- to the leaf. Sometimes they're -- the plant absorbs various things. Heavy metals can be absorbed by cannabis. Yeah, pesticides, moulds -- moulds are a significant inhabitant of most plants
and they particularly like the leaf. There's nothing particularly attractive but the trichome from a mould's perspective, in fact it may be repellant, but the leaf is where the nutrients are in the living specimen and so it would naturally be biased towards the -- what I'm calling the leaf. You know, the trichomes themselves are part of the leaf as well, but we'll -- we'll leave that aside for the moment. And I think one of the significant things are the silicified trichomes again that are -- reside on the surface on the leaf and may be irritant to oral ingestion. Of course they're not relevant to smoked -- the smoke situation.
Q And you discuss the silicified non-glandular trichomes at paragraph 27 of Exhibit 24, is that correct?
A Yeah, I -- maybe I'm jumping ahead, but yeah, that's basically a commentary on that paragraph.
Q At paragraph 28 you indicate that the -- the glandular trichomes themselves are not therapeutic other than the fact that they -- they carry the resin material inside that we've seen in the photographs?
A Yes. Q Is that -- A Basically they're the manufacture and storage site
of the resin, the -- the little golf ball on the tee. At the base is the manufacturing site where the golf ball sits on the tee, right, and then the ballooning out of the trichome is indicative of -- of an expanded reservoir of materials that that rosette of cells is manufactured and stored in within that reservoir.
Q Are the glandular trichomes divorced from the resin, the compounds in the resin inside of them, do they pose some of the same negatives if ingested that you've described and attributed to plant matter?
A I would -- I would say much less so. I would say that, you know, it's a question of degree and getting rid of the leaf is getting rid of 90 percent of the bulk or more. And then getting rid of the trichome reservoir from the resin is maybe another percent or two, you know, so it's a -- a point of diminishing returns. I mean if you wanted to, you could then take the resin and
isolate THC from that and then that would be even less bulk, but at every step there's a point of diminishing returns.
Q And if you isolated simply the THC you would, I take it, no longer have the CBD or the terpenes or the other --
A Yeah. Q -- therapeutic compounds -- A Yeah.Q -- is that right? A Yes, that's true, by definition. Q At -- at paragraph 29 of Exhibit 24 you discuss a
series of four modes of ingesting the active compounds of cannabis?
A Mm-hmm, yes. Q And at -- perhaps you can describe those four
methods for His Lordship? A Well, basically you're trying to get the molecule
into the bloodstream and so how do you do it? Well, the easiest, the least painful and most natural ways to do it are through the available openings in the body. The -- inhaling smoke was an invention of new world natives many hundreds of years ago and discovered by the Europeans when they came over and it's a way to get the molecules from the plant into the bloodstream in a way that is very rapid and very efficient. And it's probably a close second to intravenous administration which is the absolute quickest way to get something into the bloodstream as you might expect, but pulmonary administration is -- is very efficient at -- at that because there's a huge surface area to the lungs and it's intimately perfused with capillaries, basically trying to optimize transfer of oxygen from the air to your system and that's -- that's of great advantage when you're trying to introduce drugs as well. Oral administration, that's easy enough. That's analogous to eating and it goes through the same usual route and ends up in the same place at the end of the day and it has certain advantages as well. I'm not sure if you want -- you know, how deeply you want me to go into all of this, but --
Q I'm going to ask you to describe the processes and then I'll ask you --
A Okay, all right. Q -- some further questions about the benefits and
[indiscernible/voice trails off]? A And in some ways it could be argue -- argued that
oral ingestion is probably the most natural way to -- to ingest a medicine because it's analogous to eating. Topicals, topicals can be handy for -- let's see. Yeah, topicals can be handy for rubbing on affected areas in the -- on the skin, either to apply to a lesion on the skin or to introduce these materials through the skin possibly to an underlying tissue, maybe even systemically but usually in a more localized way because otherwise you could use the previous two routes of administration to -- for a systemic application. The transmucosal is kind of an interesting variant on topical in that the mucosa of the body, particularly the cheek, under the tongue, even rectally, is highly profused with blood, is thin and permeable, more so than the cornified layers of the skin would be and so that you get a faster acting effect and it's almost like oral, but it doesn't really go the whole route through the GI system, at least theoretically. In practice, some of it does.
Q And by GI you mean gastrointestinal -- A Gastrointestinal, sorry. Q At -- at paragraph 30, 31, 32, really through 34,
you discuss various pros and cons of oral ingestion or topical administration versus inhalation. Before I specifically take you to that, I -- I take it for cannabis, therapeutic application of cannabis, it can be and is used in the -- in the four methods you just described being oral, topical, transmucosal and via inhalation. Cannabis is --
A Oh. Q -- ingested in those four ways? A Yes, it can be, and so can many other drugs. Q You've anticipated my question -- A Oh, sorry. Q -- which was is that unique to cannabis based
medicine? A No. No, these are general principles of drugs and
even plant based drugs. Plant -- whole plant drugs, whole herbal drugs are restricted in some ways because they're solids. You can't do much more than smoke them or eat them, but if you can extract them, then you have more latitude as to
how you can apply things. Q With respect to the benefits -- the pros and cons
-- A Mm-hmm. Q -- of oral ingestion or topical vis-à-vis
inhalation, perhaps you can describe for His Lordship what you're -- what you're referring to paragraphs 30 through 34 when you make those comparisons?
A Ah, I'd almost have to read this all over again, but --
Q Well, if you need to that, please do? A Generally -- THE COURT: Did you ask him if there's anything beyond
what we can all read from 30 to 34? I mean there's not much point in him repeating what he's already sworn to in the affidavit, is there?
MR. TOUSAW: Yes, I -- I take Your Lordship's point and I think that's -- that's a fair point. I was just --
Q Is there anything you want to add to what you've said in paragraphs 30 through 34 --
A The -- Q -- about the various pros and cons? A I -- I think the -- the only point is more one of
summation that each route of administration has advantages and disadvantages and appropriate and inappropriate applications. And this isn't particular to cannabis. It is applicable to cannabis, but it's -- but it's -- it's a general principle in the broader sense of drug delivery for any medicine.
Q Earlier this morning you talked about your own work with glaucoma or intraocular eye pressure resulting from glaucoma?
A It's actually the other way around. Q Glaucoma resulting from intraocular eye pressure,
lower intraocular eye pressure? A It's a chicken and egg thing. Q I'm not sure if I'm at the chicken or the egg, but
perhaps could you provide His Lordship with -- with a concrete example of the differences -- for example in the treatment of intraocular eye pressure between inhalation versus oral ingestion of cannabis -- cannabinoids?
A Well, one characteristic of pulmonary administration is a sharp spike in blood levels of
the cannabinoids. They -- they rise quickly in the bloodstream and they fall off fairly quickly. They have a short plateau and a quick diminution. That is more applicable to a malady of similar character, one of short duration, and usually perhaps acute onset where you need quick relief. Glaucoma however is a life-long chronic condition and so treating it by smoking it is basically you end up smoking like a chimney every -- every hour or two or three depending on the circumstance with trying to maintain a plateau through a series of spikes. And you can do it and a lot of people do and have -- have treated their -- their glaucoma in that fashion, but it seems more natural -- a more natural fit of therapy to a malady to pick a route of administration that's going to establish the blood levels and then maintain them for a period of time so that the dosing is more infrequent. Oral seems to fit that -- that bill. And so you have a slow spike, a slow rise which is not so relevant for a chronic disease, but a long plateau which is much more relevant. In the case of glaucoma you don't stop having glaucoma when you go to sleep and so if you want to maintain those levels overnight of -- of cannabinoids, then it's best to eat something just before you go to bed. Even if you smoke something just before you go to bed, you'd be good for a couple of hours but that's only a quarter of your normal sleep pattern. So if you eat something, you'd probably be good for most of that eight hours.
Q Would a similar logical process be applicable for chronic pain for example?
A Yes. Here it's interesting because pain can be a lot of different things. If you're having pain on a constant basis, then constant applications are applicable analogous to glaucoma. Sometimes you have a chronic pain condition, but you have what's called breakthrough pain where you have a particularly intense episode on top of the plateau that you already have and then you may want to -- because it's sudden or of brief duration you may want to smoke as well to -- to -- to address that particular breakthrough pain. So, you know, it could go either way. But if you had -- the general rule is, if you have a chronic condition you want chronic administration of a drug that
ameliorates it. You know, if -- if you have an acute condition you want analogously an acute administration of a drug. For example, if you have a condition like migraine and it's going to come on quickly but it's not going to last you all day, then maybe you want something that's smoked because -- or at least inhaled in some fashion because you want application of that drug right then, because if you can -- if you can thwart the initial syndromes that you may be sensitive to before you actually get the migraine, you may be able to blunt the course of that -- of that phenomena. But maybe the migraine duration is an hour or two, so you don't necessarily want to be dosed all day just because you had an episode that morning. So you tailor the drug administration to the requirements of the malady you're trying to treat.
Q Would the same sort of reasoning attach to a certain pro-inflammatory chronic condition such as arthritis?
A Well, again just like chronic pain in other ways arthritis can flare and fade. In many cases it's a chronic condition where you have a baseline pain sometimes based on the amount of joint movement you're making and yeah, it would be good to have a long-lasting application of a drug. Sometimes it's topical, sometimes maybe oral depending -- if you -- if it's localized, like to a wrist or an elbow or something only if you're lucky enough to have just one particular site, then topical may be more relevant. If it's in most of your joints, then maybe a systemic approach is applicable. And if it's a problem all the time, well, you want to have an application of anti-inflammatory all the time, you know, and -- and sometimes, like breakthrough pain, sometimes you'll have a particular bout that you want to maybe have an additive application. Just because you're applying a drug in a particular way doesn't mean you can't additionally apply a drug in a different way for cause.
Q So we've heard some testimony in these proceedings that -- and I'll ask you just to assume that it's the case that some persons are obtaining edible cannabis, cookies --
Q -- and essentially using the edible cannabis to achieve a certain therapeutic effect which allows them to gain more efficacy from smaller quantities of smoked cannabis?
A Yes. Q Does that make pharmacological sense to you? A Yeah, you're -- you're establishing a baseline
level and if that's sufficient, so be it. But if not, a much smaller amount through smoking can push those blood levels in a transient acute sense -- a quick onset and -- and short diminution back to the levels -- back to the plateau provided by the oral ingestion. In other words it's a peak on top of an already established plateau, but it's more transient in nature.
Q You say in paragraph 37 of Exhibit 24, the last sentence, "An added benefit is the elimination of psychoactive side effects", and in this paragraph you're talking about topical administration?
A We're talking -- Q Paragraph 37? A 37? Yes, there my point was two-fold. One is
that sometimes you can affect the underlying tissues with administration -- localized administration topically of a drug, including cannabis in this case like rubbing it over a joint. The other aspect is that topical administration isn't going to give you a psychoactive effect, so you get all the benefits assuming that psychoactive effect is not desired, without the side effects, the downside. Basically it just becomes a salve like commercial preparations of steroidal anti-inflammatories or non-steroidal anti-inflammatories or even counter irritants like Bengay or some of those other kinds of over-the-counter drugs. So it becomes a non-issue for the most part. Now, if you had a huge amount of very concentrated material over a large body surface, yeah, you might be able to get systemic levels that you might notice but that's -- you'd really have to be trying.
Q Take you back -- I apologize to the clerk. I'll take you back to Exhibit 18 for a moment, if you would?
A Which is -- Q It's going to be put back in front of you. A Oh, okay. I'm not sure why it went away in the
first place. Q I think I asked for it to be taken away. I
apologize. A Oh, okay. Q Based on -- I'll just -- you've read the section
on infusing. You've read the section on decarboxylizing -- decarboxyling. I'll just take you to by way of example page 8, cookies. It appears to be just a recipe for making cookies?
A Mm-hmm. Q Is it your opinion that the ingestion of cannabis
infused cookies made in the manner set out in Exhibit 18 would provide therapeutic benefit to the individuals taking it?
A Well, I'm not sure that the recipe in particular is going to affect it as much as the amounts of active ingredient in it. Of course the better the cookie, the greater the dose generally speaking if you're not too conscious of how many you're taking. But I -- I don't know if I'm -- I'm being a little bit facetious here, but I'm not sure quite the -- the question -- the point of the question other than yeah, if -- if any of those recipes had the adequate -- had the same amount of drug in it, they would to my impression act in identical manners.
Q We've heard -- and I'll ask you to assume that we've heard some testimony in these proceedings that persons who obtain for example a -- a ginger cookie from the Cannabis Buyers' Club of Canada are told to -- particularly if they've never ingested cannabis orally before, to -- to start by taking a very small amount and to essentially experiment with dosage until they achieve the benefit they're seeking?
A Mm-hmm. Q Is that, from your -- in your opinion is that a
reasonable process to undertake? A I -- I believe it's an essential process. The --
if it weren't for the fact that THC in the cannabinoids in general were so non-toxic you'd have many people in the hospital or dead from eating too much because often these baked goods are well endowed with drug. And luckily it's THC and not some other drug which is more toxic because with THC you just wait -- wait it out and it's kind of overwhelming and uncomfortable, but
nobody's ever died of it and that assurance in itself helps. The -- I should introduce the concept of feedback loop in this -- in this context in that what you -- what you're describing is called self-titration. And for self-titration to be effective there has to be feedback information provided to yourself to make a decision as to whether to increase the dose or not. This is a temporal -- this is a temporal phenomenon in that if you're smoking some cannabis you -- you inhale one breath's worth of cannabis and you wait a few seconds or a few minutes and you can perceive the blood levels rising by the effect that you're -- you're experiencing and you can know within minutes whether by that feedback mechanism, by that self-perceptive mechanism, you can tell whether you should take another inhalation or not. Now, with oral ingestion you're talking about an hour of -- not just five minutes or even 30 seconds in some cases, somewhere between that for a pulmonary ingestion, so that especially if the cookies taste good you may be tempted to eat a second one before the effects of the first one are fully perceived. And you know, that's a famous story that you get from a lot of people that I know it was probably too much to take but it tasted so good. So -- so there's a -- so there's the necessity to be careful with oral ingestion because the feedback loop to tell you whether that was sufficient is so long that impatience may set in and you may think well, it hasn't really achieved what I wanted to achieve when all you needed to really do was wait another 30 minutes and you would have found that that was quite sufficient.
Q Okay. And this process of ingesting different amounts of the drug product to determine efficacy in the -- in a particular individual, is that unique to cannabis or does that have wider application to other pharmaceutical products?
A No, the dose is one of the fundamental parameters of any drug. If you have an infection for example, they'll start you off with what might be considered a -- a -- a certain standard dose and if your hand is still swollen the next day or is getting worse they'll double the dose or increase it several fold. It's -- it's -- again it's a
feedback mechanism of therapeutic action, observation of effect and then decision as to what to do next, similar to the examples I gave earlier.
Q And where there's -- we've talked about the oral ingestion with respect to -- to topical administration of cannabis. I take it based on your earlier testimony there's not -- there's not the same type of risk for unintended potentially negative side effects?
A No. No, I think it's -- it's theoretically possible, but not practically applicable. Certainly the psychoactivity is not an issue and it's such a non-toxic drug that, you know, if you were taking it as an anti-inflammatory it's not like you would probably get too much of the anti-inflammatory. At worst case I would -- I would conjecture that you might induced a localized irritation because cannabinoids can sometimes be -- induce irritation locally so, you know -- but that's a relatively minor draw -- drawback to topical.
Q You've mentioned in your testimony a couple of times the non-toxic nature of cannabinoids. Is it the case that from a toxicity standpoint cannabis and cannabinoids are safer than many or most pharmaceutical substances?
A Yes, easily. If those brownies that people were eating too many of contain almost any other drug, illegal or not, and they were overdosing in that fashion there'd be many people dead. The -- the -- if you'll -- if you'll forgive my use of the term, the forgiving nature of cannabinoids allows a broader margin of error without serious consequence. If those cookies were dosed with heroin or barbiturates, people would be dead. If you take five times more alcohol than you normally would need to achieve a psychic -- a -- a psychic drunken state you'd probably be dead. You know, there are many drugs that have a -- what's called a therapeutic index which is the ratio of efficacy to toxicity, which is maybe tenfold. Aspirin, for example, you can take two Aspirin and it'll work, but if you take 20 Aspirin you may have to go to the hospital, in fact probably would. And in fact people often kill themselves suicidally by taking common drugs, Aspirin among them. But you could
never achieve a suicide -- a successful suicide by taking cannabis.
Q Is it the case that cannabis has -- is as safe or safer than even other herbal medicines?
A It depends on the herbal medicine you're -- you're comparing, other herbal medicine you're comparing. There are some herbal medicines that are less tolerant of error than others. I would say if you want to draw a example out of the air, something like digitalis purpurea which is foxglove, a common actually decorative plant you see around, it's rather nice looking and it's used as a -- a heart stimulant. And too much of it in a tea or too much of a more potent variety in a tea can cause you problems. It's not well controlled like many other herbal materials as far as the active ingredient contents. With cannabis, it's not -- although the same principles apply, the toxicity of the active ingredient makes the jeopardy minimal compared to, for example, going into a heart attack situation with digitalis by taking too much. Like I say, it's -- it's a very forgiving class of compounds, probably because the distribution of cannabinoid receptors is not heavily involved in vital functions in the brain. For example with morphine, and -- and I've alluded to this earlier, you can easily die from morphine overdose because first you go to sleep and if the dose is high enough you stop breathing and that's because the opiate receptors responsible for signalling breathing regulation in the brain, you know, are overwhelmed by the -- the amount of morphine involved. But there's no breathing receptor regulatory mechanisms involving cannabinoids receptors, for example, so you don't -- you don't have that jeopardy.
MR. TOUSAW: My Lord, I note the time. THE COURT: Yes. We'll take 15 minutes.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)(PROCEEDINGS RECONVENED)
EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING:
Q Dr. Pate, earlier in your testimony you described the processes of extracting the glandular trichomes from the plant matter itself and I think you said well, the trichomes are part of the plant matter?
A They're as much a part of the plant as any other part of the plant.
Q They grow on the plant? A They are the plant. Q Is it the case that when the -- well, let me back
up a step. When cannabis is growing and -- and still the plant's alive, you describe the resin glands as being very sticky, correct?
A Yes. Q And then I understand that when cannabis is
harvested it's -- it's the -- the buds of the cannabis plant are then dried, is that accurate in your understanding?
A Sure. Q Do -- do the resin glands at that point harden? A No, they're pretty much the same. The resin is a
sort of sticky liquid. It's not -- moisture is not relevant to their fluidity.
Q They -- you described the process by which the -- the heads or the stalks and the trichomes can separate from the remainder of the plant material?
A Easily and continuously. Q And does that occur -- that -- that's essentially
what one is doing when one takes the dried plant matter as you describe in your report and rub it over a -- a fine screen. You're causing the trichomes to break off and fall through the screen, is that correct?
A Yeah, but you don't even need that much pressure, just simply bouncing them on a screen or -- or just dropping them on a screen at least will give you a few separations. It's a -- it's a shedding process that is -- happens easily and continuously without much provocation -- mechanical provocation.
Q And so if a consumer obtains cannabis for example in a -- in a sealed package, puts it in their backpack and takes it home, opens that package up, that agitation will -- the mere agitation that
occurs in that transportation process will cause some of the trichome heads to break off?
A Yes. Q And I understand they'll collect in the pouch for
example that it's -- that it's in? A Yes, of course. Q And what you'll then have remaining in that pouch
is I take it dried plant matter with the trichomes still attached, yes, and some trichomes detached?
A Yeah, it's not a hundred percent efficient process. It's an accidental process, but you're going to get some of one and some of the other. It could be through a backpack experience. It could be through a postal experience. It could be simply shaking, you know, dropping anything. It's -- it's kind of a brittle, fragile phenomena.
Q Earlier in these proceedings we heard testimony -- I'd like you to assume that we heard testimony that one of the warnings provided by the Cannabis Buyers' Club of Canada to new members is that inhalation of cannabis creates a risk of tachycardia, increased heart rate. Does that comport with your understanding?
A I think it's possible. It's not inevitable in terms of a noticeable effect. A lot of it has to do with both ultimate dose and how quickly those doses are achieved. In other words, if it's a very big dose very quickly you may notice that and if it's a small dose gently achieved it may not be noticeable.
Q Does that tachycardia effect, the increased heart rate effect, does that also occur with oral ingestion or can it also occur with oral ingestion?
A It could. Q Is it more likely, less likely, the same or
impossible to say? A It probably -- more likely with a massive
pulmonary dose. If you took -- really, if you inhaled a lot of cannabis in a short period of time you're going to have a very high -- high spike and in my opinion probably it's more likely. But you also have to differentiate the effect of the cannabinoid per se directly on that phenomenon versus the effect of the psychoactivity inducing a certain sense of wonderment to be understated about it and -- and maybe even fear or -- or panic
and that in itself -- by itself, out of the context of a cannabinoid, would cause a certain amount of tachycardia so that if you're -- if you're stressed in other words by the experience -- let's say you're a drug naïve patient and you had that experience of -- of being in an altered state that you're not used to, that can contribute as well. You know, I'm not trying to differentiate the proportions involved, but I'm just saying that that's perhaps a contributory effect, that is a direct effect and an indirect effect both.
Q Do you have an understanding of -- can you speak to the issue of whether intake of cannabinoids is contraindicated for persons who are consuming other drugs or pharmaceutical substances?
A Well, most drugs have contraindications just as they have indications. And there are synergies, some of which may be beneficial, some of which may be detrimental. Certainly the pharmaceutical industry as a whole doesn't like synergies, even if they're potentially beneficial because you can overshoot your mark in terms of what you're trying to achieve. And of course they don't like synergies that exacerbate side effects. You look at the character of the drug, let's call it drug A, and then you look at the character of drug B and you look to see if these are related in their actions, their mechanisms of actions and their ultimate effects and you have to decide whether these have the potential to add to a potentiative effect, that is a multiplicative effect, not merely an additive effect and then make a decision as to whether you want to apply those drugs simultaneously. In -- in the case of cannabis there's a potential interaction with opioids that actually has some clinical significance in that often because of breathing effects or other considerations, inclusing [sic] paralysis of intestinal motility and -- and consequent constipation for example, you don't want to push the dose of morphine or fentanyl or any of those other opioids past a certain point even if the patient is suffering quite a bit in spite of all the medications you can reasonably give in a safe manner. So sometimes it's been observed that cannabinoids will lower the dose of morphines or
such needed to achieve a pain relief in effect. Sometimes it's -- it could be added to the maximum amount prudent to give and give additional effect without the potential for that harm to be done which would otherwise be so with adding more morphine. In other cases it is probably not good to mix it with alcohol. I -- I wouldn't recommend alcohol in any case, but mixing the two can't help in my opinion. I don't attribute much in the way of car accidents to, for example, cannabis use. If it were a huge dose of cannabis, if it were late at night on a twisty road, yeah, there could be some misinterpretation that might lead to problems, but it's an order of magnitude or more less of a problem in my opinion than alcohol. But that doesn't mean that the combination of alcohol and cannabis is something to be desired. In fact I would -- I would say that the combination of the two is certainly worse than either one alone.
Q In your experience, are you aware of examples of -- case studies of situations in which an individual ingesting cannabis and other drugs, pharmaceutical drugs, prescription drugs, has had severe negative consequences as a result of the interaction between cannabis and the pharmaceutical substance?
A I don't know of any that are so characteristic or well known that they're -- you know, it's commonly available as -- as lore or even as case studies. But intuitively I would say that you'd stay away from probably sedative and depressive drugs, especially those which inherently have a danger in and of themselves. The cannabinoids are not an issue, but for example barbiturates can kill you and I would want to manage them out of the context of other drugs whether it's valium or some of these other drugs, let alone cannabis. So -- so I would -- I would be very careful about combining drugs which have the same ultimate effect whether they're by the same mechanisms or by different mechanisms, but this verges into medicine which is probably beyond my brief.
MR. TOUSAW: I'm going to ask that the witness refer to Exhibit 2 in these proceedings, My Lord, which is the Crown's book of photographs?
Q And in particular, Dr. Pate, ask you to turn to page 33. They're labelled in the top right
corner. A Mm-hmm. Okay. Q Page 33 depicts a Adam's peanut butter jar with a
masking tape label of Ryanol. Have you seen that? A I recognize it, yes. Q Yes. I'm just going to ask you to assume that
Ryanol is the same compound or extraction described in Exhibit 18, the recipe book under the term Ryanol that we looked at earlier.
A Okay. Q Do you recall that? A Yeah, I do, but I'd have to look up the specifics.
But -- Q And there's a number of what appear to be gel
capsules there? A Apparently. Q Is this consistent with your understanding of --
and if you need Exhibit 18 back, just say so, with your understanding of what -- what Exhibit 18 describes as Ryanol?
A Could you reference the page for me? Q It's page 10 of Exhibit 18. A I see, okay. Could you -- Q Is this -- A -- reference the question again? Q What's depicted in -- on page 33 of Exhibit 2 -- A Yes? Q -- is that consistent with what you read from page
10 of Exhibit 18, Ryanol capsules? A Apparently there's capsules there and there's a
description under it. Q I take it from your earlier testimony that even if
one were to consume a jar of this Ryanol, there would not be a -- a risk of toxicity because of the safety profile of cannabis?
A Well, it depends on what you talk about in terms of toxicity, but there's no danger of someone dying from the physical effects of it. They may be experiencing something to the intensity they find undesirable.
Q An unwanted side effect? A Perhaps, or too much of a good thing depending on
what their intent is. Q I'll ask you to pay -- turn to page 35 of Exhibit
2 which depicts a photograph. That's the book of photographs.
Q And I'll just ask you to assume that there's been testimony given in these proceedings that this photograph was taken at an apartment that was being used to produce cannabis products such as those set out in the recipe book, Exhibit 18. And just directing your attention to the top right corner, there's a -- a jar that says, "Cannoil"?
A Mm-hmm. Q And you'll recall -- A Yes. Q -- earlier we talked about a recipe for Cannoil
essentially being olive oil infused with cannabis, do you recall that?
A Yes, I do, but I'll have to look at the page again.
Q I -- I won't you need you to do -- I'm just going to ask you you've seen oil extracts of cannabis products before, have you?
A Yeah, on -- on a rare occasion, yes. Q Is this consistent with your understanding of what
such products would look like when refrigerated? A Just from appearance, I guess so. Q And same question with respect to Cannoil or the
butter, even if one were to for example drink a -- quite a quantity of this Cannoil, putting aside the unpleasantness of drinking that much oil, you're not going to die, is that correct?
A That's correct. Q You might have a -- an acute psychoactive
experience, is that fair to say? A Yes, that's probably -- understatement. Q Which may be unpleasant, but not life threatening? A Yes, that's true. Q And to your knowledge, even if an individual were
taking other pharmaceutical substances and consumed a fairly excess quantity of cannabis infused oil, they remain not at risk of death, is that correct?
A That's a little trickier, but I would say that it's more attributable to the other drug. In other words there's a bias here of danger of the other drug versus this drug and I would at least posit that you would have in -- in a mixture of two drugs, you would have more danger with an excess of the other drug rather than this drug. You know, interactions are tricky, so to make -- to pontificate about, you know, what will happen
in all cases is -- is foolish. Q You described earlier in your testimony a
relationship between humans and a cannabis plant used for therapeutic benefit that goes back -- I think you said hundreds of years if not millennia, does that --
A Yes, that's true. Q -- sound accurate? A In the modern era you could probably specify a
couple of hundred years and in ancient times up to several thousand, maybe four or 5,000 years.
Q Are you familiar with a concept known as clinical trials?
A Yes, sir. Q I -- I've heard it described and I'll -- I'll ask
you if this comports with your understanding, that cannabis has undergone a multiyear open label clinical trial by virtue of being in such popular use both medically and recreationally for an extended period of time, essentially hundreds of years. Is that a fair summation?
A Yes, I would say the majority -- well, it depends on what culture and what geographic area you're -- you're attributing this to. Certainly in the U.S. and in Canada and Western Europe you could say in the last 40 years or more, 40 to 45 years. With the explosion of use of this drug among literally hundreds of -- let's say millions of people collectively, probably let's say five percent of the combined populations, five to ten percent of the combined populations equal almost a billion people, so you're talking about tens of millions of users. And assuming average usage patterns for average lengths of time ranging from transient experimentation to lifetime usage, you're talking about probably I would guess billions of doses taken over those decades in completely uncontrolled circumstances. And the medical usage is relatively recent and accounts for only a relatively minor amount of usage. I've heard estimates that recreational usage to medical usage is probably an order of magnitude difference nine or ten to one. And I make that point because the recreational usage is much more uncontrolled than the medical usage. Even if the medical usage isn't approved, it tends to have a context in which there is some advice available. So let's
say it's -- it's of -- of moderate control whereas the recreational use is probably without even that amount of context in terms of [indiscernible/background noise] appropriate use recommendations.
Q You're familiar with a concept of double blind clinical studies?
A Yes. Q And -- and what is that? A That's a study in which the knowledge of the
specifics of the experiment are hidden or blinded from both the patient and the practitioner. This is by a third party. For example, if you're testing a drug you might have a box of capsules marked A and a box of capsules marked B and the person who is in charge of the experiment will not know if the actives are in box A or B because they've been prepared outside of the frame of that experiment. And certainly the patients don't know, so that at least -- hypothetically it eliminates the chance for bias of the practitioner of the experiment to -- through unconscious gesture or even a conscious wink and a nod to -- to bias the results of expect -- due to expectation in -- in -- in the -- in the cohort of experimental patients. And so -- and of course if -- if neither party knows what's going to happen, the assumption is what happens is inherent in the process and not a matter of placebo effect or subliminal suggestion or even overt suggestion.
Q Placebo effect is a fairly common occurrence among all drugs, is that correct?
A It's quite common and in fact some have suggested that perhaps it could be capitalized on as a therapeutic modality. I'm not sure how serious this suggestion was, but it's common enough and strong enough that you have to have well controlled trials. In other cultural contexts, Shemona [phonetic] context for example in -- in native populations, these attempts at therapy often work, sometimes don't, but how much of that you can attribute to the expectation of the patient or the influence of the practitioner apart from whatever drug is being given, usually a plant derived substance, that's hard to say. That's hard to say. That's -- that in modern terms might be called an open label study. It's where the
practitioner and the patient are intentionally ingesting -- are -- are -- is intentionally interacting with a drug which both parties have full knowledge of. It's in a context in which maybe a double blind test would not be ethical. For example, both cohorts of patients -- well, you can't have two cohorts of patients, one of which you're denying therapy to because of maybe a life-threatening condition, so you want to do the best you can with an experimental therapy and hopefully help the person that you're trying to help and not deny that hope to that strategy to a control group.
Q Whole plant cannabis -- has whole plant cannabis to your knowledge been subjected to double blind clinical studies into its medical efficacy?
A That's probably the case, it has probably not been done. It's certainly not been adequately done because these require institutional support and institutional support come from institutional financing. And institutional financing comes from usually governmental sources and governmental sources are usually not sympathetic to this kind of approach. About 70 percent or maybe three-quarters of the studies done with cannabis is supported by the National Institute on Drug Abuse. And just inherent in its name, you can tell they're not particularly sympathetic to this approach and they do not fund medical studies. What medical information we have gleaned usually is at -- as a -- if you'll pardon the expression, of side effect of the -- of the studies that have been done with an aim towards a predetermined outcome frankly in terms of trying to illustrate the harms involved in drug -- these -- the use of these drugs.
Q To your knowledge have -- has there however been research into the efficacy of whole plant cannabis or whole plant cannabis extracts conducted that are not of the double blind character?
A Well, that can range from extremely informal to more semiformal outcomes. Certainly there have been studies in which that kind of outcome is a collateral benefit of other experimentational motivations. For example, Donald Abrams, who is a well known researcher in this field relative to HIV and Aids did a study of potential toxicity
between cannabinoids and HIV drugs, either to toxicity or shall we say a neutralization of -- of efficacy of the HIV drugs. But collateral to that he did find some benefits from the use of cannabinoids, cannabis in particular, smoked cannabis -- or vaporized cannabis actually. But that wasn't the ostensible motivation for the study. It was a collateral benefit. They're not going to overtly fund experiments contrary to their political mandate.
Q To your knowledge is the conducting of double blind clinical studies a -- in today's pharmaceutical science a necessary precursor to drug approval in terms of bringing a drug to market by a pharmaceutical company for example?
A Certainly it's the normal practice for -- and the exclusive practice for new molecules. You have to differentiate between new chemical entities and perhaps traditional medicines in the herbal sense. At one time just for practical administrative reasons when they started implementing these increasingly rigorous tests of drugs, they grandfathered in -- what they called grandfathered in a lot of drugs that were in current pharmaceutical practice. They didn't want to take a whole -- a whole pharmacopeia and have to reprove that these things worked. This was decades ago. So in most cases they said well, we'll start right here and those approved drugs will be grandfathered in as approved 'cause they always have been, but will require more rigorous testing of subsequent drugs. And so there are probably residual drugs now on the market that haven't been through that process, but a lot of them have fallen by the wayside because there have been new and improved drugs to apply to the same maladies and so by attrition more and more of these drugs are -- have been through the process. And certainly all drugs past the point of the initiation of that -- of that policy have been through that process.
Q You mentioned this inception of the need for rigorous testing before adding drugs in the pharmacopeia took place decades ago. Do you know if cannabis was part of the pharmacopeia at the time these new standards were brought in?
A I couldn't give you a hundred percent answer, but
my impression is yes because they fell out of the pharmacopeia, depending on the country you're asking about, either in the '30s or the '50s and they didn't have rigorous testing programs at that point.
Q To your knowledge and with specific reference to Canada and/or the United States, was cannabis grandfathered into the pharmacopeia?
A Cannabis was in the pharmacopeia from the late 19th century, that is the late 1800's until it was basically booted out for reasons I think having more to do with politics than -- than anything in terms of a drug approval process. It was essentially dropped because it was too hard probably to manufacture under a licence or it was seen as superseded by the new improved shiny new drugs that were being introduced during that era.
Q To your knowledge is whole plant cannabis or whole plant cannabis extracts an approved drug in Canada?
A It was up until they delisted it. Q Currently, no? A No, not -- not in the -- let's say not in the
traditional form. I mean there are certainly -- in the last few years has been introduced the Sativex product. There's -- Navalone I believe is available which is an analogue of THC. Marinol I believe is available here, which is THC itself in a sesame oil capsule dissolved in -- THC in sesame oil encapsulated, excuse me.
Q And Marinol to your knowledge is just THC or does it also contain the other cannabinoids and terpenes?
A No, it's -- it's a pure synthetic THC product in sesame oil which serves probably as an antioxidant to stabilize it and then that's in -- in -- enclosed with a gel capsule, soft gel capsule.
Q And Navalone is a THC analogue? A Yes, it's -- it's similar in structure but
different from THC. Q And I -- I take it then that Navalone does not
contain the other cannabinoids or terpenes? A No, it's a pure single component. Q Sativex I understand is a whole plant extract made
up of 50 percent THC and 50 percent CBD, is that accurate?
A That's approximately so, within a percentage point
or two. Q And does it to your knowledge contain the other
cannabinoids and/or terpenes that you've talked about earlier?
A The chances are that that is so. I am not sure quite how they manufacture it these days. I was involved with the inception of that drug, in the development of that drug from the aspect of developing the plants which they currently use to extract, but it is a whole plant extract so I must presume it has all the ingredients in it.
Q The process of -- the fact that whole plant cannabis has not gone through the double blind clinical trial process --
A Had not historically. Q Has not historically gone through that, that's not
a comment I take it on its relative safety? A No. Q Or efficacy? A No, but again these are historical comments. If
you're talking about current Sativex, then you're talking about a modern version of those historical extracts that used to be in the pharmacopeia and this modern version has gone through that rigorous process and ended up in the same place, in the pharmacopeia more or less. It's -- it's -- the old style extracts were usually ethanolic extracts in a dropping bottle of some sort. You'd put a little in your tea or under your tongue. And the new version is the same extract in a spray bottle that you spray in your mouth. So let's -- you -- you could say that the new version, Sativex, is the historical vindication of the old materials that disappeared probably before their time.
MR. TOUSAW: My Lord, I note the time.THE COURT: Yes, all right. Ten o'clock tomorrow
morning.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED TO JANUARY 24, 2012, AT 10 A.M.)
