04/13/2012 04:56 EDT | Updated 06/13/2012 05:12 EDT

B.C. judge strikes down medical marijuana rules for not allowing pot cookies

VICTORIA - A judge in Victoria has ruled it's unconstitutional to prevent medical marijuana users from eating pot cookies, but the man whose case prompted the decision will still face trial.

B.C. Supreme Court Judge Robert Johnston has ruled sections of the federal regulations governing medical marijuana violate the charter because they limit legal use of the drug to its dried form.

Johnston said the Marijuana Medical Access Regulations wrongly prevent licensed marijuana patients from using pot in other forms, such as oils in baked goods.

The ruling stems from a case involving Owen Smith, head baker for the Cannabis Buyers' Club of Canada, who was charged with possessing and trafficking in marijuana for baking pot-laced cookies for distribution to medical marijuana users. His lawyer argued the medical marijuana regulations violated Smith's rights.

Despite the ruling, Johnston said Smith will still face the drug charges because he didn't have the authorization to produce the cookies.

Smith's lawyer explained that the ruling deletes the word "dried" from the medical marijuana rules.

"Justice Johnston did declare that the law restricting medical possession and production of cannabis to dried form only did violate the charter," said Kirk Tousaw.

Johnston had yet to rule on whether the decision takes effect immediately or whether Parliament will be given time to rewrite the regulations. The ruling would only apply in B.C. unless the case is eventually appealed to the Supreme Court of Canada.

Smith's jury trial is scheduled to begin April 25.

Smith said he hopes a jury will agree making an edible marijuana product is better for people relying on the drug for medical reasons.

"It's hard to think that somebody would want to deny somebody a safer form for medicating," said Smith.

The current rules are "essentially forcing sick people to smoke, and that's against most people's common sense," he said.