Pubdate: Tue, 01 Aug 2000
Source: Globe and Mail (Canada)
Copyright: 2000, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Forum: http://forums.theglobeandmail.com/
Author: Jane Gadd

LAW AGAINST MARIJUANA STRUCK DOWN IN ONTARIO

Amend statute or face legalization, Ottawa told

With reports from Rod Mickleburgh in Vancouver; and Mark MacKinnon in Ottawa

Toronto -- Ontario's highest court has declared the law prohibiting the
possession of marijuana unconstitutional, and has given Ottawa a year to
amend it or lose it.

The Ontario Court of Appeal said the year is to give Parliament a chance to
fill the void. Meanwhile, marijuana possession is still illegal.

The court ruled yesterday that the law fails to recognize that marijuana can
be used for medicinal purposes by the chronically ill.

Upholding a lower-court decision in the case of Terrance Parker, a
44-year-old epileptic who won a 23-year court battle for the right to smoke
the drug to control his seizures, the appeal court declared the marijuana
possession section of Canada's Controlled Drugs and Substances Act invalid.

Advocates for decriminalization of marijuana hailed the decision as a "huge"
victory, not just for people whose doctors back their claims to need the
drug to treat illnesses, but for recreational smokers, too.

"If [Parliament doesn't] amend the law and rectify the problem with
[medical] exemptions, then everyone will be entitled to smoke marijuana
legally in 12 months," lawyer Alan Young told reporters.

Ottawa avoided grappling with the thorny issue of abortion in just this way,
Mr. Young pointed out.

When the Supreme Court of Canada ruled in Regina vs. Morgentaler that
prohibiting a woman from terminating a pregnancy violated her fundamental
right to security of the person, the government did not rewrite its
legislation.

"They didn't return to it and therefore we don't have a criminal law
relating to abortion," Mr. Young said.

There are now three options presenting themselves to the federal government:
appealing the decision, accepting it and rewriting the law within the
one-year period to provide for medicinal uses, or allowing the law to be
struck down, effectively legalizing marijuana. The third route is considered
highly unlikely.

Health Canada spokeswoman Roslyn Tremblay said the government's lawyers
would study the decision before advising on a course.

"It would be speculating to say what they'll do. Fortunately, they've got a
year to look at it," she said. "They'll take time to review the judgment
very carefully and look at what action will be taken."

In 1997, Mr. Parker became the first Canadian allowed to smoke and cultivate
marijuana with impunity when the Ontario Superior Court ruled that he needed
it to control his illness and that the prohibition infringed his rights
under Section 7 of the Charter of Rights and Freedoms. The court stayed
charges laid against him when police raided his 73-plant hydroponic garden.

However, the Crown appealed on several grounds: that he had not proven
marijuana was the only treatment that could help him; that he could have
used a legal, synthetic version of the plant's active ingredient; and that
he could have applied for an exemption from the Controlled Drugs Act through
the federal Minister of Health.

Yesterday, a three-judge panel of the appellate court rejected all three
arguments.

Justices Marc Rosenberg, Marvin Catzman and Louise Charron said they were
satisfied with the factual evidence that Mr. Parker needs to smoke marijuana
for his health, and that the drug causes relatively little harm.

They also found that the federal Health Minister's exemption program fails
to provide a safe, legal supply of the drug for people who need it for
medical reasons.

"The possibility of an exemption . . . that is dependent upon the unfettered
and unstructured discretion of the Minister of Health is not consistent with
the principles of fundamental justice," they said.

An estimated 150,000 people in Ontario need medicinal marijuana to ease the
symptoms of AIDS, cancer treatment, glaucoma and epilepsy, but the Health
Minister has granted only about 50 exemptions to date.

Lawyers for medicinal marijuana users say applications for exemptions go
into a "black hole" at Health Canada.

"Hundreds of people get no response from the government to their
applications," said Aaron Harnett, who represented Mr. Parker at the
appellate court. "They're sitting there, sick and waiting, and the court has
said the government must stop their punishment, their imprisonment."

Mr. Young added that the government must provide a supply of legal marijuana
to patients if its exemption policy is to have any meaning.

Exemption from prosecution is useless if you cannot obtain a supply of the
drug, he said.

As a result of the ruling, Mr. Parker can continue to grow and use marijuana
without fear of being raided and prosecuted for one year.

Other medicinal users charged during that time will not be prosecuted until
Ottawa either amends the law or mounts an appeal to the Supreme Court of
Canada.

A wan-looking Mr. Parker told reporters yesterday that he is thankful for
the Ontario court's decision in his case, but won't be content until all
Canadians have the right to use marijuana without prosecution.
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