Pubdate: Tue,  1 Aug 2000
Source: Windsor Star (CN ON)
Copyright: The Windsor Star 2000
Contact:  http://www.southam.com/windsorstar/
Forum: http://forums.canada.com/~canada
Author: Janice Tibbetts, Southam News

COURT DECIDES MEDICAL POT OK

In a ruling that takes a step toward marijuana ,legalization, a judge 
struck down the federal government's anti-possession law Monday for ill 
Canadians who smoke pot to ease pain.

Justice Marc Rosenberg of the Ontario Court of Appeal, declaring the law 
violates the rights of sick people by forcing them to choose between 
"health and imprisonment," gave Ottawa one year to rewrite its legislation.

The ruling was a victory for Terry Parker, 44, of Toronto, who smokes three 
or four joints a day to control severe epilepsy that even brain surgery and 
more than 100 hospital stays did not ease.

Parker, denouncing the federal Controlled Drugs and Substances Act for 
"sucking big time," will continue to grow his own marijuana.

He said it is the only drug that gives him relief from the repeated 
seizures, blackouts and vomiting he suffered since childhood.

"It's been three years now ... and there's not been one seizure," Parker, 
with his lawyer at his side, said outside the Court of Appeal.

Rosenberg, in striking down the act, goes further than a 1997 decision in 
which Parker was awarded a special exemption to the federal law.

If Health Minister Allan Rock does not act, the blanket prohibition on 
possession will be nullified and marijuana will be legal in Canada for 
everybody, including the healthy.

"It has been known for centuries that in addition to its intoxicating or 
psychoactive effect, marijuana has medicinal value,"Rosenberg said in his 
55-page ruling.

Violates Personal Liberty

"I have concluded that forcing Parker to choose between his health and 
imprisonment violates his right to liberty and security of the person."

Rock started last year to award special exemptions to some ill Canadians 
who can prove they need to smoke marijuana to control diseases such as AIDS 
and cancer.

But Rosenberg rejected the requirement for the sick to seek federal 
permission to smoke.

"I have concluded that the possibility of an exemption ... dependent upon 
the unfettered and unstructured discretion of the Minister of Health is not 
consistent with the principles of fundamental justice," he wrote.

"Accordingly, I would declare the prohibition on the possession of 
marijuana in the Controlled Drugs and Substances Act to be of no force and 
effect."

Rosenberg suspended his ruling for a year to give Parliament time to revamp 
its law.

Ruling protects Parker

In the meantime, Parker "cannot be deprived of his rights," said Rosenberg, 
who gave the unemployed man permission to continue growing his own marijuana.

Parker, who survives on a disability pension, was arrested twice for 
cultivating pot, once after police raided his home in 1996 and seized 70 
plants, also charging him with drug trafficking.

Officials at Health Canada and Rock's office would not comment on the 
ruling Monday. It is not yet known whether the government will ask the 
Supreme Court of Canada to hear the case.

Although the judgment applies only in Ontario, the province's court of 
appeal is one of the most influential in the country and will likely have 
weight in other superior courts.

In a separate ruling, however, Rosenberg rejected an appeal from Chris 
Clay, a former London hemp store owner who was seeking the general 
legalization of marijuana. His lawyers are expected to seek leave to appeal 
in the Supreme Court of Canada.
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