Pubdate: Tue, 07 Oct 2003
Source: Globe and Mail (Canada)
Copyright: 2003, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Kirk Makin
Links: to the court decisions are at http://cannabislink.ca/legal/#legalcases
Bookmark: http://www.mapinc.org/topics/Ontario+Court+Appeal
Bookmark: http://www.mapinc.org/people/Alan+Young
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)

OTTAWA'S POT RULES UNCONSTITUTIONAL, COURT RULES

A federal scheme that supplies marijuana to those with serious medical
problems unconstitutionally forces users into the black market to
obtain a reliable supply, the Ontario Court of Appeal has ruled.

The court said the current federal licensing scheme obliges those who
are ill to act like criminals, obtaining illicit supplies "with all
the risks of tainted product this presents.

"Exposing these individuals to these risks does not advance the
objective of public health and safety," it said in a 3-0 ruling.
"Rather, it is contrary to it. Equally, driving business to the black
market is contrary to better narcotic drug control."

The court stopped short, however, of striking down the entire scheme.
It opted to tinker with the law to make it comply with the
constitutional right to life, liberty and security of the person.

The ruling effectively forces the government to make it easier to grow
and supply licenced marijuana to medicinal users, while at the same
time upholding the laws prohibiting pot possession.

It ends a period of chaos in which police essentially stopped
enforcing the marijuana possession law because of conflicting rulings
as to its validity.

Lawyer Alan Young, who represented several of the litigants, said in
an interview that it will deplete much of the momentum behind the
movement to decriminalize recreational use of marijuana.

Sick people are now able to adequately obtain their own supply of
marijuana, he said, and the future of decriminalization will be
largely on a societal debate over the pros and cons of health and
psychological effects of the narcotic.

"The court called our bluff, so to speak," Mr. Young said.
"Politically, we lost big-time."

Specifically, the ruling removed:

* The need for a second physician to endorse a patient's application
to receive medical marijuana.

"This requirement is at best redundant," the court said. "It adds no
value to the application and does little or nothing to advance the
state objective. In particular, it does nothing to promote public
health and safety."

* A restriction that prevents designated, licenced growers from
receiving compensation for supplying marijuana to sick people eligible
to receive it.

* A provision that prevents licensed growers from raising marijuana
for more than one person.

* A prohibition against licensed growers' producing marijuana in
common with more than two other growers.

Mr. Young said he expects to see large-scale cultivation operations
apply to the government for licenses to produce legal marijuana. He
said that if they are denied, the government had better have good
reasons that will past muster in the courts.

The appeal court said today's order will take effect
immediately.

"Some of these people are terminally ill," it said. "To suspend our
remedy if they may die in the meantime is, in our view, inconsistent
with fundamental Charter values."

Mr. Justice David Doherty, Mr. Justice Stephen Gouge and Madam Justice
Janet Simmons emphasized that they were doing their best to respect
the federal government's right to legislate.

"This case is not about the social and recreational use of marijuana,
but is about those with the medical need to use marijuana to treat
symptoms of serious medical conditions," it said.

The judges said there is incontrovertibly "a strong body of opinion
supporting the claim that marijuana offers some individuals
inestimable relief from a variety of debilitating symptoms associated
with serious long-term illness such as AIDS, cancer and epilepsy."

At the same time, it said, scientists remain uncertain about health
risks of long-term marijuana use -- and the federal government has
genuine concerns about rushing forward.

Today's ruling came after the federal government appealed a decision
last January in which Ontario Superior Court Judge Sidney Lederman
ruled in favour of seven ill people who sued the government for a
legal source of pot.

Judge Lederman said it was unfair to allow people to use medicinal
marijuana and yet compel them to purchase their supply on the black
market because they are not given access to a legal supply.

Judge Lederman set a deadline in July for the federal government
either to alter its regulations or to supply marijuana itself. The
government responded with a stopgap plan whereby it supplies pot to
approved users.

The hurdles involved left some sick people complaining that they could
not gain to a legal supply of marijuana. Others did not apply to
receive the government-grown marijuana because of quality concerns.

So far, the pot is being grown in Flin Flon, Man., by a company on
contract to the government, but there has been considerable
controversy about its quality. Mr. Young said it will be a moot point,
since the government is bound to immediately end the operation.

While Tuesday's ruling is less broad than Judge Lederman's, it is
likely to meet with approval of most medicinal users.

While many find the criminal prohibition offensive, they were prepared
to settle for a relaxation in the strict eligibility requirements for
approval and the provision of a legal, affordable, and effective
supply of pot. 
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MAP posted-by: Richard Lake