Pubdate: Tue, 28 Oct 2008
Source: Globe and Mail (Canada)
Copyright: 2008 The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Bookmark: http://www.mapinc.org/mmjcn.htm (Cannabis - Medicinal - Canada)

RULING LOOSENING ACCESS TO POT UPHELD

TORONTO (CP) -- A Federal Court of Appeal yesterday upheld a lower 
court ruling loosening Ottawa's tight grip on access to medical 
marijuana, and the federal government is reviewing the decision, a 
Health Department spokesman says. A three-judge panel dismissed an 
appeal from government lawyers who argued that Ottawa's monopoly on 
medical pot was the only way to provide a safe and reliable supply.

The panel strenuously challenged arguments made by Justice Department 
lawyer Sean Gaudet that there was a lack of hard evidence to back up 
a Jan. 10 decision by Mr. Justice Barry Strayer of the Federal Court.

"We're not persuaded [Judge Strayer] committed any error," Mr. 
Justice John Evans said in the ruling that came just hours after the 
government had started laying out its case.

Judge Strayer's decision, which noted that fewer than 20 per cent of 
patients actually use the government's supply, also struck down a 
provision limiting one grower of medical marijuana to supplying just one user.

As well, the judges rejected a request for a one-year delay to 
enforce their ruling to give the government time to come up with an 
alternative solution.

Mr. Gaudet declined to comment after the ruling, but a spokeswoman 
for Health Minister Tony Clement said the government is studying the decision.

"We will review it, and respond accordingly," wrote Laryssa Waler in an e-mail.

Lawyer Alan Young, who represented medical users, said the decision 
is "good for the patients."

He said Health Canada could now determine on a case-by-case basis how 
many patients a grower could supply. Or, he said, the government 
could come up with a new limit, which could send the case back to court.

One key government argument challenged by the appeal panel was that 
the federal supply policy established in 2003 ensured there was an 
effective, legal supply being provided to users.

"The problem with the policy is it's just a policy," said Madam 
Justice Karen Sharlow. "The government can rip it up ... tomorrow."

The judges also challenged Mr. Gaudet on the lack of hard statistical 
evidence on whether government-provided marijuana met the medical 
needs of users.

"I don't see that," said Judge Sharlow. "That troubles me."

Mr. Justice Michael Ryer questioned whether the government petitioned 
buyers to determine what they required.

Mr. Gaudet conceded there wasn't a conclusive study from Health 
Canada on the issue.

The government argued that allowing one grower to supply a large 
number of users creates security risks, but that logic was rejected 
by Mr. Young.

"They're saying that it's easier for them to control 1,600 individual 
grows ... as opposed to consolidating into maybe 30 large grows," he 
said. "That just doesn't make any sense."

Before the January ruling, medical users could grow their own pot, 
but growers such as Carasel Harvest Supply Corp. couldn't supply the 
drug to more than one user at a time.

"The question isn't whether the government's medicine is good, the 
question is whether the government has acted arbitrarily in 
restricting patients' choice," Mr. Young said.

"God forbid we get into a situation where government's going to 
dictate to us whether Aspirin or Advil is the painkiller of choice."

Users of medical marijuana on hand for the decision were delighted.

"I can't always get what I need," said former corrections worker 
Alison Myrden, 45, of Burlington, Ont., who suffers from MS and 
another affliction that causes severe facial pain.

Ms. Myrden said she has to go to the street to get a strain of 
marijuana called "William's Wonder" to properly treat the latter condition.

"We've asked for [the government's] help for years, and they still 
pass us off like a political football," she said.

Saskatoon-based Prairie Plant Systems is currently operating the 
government-approved pot growing operation deep in a northern Manitoba 
mine. It is bidding to keep the contract, which it won in 2000 and 
that expires this week.

Organic growers from Vancouver Island, like Eric Nash of Island 
Harvest, also hope to bag the new federal contract with the promise 
of supplying better, cheaper and different varieties of weed.

"I can guarantee you [Mr. Nash is] on the phone right now saying 
what's happening with the application for my 75 patients," Mr. Young said.
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MAP posted-by: Jay Bergstrom