Pubdate: Thursday, August 13, 1998
Source: eye Magazine (Toronto, Canada)
Contact:  http://www.eye.net
Author: Nate Hendley

CALLING DR. DOPE

Jim Wakeford, who's dying of AIDS, got a government grant to sue the
government for the right to free medical marijuana. It's the latest twist in
Canada's constitutional dance with legalized pot

By Nate Hendley

The first thing you notice is how orderly the place is, as if the owner of
the apartment had spent hours making sure his books, tapes and Georgia
O'Keefe prints lined up in perfect symmetry. Everything in the downstairs
living room is neat and precise, while the upstairs rooms are bright and
airy and filled with art work and photographs. The images on the upstairs
walls are of celebrities, former lovers -- some of whom are now dead -- and
reclining, nude males.

There's also a few pictures of Jim Wakeford as a young man, back when he was
a hippie and had hair to his shoulders, back when the flesh on his face
didn't draw tight and he looked alive and healthy. The pictures were taken
around 1970 or so, he explains, when he worked for Oolagen House, a
treatment facility he founded where street kids could get help for drug
problems.

Wakeford could never pass for a hippie these days: his hair's cropped close
to the skull and he looks too ill to be a carefree flower child. He's gaunt
and walks around his Church Street apartment on legs that seem impossibly
thin. Wakeford weighs 129 pounds on a 5'8 frame, which is 11 pounds heavier
than he weighed at his lightest.

Back in the '60s, Wakeford lobbied for street kids; in the '80s he was an
advocate for HIV patients, and worked at Casey House the well-known Toronto
AIDS hospice. Now that he's dying, his new mission is himself.

Wakeford, who's 53, wants the federal government to provide him with "good,
clean and affordable marijuana." For the past two years, Wakeford's been
smoking "about an ounce a month ... a couple joints a day" for medical
reasons. Diagnosed with HIV in 1989, Wakeford says cannabis suppresses
nausea due to medication and stimulates his appetite. It also helps control
the anxiety brought on by taking endless rounds of legal medications
designed to buy time against a terminal medical condition.

"It ain't the marijuana that's keeping me alive," notes Wakeford. "The
marijuana is an adjunct to my therapy."

Asked why he doesn't just buy marijuana downtown, like any other pot
enthusiast, Wakeford gets testy. "I can buy marijuana as easily as bottled
water... but the quality is inconsistent and the price astronomical."

You can also get arrested for it. Six months is the maximum penalty for
first-time possession of small amounts of pot under the Controlled Drugs and
Substances Act.

Together with longtime cannabis activist and Osgoode Hall law professor Alan
Young, Wakeford has taken the government to court, charging the feds with
violating his constitutional rights.

During the first week of August, Wakeford and Young presented their case in
Ontario Court's General Division. On Aug. 7, Justice Harry LaForme announced
he will deliver his decision on Wakeford's case within a few weeks.
Potentially, the judge's decision could open the door for legal medical
marijuana across Canada, thus resolving an issue federal politicians seem
too terrified to tackle.

Wakeford, who remains guarded optimistic about his case, smiles as he
contemplates the judge's ruling. "It's time," he quips, "to get organized
crime out of medicine."

RIGHTS FOR THE DYING

If O.J. Simpson's lawyers played up the "race card" during that trial, Alan
Young is perfectly willing to admit he played "the death card" at Wakeford's
hearing. "It's hard to think of any rational reason to deny a dying man a
medicine that might provide him with relief," he explains. "I used this to
my advantage."

Even the prosecution's star witness, Dr. Harold Kalant, testified that if
there was a perfect candidate for medical pot in Canada, it would be Jim
Wakeford. Representing the former Addiction Research Foundation and the
University of Toronto Pharmacology Department, Dr. Kalant is one of Canada's
top marijuana experts. Normally a skeptic when it comes to medicinal
cannabis, Dr. Kalant has testified in other cases that Marinol (a synthetic
drug containing THC, the chemical that gives marijuana its psychoactive
kick) is superior to cannabis. Marinol is legal for cancer and AIDS
patients, but Wakeford says it made him violently sick the one time he tried
it.

Young's legal challenge is based on Sections 7 and 15 of the Canadian
Charter of Rights and Freedoms. Section 7 states that all citizens have the
right to "life, liberty and security". By denying Wakeford legal pot, the
government is putting his life at risk, Young argues. Were Wakeford to be
arrested for buying medicine on the black market, his liberty would be
forfeit.

Young has used life and liberty arguments in previous constitutional
challenges aimed at overthrowing Canada's pot laws. Where the Wakeford case
differs from others is the way Young is using Section 15, which states that
all Canadians have a "right to equal protection and equal benefit of the law
without discrimination." Young claims that Wakeford's equality rights under
Section 15 are being violated. "People with AIDS are discriminated against
because they can't get medicines they need due to the Controlled Drugs and
Substances Act," he explains.

Young says that his personal strategy is to "bring as many of these cases as
forward as possible... if the courts keep handing out [legal] exemptions to
the drug laws, then it will force the government to act because the
government doesn't want to lose control."

Flamboyant constitutional challenges have the added benefit of attracting
media attention and high-profile supporters. During the court hearing, one
of the affidavits presented by Young came from renowned Harvard scholar
Stephen Jay Gould, who wrote that smoking marijuana helped control his
nausea after chemotherapy for cancer.

POLITICIANS HIDE BEHIND THE COURTS

The money for this attack on federal prohibition happens to come from the
government-funded Court Challenges Program. Based in Winnipeg, the CCP was
set up in 1994 to fund "court cases that advance language and equality
rights guaranteed under Canada's Constitution," according to the
organization's website. The CCP, which receives $2.75 million a year from
the federal Department of Canadian Heritage, gave Wakeford $50,000 -- which,
along with the few thousand dollars Wakeford managed to raise on his own,
has allowed Young to present an impressive case.

Aaron Harnett, who successfully represented Toronto epileptic and medical
pot user Terry Parker in a similar constitutional challenge last December,
says he isn't surprised the Court Challenges Program offered Wakeford cash.
"I think the government actors in this scenario would be perfectly pleased
if the courts took up this action (and changed the law)," he states.
Court-ordered pot would allow the government to disavow any responsibility
for the marijuana issue, he says.

Last year, MP Jim Hart (Reform, Okanagan/Coquihalla) introduced a private
member's bill that would legalize medical pot for people with conditions
such as AIDS, cancer, epilepsy and multiple sclerosis. The Bloc Quebecois
has also been harping about removing medicinal cannabis from the Criminal
Code.

Health Minister Allan Rock and Justice Minister Anne McLellan both claim the
feds are in the process of creating regulations to distribute legal medical
marijuana. No one involved in the Wakeford case takes such promises
seriously.

Back in January of this year, Dann Michols, the director of the general
therapeutic products directorate at Health Canada, visited Wakeford at his
apartment. "He told me the federal government would make medical marijuana
available within months," says Wakeford. As far as Wakeford and Young are
aware, the Liberals aren't straining themselves to live up to Michols'
promise.

If all Wakeford wanted was cheap and easily available dope, he could join
one of the several underground medical marijuana clubs around Ontario. In
1997, Wakeford helped pot activist Neev Tapiero set up C.A.L.M. (Cannabis as
Legitimate Medicine), an above-ground medical marijuana dispensary modelled
after medical cannabis centres in California. C.A.L.M. was Toronto's first
medical marijuana club and folded after a few months, due to lack of
membership.

According to Tapiero, there are new medical pot clubs now operating in
Toronto, London, Kitchener, Guelph and Waterloo, but Wakeford isn't
interested in joining.

Part of Wakeford's reluctance seems to be attitude. Why slink into a
cannabis club that might get busted when you can sue the government to
provide you with legal medicine? A handful of American medical patients
receive free marijuana from the U.S. federal government, courtesy of a now
discontinued experimental medicine program. Wakeford sees no reason why a
similar system couldn't work in Canada, or, even better, why marijuana
couldn't be covered under provincial drug plans and sold at legal outlets.

The main reason why marijuana isn't found in Ontario pharmacies is because
the United States lies south of our border. American politicians have turned
their War on Some Drugs into a fundamentalist crusade, leaving Canadian
governments afraid to endorse even tepid reforms, such as medical marijuana.

But with plaintiffs like Jim Wakeford and lawyers like Alan Young ready to
keep forcing the matter, politicians won't be able to avoid the issue
forever. In the meantime, it's up to Justice Harry LaForme to decide whether
to change a law to accommodate a dying man who wants to smoke pot in peace.

First sidebar:

Takin' it to the courts

Major Ontario court cases of the last two years (not including Jim
Wakeford's)

Defendant: Chris Clay.

Lawyers: Alan Young and Paul Burstein.

The case: After his London, Ont., store Hemp Nation was raided by police,
Clay teamed up with Young to launch a constitutional challenge to Canada's
pot laws. Young tried to prove that pot isn't harmful enough to criminalize
and that adults should have the right to use it.

Verdict: On Aug. 14, 1997, Justice John McCart dismissed Young's
constitutional challenge and found Clay guilty on several pot-related
counts. The judge did say, however, that marijuana isn't addictive, doesn't
cause insanity, doesn't lead to hard drugs and that Parliament should
consider decriminalizing it.

What now: Young has taken the case to the Ontario Court of Appeals.

Defendant: Terry Parker.

Lawyer: Aaron Harnett.

The case: In 1987, Parker, who smokes marijuana to control his severe
epilepsy, became the first person in Canada to win the legal right to use
medical pot. Too bad he didn't have the right to grow his own medicine: in
1996, cops raided Parker's Toronto apartment and arrested him for
cultivation and trafficking. In court, Harnett took a leaf from Young's book
and launched a constitutional challenge in which he stated Parker's
security, life and liberty would be violated if he were denied access to
marijuana.

Verdict: On Dec. 10, 1997, Justice Patrick Sheppard ruled in Parker's favor.
The judge not only reiterated Parker's right to possess pot, but said he can
grow his own dope, too.

What now: The crown is appealing the verdict.

Defendant: Lynn Harichy.

Lawyer: Alan Young.

The case: On Sept. 15, 1997, Harichy, who smokes marijuana to relieve pain
and discomfort associated with multiple sclerosis, marched to London police
station and deliberately got herself arrested for possessing a joint. She
plans to turn her trial into a forum on legalizing medical pot.

Second sidebar:

Altered states

1975 -- The Supreme Court of Alaska rules that smoking marijuana in the
privacy of your home is legal.

1994 -- Top courts in Colombia and Germany decriminalize marijuana.

1997 -- In Canada politicians remain reluctant to touch the issue, so pot
activists turn to the courts as a way to strike down pot laws.

- ---
Checked-by: "Rolf Ernst"