Pubdate: Fri, 08 Oct 1999
Source: National Post (Canada)
Copyright: 1999 Southam Inc
Page: A10
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Author: Luiza Chwialkowska, National Post

OTTAWA ASKS ONTARIO COURT TO OVERTURN MARIJUANA RULING

USE CONTROLLED SEISURES

Man Should Have To Apply For Medical Use, Court Told

In a struggle to keep control over medical marijuana firmly in the hands of
the minister of health, the federal government yesterday asked the Appeal
Court of Ontario to strike down a two-year-old decision that allows a
Toronto man to smoke cannabis to control his epileptic seizures.

Terry Parker, a 44-year-old man who suffers severe seizures that have
repeatedly endangered his life, in 1997 became the first Canadian to
lawfully smoke marijuana, after he persuaded a lower court that
conventional therapies, including the surgical removal of parts of his
brain, had not controlled his symptoms as effectively as smoking the banned
drug. Court victories such as Mr. Parker's have successfully put pressure
on the government to begin developing a policy to allows access to
marijuana on medical grounds. Now that the government has begun to make
such allowances, however, it is asking the courts to step back and allow
Allan Rock, the Health Minister, to decide who gets access to the drug and
when.

This week, Mr. Rock granted exemptions from criminal prosecution to 14 ill
Canadians who use cannabis for medical purposes. The government is arguing
Mr. Parker should also be required to apply to Mr. Rock for permission to
use marijuana under a special section of the Controlled Drugs and
Substances Act.

"Parliament has put specific mechanisms in place to allow applications to
be made for access to controlled substances in cases of medical need," the
Crown argues.

The Crown also said that Mr. Parker did not exhaust all legal therapies
available to him -- for example, he did not try Marinol, a synthetic form
of marijuana.

Aaron Harnett, Mr. Parker's lawyer, says he is cynical about the
government's motivation in announcing 14 exemptions this week. He suspects
the exemptions were timed to show the court that the government had put in
place a working application process.

While the policy may be good news for other patients, Mr. Harnett said: "It
does not mean the protection [Mr. Parker] has should be eroded."

Forcing Mr. Parker to forego marijuana while he wades through a
bureaucratic application process would make his seizures worse and deprive
him of his constitutionally guaranteed right to life and security of the
person, Mr. Harnett said.

"If the Crown's appeal is successful, Mr. Parker will have a choice. He can
either break the law and stay healthy, or he can make an immediate
application and withstand the onslaught of seizures that will knock him
down until the government approves," Mr. Harnett said.

The Crown argued that the court did not have the power to allow Mr. Parker
to use marijuana, and that by lifting a criminal sanction from a drug
offence, the judge usurped Parliament's power to legislate criminal law.

Mr. Parker said that he may not be able to successfully apply for
permission from Mr. Rock because the application requires the written
endorsement of a doctor.

"For now, I can't find a doctor to endorse something that is illegal," he
said.

Intervening in the case is the Epilepsy Association of Toronto, which has
told the court that the enforcement of the marijuana prohibition
discriminates against people living with epilepsy.
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