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Ottawa Loses Medical Marijuana Challenge

Herb Fellow

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The federal government lost another court challenge to its controversial medical marijuana program, and now has 30 days to decide whether to appeal the ruling that declared one of its key policies unconstitutional.

Under the current set of regulations, licensed producers are only allowed to grow the drug for one patient at a time. Federal Court Judge Barry Strayer said that one-to-one ratio violates the Charter of Rights and Freedoms.

The decision, the latest in a string of court cases, will essentially mean more choice for approved medical marijuana users and should provide easier access for them to the drug.

"What the federal court effectively did was assert that the government of Canada does not have a monopoly over the production and distribution of medical marijuana," said Alan Young, one of the lawyers that launched the court battle on behalf of 30 patients.

Authorized users who cannot grow their own marijuana because they are too ill, or for other reasons, must then rely on a sole source provider -- either a licensed private producer, if they can find one willing to produce only for them, or the government, which buys the plants from a Saskatchewan-based company.

"In my view it is not tenable for the government, consistently with the right established in other courts for qualified medical users to have reasonable access to marijuana, to force them either to buy from the government contractor, grow their own or be limited to the unnecessarily restrictive system of designated producers," Judge Strayer wrote in his decision, which was released late Thursday.

The one-to-one ratio was first struck down by an Ontario appeal court in 2003, but the government reinstated the policy several months later, prompting the current court challenge.

"We're reviewing the decision," said Paul Duchesne, a spokesman for Health Canada, which regulates the program. He would not comment further and did not indicate how quickly the government would decide about appealing the ruling. "As soon as there is a decision we will make that clear," he said.

Mr. Young and his co-counsel Ron Marzel described the court's ruling as a "nail in the coffin" of the one-to-one ratio restriction.

"In theory, patients now have a choice whether to buy from the government or whether to create the small collectives of patients that go to an experienced and knowledgeable grower," said Mr. Young.

There are about 2,000 people legally allowed to use marijuana for medical purposes but fewer than 20% buy it from the government's supplier. Some patients say the quality is poor and others say only one strain of the plant is offered -- different strains having unique therapeutic effects.

"It's a clear message to Ottawa that they can't stand in the way of providing much-needed medication for these individuals," said Mr. Marzel.

He does expect, however, that the government will appeal the decision.

If it does, or if it introduces a policy that only slightly changes the ratio, the lawyers say they will head back into court. Mr. Young said they will fight for a measure called supervisory jurisdiction, which would require Health Canada to submit progress reports to the court on the program's operation.

Strayer has already denied that request but Young said he will try again and has not ruled out lawsuits against Health Canada.

"I'm just trying to clean up the law and to ensure that sick people have proper, lawful access to a medicine of their choice," said Mr. Young, a professor at Osgoode Hall Law School in Toronto. "But because of all the obstacles that have been put in that path over the last eight years, there will reach a point where it's no longer about trying to use the courts to try and improve the program but it will be about punishing Health Canada for their incorrigibility."

Source: National Post
Copyright: 2008, Canwest News Service
Contact: Meagan Fitzpatrick, Canwest News Service
Website: Ottawa loses medical marijuana challenge
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