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Pot Law Fight Predicted

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The Windsor lawyer whose constitutional challenge opened the floodgates
for thousands of marijuana possession charges across the country to be
thrown out says Health Canada has re-opened the door to such challenges in
Ontario.

New regulations governing medical access to marijuana announced by
Minister of Health Anne McLellan don't comply with a landmark Ontario
Court of Appeal ruling made Oct. 7, criminal defence lawyer Brian
McAllister said Tuesday.

"I don't want anybody to act on the basis of this, but I certainly think
anybody charged (with possession) in Ontario, as of today, has a good
chance of challenging it because we're once again in the pre-Oct. 7 state
of the law," he said.

The amendments to the Marijuana Medical Access Regulations allow licensed
growers to be compensated for their costs. They also eliminate the
requirement that some medical marijuana users have the support of more
than one physician to be eligible.

However, the regulations continue to restrict those licensed to grow
medical marijuana to supplying one user.

They also maintain a prohibition against more than three licensed growers
cultivating a crop together.

The Ontario Court of Appeal clearly stated that those restrictions needed
to be loosened for medical marijuana users to get a legal supply of the
drug, McAllister said.

"It's so brazen I'm in shock," he said of Health Canada's failure to do
so. "This is really back-room dealings circumventing a court order."

Alan Young, a Toronto lawyer representing medical marijuana users, has
already said he plans to take Health Canada to court for contempt. Medical
marijuana users had hoped that the Ontario appeal court decision would
open the door for compassion clubs to provide sick people convenient and
economical access to the drug.

The reason Health Canada's failure to address those issues also affects
those charged criminally for possessing marijuana goes back to the appeal
court ruling and the Ontario court cases leading up to it, McAllister
said.

The appeal court found the law prohibiting marijuana possession was
invalid after July 31, 2001, because the rules governing medical access to
the drug were so restrictive they forced sick people to go to the black
market.

On that basis, McAllister succeeded in getting the court to dismiss a
marijuana possession charge against a 17-year-old Kingsville youth, who
admittedly had no medical reason for possessing the drug.

Thousands of marijuana possession charges laid between July 31, 2001, and
Oct. 7 this year have been stayed or thrown out of court as a result.

The appeal court made marijuana possession illegal again by striking down
four provisions of the medical access rules as unconstitutional ?
including the restrictions on authorized growers.

Federal Justice Department spokeswoman Pascale Boulay said it will take
another court challenge to determine if McAllister's assessment of the
current state of the law is correct.

The restrictions on authorized growers remain to prevent diversion of
marijuana for illegal purposes and to meet international obligations to
control illegal drugs, said Health Canada spokeswoman Catherine Saunders.

"While the court imposed a remedy to address the constitutional
shortcomings it had identified in its decision, it also afforded the
government of Canada large discretion in implementing an alternate remedy
to address the issue of reasonable access to a legal source of marijuana
for medical purposes," she said.


Author: Ellen van Wageningen
Source: Windsor Star
Contact: letters@win.southam.ca
Website: http://www.canada.com/windsor/
Pubdate: Wednesday, December 10, 2003