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Nearly three years ago, a customer stepped outside his Gator Teds Tap and Grill in Burlington to light up a legal medicinal marijuana joint. Kindos, not sure what the rules were and having asked the regular customer repeatedly to stop, confronted him because he didn't want to force customers - including families and kids - to walk through a plume of pot smoke to get inside.

He certainly didn't want to jeopardize his liquor licence, which he said could be revoked if drugs are used on the premises.

It might have been better if he'd kept his mouth shut.

There are guidelines but no rules in Canadian law that regulate where medical marijuana users can smoke their legal pot - a loophole critics say needs to be closed.


With an aging Baby Boom generation, Canadians in growing numbers, tens if not hundreds of thousands, will turn to medical marijuana over the next few years to cope with everything from arthritis to cancer.

The confrontation between Kindos and his customer three years ago may be the catalyst to change national laws, or it could ruin him.

Kindos has already spent nearly $20,000 of his own cash, and estimates he could spend upwards of $150,000 more fighting an Ontario Human Rights Commission complaint launched by Steve Gibson, who is licensed to smoke marijuana by the feds to manage the chronic pain of a neck injury that has kept him out of work since 1989.

Fighting the case, which will be heard by the province's Human Rights Tribunal in May, could send Kindos' business into bankruptcy and is playing hell with his health, he said.

"If this thing goes to the tribunal, that's it, we're done. Our restaurant is done," he said. "We've already been told we can't win.

"I had a heart attack at 38. I've already had a quadruple bypass. The business pretty well killed my dad (who died of a heart attack at 48 in 1991) and now, with all this stuff going on, it's killing me ... I'm under so much stress right now."

Opposition critics say Kindos' case exposes the current medical pot policy, the Marihuana (sic) Medical Access Regulations, as flawed and are calling for change.

"I contacted the minister of health and told him these regulations have got a giant loophole in them, I mean you could drive a truck through it, so maybe it's something we ought to deal with," Halton MP Garth Turner told the Sunday Sun.

Turner, whose riding includes Burlington, said restrictions should be placed on where licensed marij uana users can light up.

"It's evident to me the law is very flawed," he said. "They (medicinal marijuana users) should be allowed to do it, but they shouldn't be allowed to infringe on the rights of other people."

Federal NDP drug policy critic Libby Davies said the reluctance of governments, both the previous Liberals and now the Conservatives, to clear up the "botched" legislation that the Liberals brought in 2001 "kicking and screaming" has resulted in problems not just for the public but also for users themselves.

"The law says they (medicinal pot smokers) are allowed to do what they're doing, and yet there are so many barriers that make it almost impossible for them to be able to use medical marijuana," she said from her constituency office in Vancouver's east end.

"In effect, this government has abdicated its responsibility here ... They don't want to touch this (the medical marijuana file)," Davies said. "They think somehow they're going to be tainted by this and it's going to taint their ideology about drugs."

Federal Health Minister Tony Clement declined to comment, but a spokesman for his office did e-mail the Sun stating where licensed pot smokers can light up is provincial jurisdiction.

However, Margarett Best, the province's minister of health promotion, rejected the federal suggestion that it's Ontario's job to police where medical marijuana users can smoke.

The province's smoke-free Ontario legislation deals exclusively with tobacco smoke, Best said.

Not surprisingly since marijuana is a federally controlled substance and that only a federal exemption can allow people to access it, restrictions on the use of marijuana would be "under Health Canada's jurisdiction," she said.

The only explicit guidance merely recommends discretion and comes from a Health Canada form used by applicants for medical marijuana.

"Given the nature of marihuana (sic) and the fact that the provision of marihuana is for your personal treatment needs, Health Canada recommends not consuming this controlled substance in a public place," the application form states.

"Please take note that persons in charge of public or private establishments (e.g., bars and restaurants) can request that you not smoke marihuana on their premises, even if you have authority to possess marihuana for medical purposes. There may also be municipal bylaws that prevent smoking. In addition, others should not be exposed to second-hand marihuana smoke," it states.

The vagueness of Health Canada's guidelines, with words like "recommends" and "should," indicate for some at least it is possible federal laws could be tightened to restrict where the rapidly growing number of medical marijuana smokers in this country can light up.

And that is another issue.

The aging of the Baby Boom generation and increasing medical acceptance of the possible benefits associated with medical marijuana is creating demand for the drug.

The number of licensed users in Canada -- currently just under 2,500 -- has exponentially increased over the past six years by an average of 371 new licensed marijuana users per year.

But although licensed users number about 2,500, the Canadian Medical Association estimated in a 2001 journal article titled "Marijuana: Federal smoke clears, a little" that about 400,000 Canadians use cannabis for medical use.

The increase and the number of people who may be eligible to smoke marijuana legally, said celebrated pro-marijuana lawyer and Osgoode Hall law professor Alan Young, should get governments moving to not only clean up the legislation, but also legitimize marijuana's use in society.

"We know that the numbers in Health Canada's program ... can easily grow five-fold. At some point, we are going to have to tackle this issue about public medicinal use," he said, noting common sense could go a long way to balance everyone's rights.

Kindos, who is not against the idea of medicinal marijuana, said that's all he's wanted from the start -- clarification from the government about what's allowed and for everyone to use a little common sense when exercising their rights, whatever those may be.

"Just give me guidelines. When the federal government introduced this, why didn't they send us a package telling us what's allowed?" he said.

"When you have customers complaining about having to walk through marijuana smoke, you have to react. We more than accommodated him," he added. "He (Gibson) pushed the envelope ... He refused to move away from my front door, what was I supposed to do."

Even Canada's own Prince of Pot, Marc Emery, said common sense and reason are paramount in this issue to effectively balance everyone's rights.

"I don't see people with insulin bringing their syringes out in the middle of restaurants and giving themselves injections," Emery, who is facing a 10-year jail sentence at the U.S.'s behest for selling marijuana seeds, said from his home in B.C., noting that since Gibson was drinking alcohol at the time of the Burlington incident in 2005, he could have ingested the cannabis via an alcoholic tincture that would have been just as effective and more discreet.

"It's important, when you're a minority, to appear to be reasonable about your needs and requirements," he added. "Clearly, it's an imposition on businesses to have to monitor the quality of certain smokes outside their front door. That's unreasonable. When you're balancing your rights against the rights of others, there is a certain sense of reasonableness required."

But reason and common sense might not be enough to effectively manage not just the growing number of licensed users but also the corresponding increased demand to smoke in public, and at work.

Since the fall of 2006, Doug Hutchinson, a philosophy professor at the University of Toronto, has been allowed to smoke marijuana inside the walls of Trinity College.

He was the first of two professors in the city -- the other worked at York -- to be given a special ventilated room where they can treat themselves, as it were.


The situation south of the border isn't much clearer, despite the fact that California has begun dispensing medical marijuana in vending machines, and the country's second largest association of doctors, the American College of Physicians, recently stated they support greater use of marijuana for medicinal purposes and are encouraging the government to increase research into proper dosages and practices.

Although 12 states allow the use of medicinal marijuana, the federal government's Drug Enforcement Agency still deems its use criminal.

Conflicts there, like here, are being settled in court because no one, it seems, knows who is allowed to do what when it comes to medicinal marijuana.



The federal government could issue you a licence to smoke pot if you suffer from one of the following illnesses:

- Multiple sclerosis

- Spinal cord injuries or diseases

- Cancer


- Arthritis

- Epilepsy

- The government will also consider granting someone a licence who suffers debilitating symptoms from additional medical conditions if confirmed by a specialist.

- Marijuana is also sometimes used to treat glaucoma.

Source: Health Canada's website


Growth of number of licensed medicinal marijuana users in Canada

- October 2002, 405 people licensed in Canada to use marijuana for medical purposes.

- October 2003, 677

- October 2004, 747

- October 2005, 1,042

- October 2006, 1,468

- October 2007, 2,261

- February 2008, 2,432

Source: Health Canada's website
Copyright: 2008 Health Canada's website
Contact: Postmedia Solutions
Website: CANOE -- Toronto Sun: - Toke 'n' mirrors
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