Medical pot advocates won a landmark decision last week when Justice Sidney
N. Lederman of Ontario's Superior Court ordered the feds to fix a medical
marijuana regime he declared unconstitutional. The following is an excerpt
from his 40-page ruling.

The respondent in this case (the government) argued that the several
hundred kilograms of marijuana that have been harvested by Prairie Plan
Systems to date are intended for research purposes only. Minister (Allan)
Rock, however, is quoted as stating in Health Canada's December 21, 2000
"News Release" that: "This marijuana will be made available... to
authorized Canadians using it for medical purposes."

Although Health Canada's description of "How the Regulations Work" assures
holders of permits that they can obtain their medicinal marijuana by
growing it themselves, having a designated person grow it for them, or
possibly acquiring it from a licenced supplier in the future, the reality
is somewhat different.

In order to grow or obtain marijuana, licenced users and growers ultimately
have no choice but to turn to the black market to get seeds, plants or
dried marijuana.

While the Marijuana Medical Access Regulations (MMAR) permit the Minister
to import and possess marijuana seed "for the purpose of selling,
providing, transporting, sending or delivering" it to licenced dealers or
the holders of a licence to produce, the Minister... has not exercised her
discretion in this respect.

The result is something of an "absurdity," as Madame Justice Acton noted.
This sad state of affairs is at odds with both drug control and
compassionate access objectives underlying the MMAR.

The applicants assert that the MMAR throws up so many barriers to gaining
access to marijuana for medicinal use that this medicine effectively
remains unavailable to many seriously ill people.

The Controlled Drugs and Substances Act (CDSA) and the MMAR exempting
regime (also) exposes them to imprisonment..., deprives them of their
Charter right to make medicinal decisions of fundamental personal
importance, and infringes their right to make autonomous decisions with
respect to their bodily integrity.

The argument is also made that the MMAR establishes an illusory exemption
regime. Not only do many seriously ill Canadians still face the risk of
prosecution for their therapeutic use of cannabis, (but) even those who
gain authorizations to possess marijuana under the MMAR are denied access
to a legal supply of that medicine.

In the case at bar, all of the applicants, save Mr. Hitzig, wish to use
marijuana to treat illnesses with varying degrees or seriousness. Most of
them have tried traditional treatments and found them to be unsuccessful or
less successful than cannabis. Due to the inability of some of the
applicants to obtain permits under the MMAR, they still face the prospect
of imprisonment for drug offences under the CDSA.

The respondent, however, argues that the applicants without authorizations
to possess... simply have not tried to apply for permits or have been
unsuccessful in obtaining the requisite medical support because they have
not demonstrated a real, serious medical need to use marijuana.

I am wary of this argument.

Governments cannot insulate their laws from constitutional scrutiny by
claiming that individuals have not "engaged" a regulatory regime when it is
regulations themselves which limit how those individuals exercise their rights.

Under the MMAR, for instance, the Minister has delegated deciding whether
an applicant has bona fide medical need to use marijuana to physicians. The
medical profession has expressed serious reservations about the gatekeeping

Physicians can also be reported for contravening professional conduct
rules. In this respect, supporting marijuana use may place doctors in
conflict with provisions relating to the use of unapproved or "alternative"

Laws which put seriously ill, vulnerable people in a position where they
have to deal with the criminal underworld to obtain medicine they have been
authorized to take violate the constitutional right to security of the
person. They (also) have to deal with the uncertain quality of the product
they are getting on the street.

I have reservations about a regime which is supposed to grant legal access
to marijuana while controlling its illicit use, but instead grants legal
access by relying on drug dealers to supply and distribute the required

To my mind, this aspect of the scheme offends the basic tenets of our legal
system. It is inconsistent with the principles of fundamental justice to
deny a legal source of marijuana to people who've been granted permits and
licences to produce. Quite simply, it does not lie in the government's
mouth to ask people to consort with criminals to access their
constitutional rights.

Other applicants are unable to grow because of... the state of their
health. Ms. Stultz-Giffen, for instance, has multiple sclerosis. She is too
ill and weak to cultivate her cannabis.

Mr. Hitzig's testimony in relation to the home invasions and assaults he
has suffered while growing marijuana also speaks to the fears most
law-abiding individuals would have in involving themselves with marijuana
production (legal or not).

Regarding public health, I find it hard to see this goal being served when
seriously ill individuals are forced to rely on black-market drug dealers
to supply themselves with dried marijuana and seeds.

Pubdate: Thu, 16 Jan 2003
Source: NOW Magazine (Canada)
Copyright: 2003 NOW Communications Inc.