By KIRK MAKIN
Globe and Mail Update
A federal scheme that supplies marijuana to those with serious medical
problems unconstitutionally forces users into the black market to obtain a
reliable supply, the Ontario Court of Appeal has ruled.
The court said the current federal licensing scheme obliges those who are
ill to act like criminals, obtaining illicit supplies "with all the risks of
tainted product this presents.
"Exposing these individuals to these risks does not advance the objective of
public health and safety," it said in a 3-0 ruling. "Rather, it is contrary
to it. Equally, driving business to the black market is contrary to better
narcotic drug control."
The court stopped short, however, of striking down the entire scheme. It
opted to tinker with the law to make it comply with the constitutional right
to life, liberty and security of the person.
The ruling effectively forces the government to make it easier to grow and
supply licenced marijuana to medicinal users, while at the same time
upholding the laws prohibiting pot possession.
It ends a period of chaos in which police essentially stopped enforcing the
marijuana possession law because of conflicting rulings as to its validity.
Lawyer Alan Young, who represented several of the litigants, said in an
interview that it will deplete much of the momentum behind the movement to
decriminalize recreational use of marijuana.
Sick people are now able to adequately obtain their own supply of marijuana,
he said, and the future of decriminalization will be largely on a societal
debate over the pros and cons of health and psychological effects of the
narcotic.
"The court called our bluff, so to speak," Mr. Young said. "Politically, we
lost big-time."
Specifically, the ruling removed:
The need for a second physician to endorse a patient's application to
receive medical marijuana.
"This requirement is at best redundant," the court said. "It adds no value
to the application and does little or nothing to advance the state
objective. In particular, it does nothing to promote public health and
safety."
A restriction that prevents designated, licenced growers from receiving
compensation for supplying marijuana to sick people eligible to receive it.
A provision that prevents licensed growers from raising marijuana for more
than one person.
A prohibition against licensed growers' producing marijuana in common with
more than two other growers.
Mr. Young said he expects to see large-scale cultivation operations apply to
the government for licenses to produce legal marijuana. He said that if they
are denied, the government had better have good reasons that will past
muster in the courts.
The appeal court said today's order will take effect immediately.
"Some of these people are terminally ill," it said. "To suspend our remedy
if they may die in the meantime is, in our view, inconsistent with
fundamental Charter values."
Mr. Justice David Doherty, Mr. Justice Stephen Gouge and Madam Justice Janet
Simmons emphasized that they were doing their best to respect the federal
government's right to legislate.
"This case is not about the social and recreational use of marijuana, but is
about those with the medical need to use marijuana to treat symptoms of
serious medical conditions," it said.
The judges said there is incontrovertibly "a strong body of opinion
supporting the claim that marijuana offers some individuals inestimable
relief from a variety of debilitating symptoms associated with serious
long-term illness such as AIDS, cancer and epilepsy."
At the same time, it said, scientists remain uncertain about health risks of
long-term marijuana use - and the federal government has genuine concerns
about rushing forward.
Today's ruling came after the federal government appealed a decision last
January in which Ontario Superior Court Judge Sidney Lederman ruled in
favour of seven ill people who sued the government for a legal source of
pot.
Judge Lederman said it was unfair to allow people to use medicinal marijuana
and yet compel them to purchase their supply on the black market because
they are not given access to a legal supply.
Judge Lederman set a deadline in July for the federal government either to
alter its regulations or to supply marijuana itself. The government
responded with a stopgap plan whereby it supplies pot to approved users.
The hurdles involved left some sick people complaining that they could not
gain to a legal supply of marijuana. Others did not apply to receive the
government-grown marijuana because of quality concerns.
So far, the pot is being grown in Flin Flon, Man., by a company on contract
to the government, but there has been considerable controversy about its
quality. Mr. Young said it will be a moot point, since the government is
bound to immediately end the operation.
While Tuesday's ruling is less broad than Judge Lederman's, it is likely to
meet with approval of most medicinal users.
While many find the criminal prohibition offensive, they were prepared to
settle for a relaxation in the strict eligibility requirements for approval
and the provision of a legal, affordable, and effective supply of pot.
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