Tuesday 1 August 2000
Janice Tibbetts, Calgary Herald With a report from David Heyman
Colleen Kidd, Calgary Herald / Calgarian Grant Krieger has been fighting to have the use of marijuana legalized for medicinal uses. Krieger suffers from multiple sclerosis and uses the drug to help cope with the symptoms of the disease.
Canadian Press / Terry Parker, who is at the centre of the marijuana ruling, watches as media interview his lawyers at Osgoode Hall in Toronto Monday.
In a ruling that takes a step toward marijuana legalization, a judge struck down the federal government's anti-possession law Monday for ill Canadians who smoke pot to ease their pain.
Justice Marc Rosenberg of the Ontario Court of Appeal, declaring the law violates the rights of sick people by forcing them to choose between "health and imprisonment," gave Ottawa one year to rewrite its legislation.
The ruling was a victory for Terry Parker, a 44-year-old Toronto man who smokes three to four joints a day to control severe epilepsy that even brain surgery and more than 100 hospital stays did not ease.
Parker, denouncing the federal Controlled Drugs and Substances Act for "sucking big time," will continue to grow his own marijuana.
He said it is the only drug that gives him relief from the repeated seizures, blackouts and vomiting he has suffered since childhood.
"It's been three years now . . . and there's not been one seizure," Parker, with his lawyer at his side, said outside the Court of Appeal.
Rosenberg, in striking down the act, goes further than a 1997 decision in which Parker was awarded a special exemption to the federal law.
In Calgary, marijuana crusader Grant Krieger called the Parker decision "excellent" and said it's encouraging for his four-year battle to use and distribute pot for medicinal purposes.
Krieger, who suffers from multiple sclerosis, will challenge the drug law in federal court in October.
If Health Minister Allan Rock does not act, the blanket prohibition on possession will be nullified and marijuana will be legal in Canada for everybody, including the healthy.
"It has been known for centuries that in addition to its intoxicating or psychoactive effect, marijuana has medicinal value," Rosenberg said in his 55-page ruling.
"I have concluded that forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person."
Rock started last year to award special exemptions to some ill Canadians who can prove they need to smoke marijuana to control diseases such as AIDS and cancer.
But Rosenberg rejected the requirement for the sick to seek federal permission to smoke.
"I have concluded that the possibility of an exemption . . . dependent upon the unfettered and unstructured discretion of the minister of health is not consistent with the principles of fundamental justice," he wrote.
Rosenberg suspended his ruling for a year to give Parliament time to revamp its law.
In the meantime, Parker "cannot be deprived of his rights," said Rosenberg, who gave the unemployed man permission to continue growing his own marijuana.
Parker, who survives on a disability pension, was arrested twice for cultivating pot, once after police raided his home in 1996 and seized 70 plants, also charging him with drug trafficking.
Officials at Health Canada and Rock's office would not comment Monday on the ruling.
It is not yet known whether the government will ask the Supreme Court of Canada to hear the case.
Although the judgment applies only in Ontario, the province's court of appeal is one of the most influential in the country and will likely have weight in other superior courts.
In a separate ruling, however, Rosenberg rejected an appeal from Chris Clay, a former London hemp store owner who was seeking the general legalization of marijuana.
His lawyers are expected to seek leave to appeal in the Supreme Court of Canada.
Krieger's lawyer, Adriano Iovinelli, says the Alberta and Ontario cases are quite different, noting Krieger is demanding the right to distribute and sell marijuana, not just use it, by arguing it's unfair to ask the sick to buy their medication from criminals.
Alberta Justice spokeswoman Jean Olynyk said the province won't comment until they can look at the details of the case.
Deputy Police Chief Rick Hanson, of the Calgary Police Service, said
officers will continue to enforce the existing marijuana laws until they
hear otherwise from the federal Crown prosecutor's office.