Jan. 9, 2003
The laws prohibiting marijuana possession in Canada continued to crumble Thursday as an Ontario judge declared unconstitutional Ottawa's scheme to allow the use of pot for medical reasons.
It's not fair to allow people to smoke medicinal marijuana, then force them to get the drug from the corner drug dealer, which is what the scheme effectively does, said Superior Court Justice Sidney Lederman. "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," Lederman wrote in a 40-page ruling.
"I have grave reservations about a regime which . . . grants legal access by relying on drug dealers to supply and distribute the required medicine."
Lederman gave the federal government six months to fix the regulations, after which time they will be "of no force and effect."
The decision is another clear sign that the laws prohibiting possession of small amounts of marijuana are toppling, said lawyer and long-time cannabis crusader Alan Young, who argued the case.
"It's another nail in the coffin, and this is a big nail," an elated Young said after learning of the ruling.
"We feel it will be appealed, but it's the light at the end of the tunnel . . .I can't really see the law maintaining any operation after this year. It's sitting on a really precarious foundation."
The regulations are supposed to give eligible people an exemption from the Controlled Drugs and Substances Act, the law which makes possession of pot illegal for everyone else.
Instead, Young argued in September, the regulations are so snarled in red tape that they discriminate against the very people they're supposed to help: those who smoke pot to ease the symptoms of their condition.
Since the Ontario Court of Appeal has already upheld the right of sick people to smoke pot to ease their symptoms, Young said the law will effectively be invalid if Lederman's ruling survives an appeal.
Young said he fielded phone calls all afternoon from supporters of his clients, seven people from across Ontario who use pot to contend with a variety of ailments, including multiple sclerosis and hepatitis C.
"Everyone's overjoyed; I'm getting calls from across the country from this pot world," Young said. "They can't get out of bed in the morning, but they can get this news very quickly."
Department of Justice spokeswoman Dorette Pollard said federal lawyers were perusing the judgment and expected to advise Health Minister Anne McLellan before the end of the day on what steps to take.
"They're reviewing the decision, and will advise the minister accordingly," Pollard said. They have 30 days to decide whether or not to file an appeal, she added.
The ruling is the latest blow to Canada's marijuana laws, which suffered a major setback earlier this month when a judge threw out possession charges against a 16-year-old boy in Windsor, Ont., on a technicality arising from the regulations.
In that case, the judge agreed with lawyer Brian McAllister's arguments that flaws in the medical-marijuana regime effectively negate the law's ability to prohibit possession of five grams or less of marijuana.
The Department of Justice has already filed an appeal in that case, even though Ottawa has already indicated it's considering the decriminalization of possessing 30 grams or less of marijuana.
Young argued in court last year that the regulations demand medical declarations that few doctors are willing to provide given the legal consequences.
They also make it impossible for a doctor to recommend a dosage, since the drug remains unregulated in Canada, he said.
There was no immediate word Thursday on whether the ruling forces the government to make available the marijuana it grew in a Manitoba mineshaft under a $5.7-million contract for clinical trials.
McLellan had refused to allow the marijuana to be distributed because
she says it simply isn't pure enough.
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