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Pubdate: Fri, 20 Sep 2002
Source: Globe and Mail (Canada)
Copyright: 2002, The Globe and Mail Company
Author: Gay Abbate
Bookmark: http://www.mapinc.org/mmjcn.htm (Cannabis - Medicinal - Canada)
SICK PEOPLE HAVE RIGHT TO USE POT, LAWYER ARGUES
Laws Governing Marijuana As Medication Violate Constitution, Ontario Court Hears
Marijuana helps Alison Myrden stay out of her wheelchair, she says.
She smokes the drug and puts it into her tea and muffins. She uses 12 grams a day to alleviate the pain from her various illnesses, including multiple sclerosis. Without the marijuana, the Burlington, Ont., woman said she would be wheelchair-bound and dependent on 32 pills and a large dose of morphine to get through each day.
Jari Dvorak says that marijuana alleviates his nausea so he can keep down the handful of pills he takes daily to fight HIV. He grows the marijuana on a Toronto balcony.
Marco Renda, 42, who has hepatitis C, smokes 10 joints a day to relieve nausea so he can eat and have the energy to run his business, he says. He grows his supply at his home near Dundalk, Ont.
All three were in a Toronto courtroom yesterday to hear their team of lawyers argue that federal regulations governing the use of medical marijuana violate their constitutional rights.
"This is about the right to make fundamental personal decisions," Toronto lawyer Alan Young told Mr. Justice Sidney Lederman of the Ontario Superior Court.
"Forcing the applicants by threat of criminal sanctions to refrain from using marijuana unless they meet criteria is a profound interference with the right to make personal decisions," he said.
Seven seriously ill people from across Canada and one caregiver launched the constitutional challenge against two federal laws, the Medical Marijuana Access Regulations, and the section of the Controlled Drugs and Substances Act that prohibits possession of marijuana. Three other individuals have joined the legal action, and the court is hearing all the challenges together.
As an alternative action, Mr. Young told Judge Lederman that he could use the Charter to compel Health Canada to distribute the marijuana being grown and harvested in a onetime mine in Flin Flon, Man., under a federal licence.
The regulations under attack were introduced by Parliament in July, 2001, after the Ontario Court of Appeal declared Section 4 of the Controlled Drugs and Substances Act to be invalid. The province's highest court gave the federal government 12 months to craft new legislation that allows seriously ill people to legally possess marijuana for medicinal purposes.
That legislation, Mr. Young told the court, is fraught with obstacles that make it difficult for ill people to obtain exemptions from criminal prosecution for possessing the drug. Depending on the illness, each sufferer may need two specialists to approve the exemption, a process that is long and difficult, especially for a person in a rural area or small town, Mr. Young said.
And fewer and fewer doctors are willing to sign exemptions, he said, because medical associations and the groups that provide malpractice insurance have warned physicians they could face legal action because of potential health risks associated with marijuana.
But Mr. Young said research shows there is no health risk, and he pointed out that Health Canada grants exemptions for the use of unapproved drugs such as heroin.
Health Canada has issued 299 exemptions for marijuana use, but the recipients have to grow their own or buy it through the black market because the federal government appears to have reneged on its promise to sell to those with exemptions the marijuana it grows in Manitoba, Mr. Young said.
Mr. Renda spent $300 on books to learn how to grow it, a time-consuming, strenuous process.
Ms. Myrden cannot grow her own because of her disability, even if she were able to obtain an exemption. So her mother and others buy it for her.
Growing or buying marijuana on the street can pose a health risk because of problems with strength and contaminants, Mr. Young said in defence of the government-sanctioned Manitoba operation where the marijuana is controlled.