External link to Hitzig V. Canada decision at CANLII
Newshawk: CMAP (http://www.mapinc.org/cmap)
Pubdate: Fri, 10 Jan 2003
Source: Toronto Star (CN ON)
Copyright: 2003 The Toronto Star
Author: Tracey Tyler
Bookmark: http://www.mapinc.org/mmjcn.htm (Cannabis - Medicinal - Canada)
JUDGE STRIKES DOWN RULES ON ACCESS TO MEDICAL POT
Forcing users to break law for supply ruled unconstitutional Possession may be legal if Ottawa doesn't find source, experts say
Ottawa has been given six months to come up with a way of ensuring sick Canadians have access to medical marijuana - including the possibility of setting up regulated distribution centres - or simple possession of the drug will become legal in Ontario, if not all of Canada, legal experts say.
In a long-awaited decision released yesterday, an Ontario Superior Court judge struck down federal rules governing access to medical marijuana, finding them unconstitutional because they force seriously ill people who use pot as medicine to break the law to obtain the drug.
Although Canadians who can prove a need for medical marijuana have a constitutional right to use it without fear of prosecution, there is still no way for them to obtain it legally under Medical Marijuana Access Regulations introduced 18 months ago by former Health Minister Allan Rock, Mr. Justice Sidney Lederman said.
As a result, those who have an exemption allowing them smoke pot legally - even grow it - must turn to the black market for everything from seeds to the finished product, he said, adding that it's no answer for Ottawa to shrug off the possibility that medical marijuana users could be charged criminally
Federal lawyers told Lederman during a hearing in Toronto last fall that Ottawa doesn't care how medical marijuana users get the drug.
"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," the judge said.
"Not only do they face the risks associated with consorting with criminals, and the possibility of prosecution ... but they have to deal with the uncertain quality of the product they are getting on the street."
The federal government has "numerous options" for ensuring a legal supply of marijuana is available for medical users, including utilizing a federally grown test crop as a source of seeds, he added. Ottawa might also consider creating properly regulated distribution centres or licensing so-called compassion clubs, as proposed in a recent Senate committee report, Lederman said.
Alex Swann, a spokesperson for federal Health Minister Anne McLellan, said justice department lawyers will have to study the decision before the government can offer meaningful comment.
The decision is a victory for 10 medical marijuana users and one "caregiver," who took the government to court alleging that any access to marijuana under the law was illusory.
"This is about being sick and having a choice," said an elated Alison Myrden, who has multiple sclerosis and says she would be constantly in a wheelchair "if it wasn't for medical marijuana."
But the potential implications go beyond the issue of medical marijuana alone, said lawyer Alan Young, who represented some of the 11 litigants.
If the federal government does nothing within six months, it will automatically be bound by a ruling from the Ontario Court of Appeal two years ago. In that decision, involving a Toronto man named Terry Parker who uses medical marijuana to treat symptoms of epilepsy, the court said the criminal prohibition on simple possession is unconstitutional without a mechanism for accommodating medical users.
Simple possession would become legal in Ontario and that development would have "ripple effects" across Canada, he said.
Young predicts Lederman's ruling will be a "death knell" for the law against simple possession. The Canadian medical profession estimates there are 400,000 medical marijuana users in the country. If the federal government has to find a way of getting pot to all of them, it may decide it's easier to give up on the law, Young said.
With files from Karen Palmer
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