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Marijuana Ruling a Victory for the Ill

By Hempology | October 8, 2003

From the Globe and Mail, October 8th, 2003

By Kirk Makin, Justice Reporter

A federal program to supply marijuana to the seriously ill dehumanizes users by forcing them onto the black market to obtain a reliable supply, the Ontario Court of Appeal has ruled.

It said bedridden patients have little choice but to acquire criminal contacts and tolerate the high costs, inherent dangers and interruptions of an underworld supply.

Yesterday’s 3-0 ruling allows ill people to grow their own supply or obtain it from designated growers. At the same time, it upheld the law prohibiting possession of the drug.

The judgment ends a period of chaos in which some police forces had virtually stopped enforcing the possession law after a ruling in 2000 that the government’s Controlled Drugs and Substances Act was unconstitutional because it failed to provide an exemption for medical use. The federal government appealed.

“As of 9 a.m. this morning, the free season on marijuana is over,” lawyer Alan Young said. “The deficiencies in the law have been cleared up by the court.”

The ruling leaves uncertain the thousands of charges laid during a two-year period in which the law was held to be invalid.

And it opens the door to large-scale, private cultivation to supply large numbers of people whose pain is alleviated by marijuana.

Mr. Young, who teaches at York University’s Osgoode Hall Law School and represents seven people who want the right to a legal supply of medical marijuana, said the ruling ends Ottawa’s controversial growing program in Flin Flon, Man. “As we speak, I’m sure they are dismantling it,” he said.

Mr. Young said he will pursue a licence for a group of well-heeled, “reputable” individuals who want to set up a massive medical-marijuana operation.

Rather than striking down the entire federal scheme yesterday, the appeal judges whittled away several provisions related to medical marijuana use to make it comply with Charter guarantees of life, liberty and security of the person.

Health Minister Anne McLellan said she was “heartened” that the court upheld the medicinal access regulations, even if it did strike down some provisions.

Mr. Young said that while the ruling helps the ill, it is a defeat for marijuana reformers. He said the court was able to uncouple the vexing problem of medicinal marijuana from the overall issue of recreational use.

Momentum is now likely to drain away from the campaign for decriminalization, Mr. Young said. With the future of a federal decriminalization bill now clouded, Mr. Young said, the best hope for marijuana enthusiasts may be a constitutional challenge the Supreme Court of Canada is considering.

Justice Minister Martin Cauchon had little to say yesterday other than
to observe: “It is quite clear that the vehicle that we have chosen in order to give access to medicinal use of marijuana — which is a regulation — has been declared valid by the courts.”

In their ruling, the Court of Appeal judges, Mr. Justice David Doherty, Mr. Justice Stephen Gouge and Madam Justice Janet Simmons, sympathized with seriously ill patients. “Exposing these individuals to risks does not advance the objective of public health and safety,” they said. “Rather, it is contrary to it. Equally, driving business to the black market is contrary to better narcotic drug control.”

They excised from the law:

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