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Smoking out Ottawa’s stance on marijuana

By Hempology | October 10, 2003

From the Globe and Mail, October 10th, 2003

By Colby Cosh, Edmonton

As a Western “right-winger” (that’s a verbal shoe I wear willingly, even though it
pinches), I know I’m supposed to feel unfomfortable at the sight of judicial fidgeting
with our laws. But sometimes, when judges give legislators a particularly well-merited
tounge-lashing, I just feel like sitting back with a big tub of popcorn and cheering
on the Men (and Ladies) in Black. Case in point: Tuesday’s Hitzig v. Canada decision
fromt he Ontario Court of Appeal.

The Hitzig affair is a much-publicized set of challenges to medical-marijuana regulations;
for a brief period, they had the effect of preventing Ontario police from enforcing the
law against simple possession of pot. Warren Hitzig and his co-respondents are
medical-marijuana advocates who raised a question when the federal government first decided
to license the stuff: Where the heck are we supposed to get it? The patients’ license to
smoke came with the hypothetical right to grow pot themselves, but not everyone has a
green thumb. They could also deputize someone else to grow it, as long as no money changed
hands and the grower wasn’t producing for anyone else. Just try asking your next-door
neighbour for a favour that size. “Hey, can I borrow your snowblower? Also, I need to
start a ganj factory in your basement.”

The government had wisely admitted what wide experience suggests: that marijuana is usefil
in alleviating some medical conditions, such as chronic nausea in chemotherapy patients.
In licensing sick people to obtain an effective and benign drug, the Hitzig group argued,
Ottawa was relying on the existence of a marijuana market on one hand while suppressing it
under criminal alw on the other. The federal government’s response was, more or less,
“So what, cancer boy?” Check out the Hitzig ruling’s summary of the government’s argument
(don’t ask me why it’s always spelled “marihuana” in official documents):

“The Government accepts that reliance on the black market to fill a medical need would
in most cases raise supply problems. It maintains, however, that marihuana is unique in
that there is an established part of the black market, which the Government calls
‘unlicensed suppliers,’ that has for many years provided a safe source of medical
marihuana. The government argues argues that those who want to use marihuana for medical
purposes have been ‘self-medicating’ for years and know full well where to go to obtain
the necessary medical marihuana. It is the Government’s contention that this particular
part of the black market does not present the problems that are generally associated with
purchase of product on the black market.”

If I were a habitual pot smoker, this paragraph would make me think I’d overdone it. (Does
Ottawa really think the market for marijuana doesn’t obey the economic laws other
extra-legal markets do?) In this Hitzig matter, and in parallel cases outside Ontario,
the government has never succeeded in accounting for the contradiction between licensing
possession of medical marijuana and forbidding its sale or its production in any reasonable
quantity. It even admits that the illegal supply is safe. Delightfully, the Appeal Court
referred to all this as an “absurdity,” as the trial judge previously had.

The Court – acting in an admirably humble spirit – decided to remedy the absurdity in the
least activist way as possible. It didn’t blast Canada’s marijuana law to bits, as the
trial judge and your correspondent would have preferred. It merely altered the regulations
to allow a licensee’s appointed grower to be compensated, and to allow one grower to act
for many licensees at once. What this points to, in two words, is “compassion clubs” – the true
crux of the case, and the part that causes sleepless nights in Ottawa.

The federal government is trying to ifnd middle ground between legalizing marijuana for
medical use and letting it pervade Canadian society to a degree that would cause apoplexy
in American law-enforcement circles. Those who want pot for illness believe, reasonably,
that they should be allowed to unite their grow licenses in one set of caring, expert
hands. I suspect that the Liberal government’s heart really is in the right place on this
issue (along with its brain, for once), despite its formal position and legal tactics.
What’s in the background is the reflexive, ferocious American hysteria about mind-altering

That hysteria has traceable roots in the experince of the American urban underclass. We must
try to understand, and sympathize. But even in the throes of a “war on terror,” the
southern republic seems to judge its friends by how “Serious” they are about fighting drugs
– and only police methods are an acceptable currency of friendship. The creation of
storefront “compassion clubs” in Canada, which Hitzig seems to render nearly inevitable,
will be denounced by American cops and officials. But sometimes it’s more important to
set a good moral example than be a good friend.

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