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“Hitzig Decision”

By Hempology | November 8, 2003

pp. 23, 71,117, and 65 of Court of Appeal for
Ontario ref. C39532: C39738: C39740
ATP LICENSES: CALL Health Canada 1-866-337-7705

|23] 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 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.

The application record offers some support for this contention. Many of the applicants do have well-established “friendly” sources in the black market from which they can safely acquire reliable medicinal marihuana. It is ironic, given the Government’s reliance on this part of the black market to supply those whom the Government has determined should be allowed to use marihuana that the police, another arm of state, shut down these operations from time, presumably because they contravene the law.
[71] The record here makes clear that these limitations on supply in the MMAR present real and significant challenges to ATP holders. Many individuals who establish requisite medical need under the MMAR and obtain ATPs will have to go to the black market on a more or less regular basis to maintain their supply of medical marihuana. As the Government acknowledged in argument, the MMAR scheme assumes the existence of the black market in marihuana.

Indeed, it depends on the black market. Without the black market, the scheme set out in MMAR would be a sham. In short, in their actual operation, the MMAR require what is as far as we know, a unique partnering of the Government and the black market to fill serious and recognized medical needs.

[117] A Government scheme that depends on the criminal element to deliver the medically necessary product, and that drives those in need of that product to the black market strikes at the same values that underlie the state’s obligation to obey the law. The MMAR far from placing the Government in the position of a positive role model or on the moral high ground, are calculated to bring the law into disrepute and devalue the worth and dignity of those individuals to whom the MMAR are applied. The Government’s obligation to obey the law must include an obligation to promote compliance with and respect for the law.

|165] Taking these considerations together, we conclude that the remedy which most directly addresses the constitutional deficiency presented by the absence of a licit supply of marihuana is to declare invalid sections 34(2), 41(b) and 54 of the MMAR. This will allow the DPL holders to be compensated, to grow for more than one ATP holder, and to combine their growing with more than two other DPL holders.

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