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Cabinet tweaks medical marijuana rules after losing court case

By admin | June 10, 2009

Court challenge aims to legalize all cannabis use

Advocates say previous rule a ‘mockery’

Shannon Kari, National Post
Published: Monday, June 01, 2009

Mario Anzuoni, Reuters
Health Canada has faced court challenges over medical marijuana eight times and has lost all of them. In each case the decision came because the court felt regulations were too restrictive for those …

Medical marijuana advocates are planning a court challenge aimed at legalizing all cannabis use, in response to the latest restrictions announced by Health Canada.

The federal government announced last week that it would allow designated producers to grow marijuana for as many as two medical users, instead of a maximum of one, permitted under the old regulations.

Here is a link to some more information from Health Canada:

The previous rules were ruled unconstitutional by a Federal Court of Canada judge in January, 2008, because they did not provide for a sufficient legal supply of cannabis for medical users without having to use the black market.

Health Canada appealed unsuccessfully to the Federal Court of Appeal and Supreme Court, which refused in April to hear the case.

It was the eighth time in the past decade that Health Canada has lost in court trying to uphold its medical marijuana policies and regulations, each time over restrictions on supply.

The federal government’s decision to allow producers to grow for no more than two users is a “mockery” of the courts, said lawyer Ron Marzel, who was part of the successful Federal Court challenge to the previous regulations.

The most recent restrictions for medical producers that were struck down were virtually identical to ones that were found to be previously unconstitutional by the Ontario Court of Appeal. The rules “create an alliance between the government and the black market,” to supply “the necessary product” wrote the appeal court in October, 2003.

One option for medical users is to go back to the Federal Court to ask it to find that the two-to-one ratio is also invalid.

However, the response from Health Canada would likely be to start another round of appeals in court, observed Mr. Marzel.

“It is time for the vicious cycle to end. It means we have to take it to the next level, to show the government it cannot thumb its nose at our courts,” said Mr. Marzel.

The lawyer explained that he is organizing a court challenge this summer on behalf of a number of people in Ontario facing marijuana trafficking charges, and has asked that all charges be dismissed.

If he is successful, it would effectively mean that there is no prohibition on possessing or producing marijuana, for medical or recreational use.

“This is the only way. The courts have repeatedly given the government time to come up with a workable solution. They didn’t do it. Health Canada has brought this upon itself,” suggested Mr. Marzel.

For several months in Ontario in 2003 there was no valid prohibition against simple possession of marijuana, as a result of a Superior Court decision related to the flaws in the medical marijuana regulations.

Similar arguments will be made by Mr. Marzel in asking a court to strike down all prohibitions, unless Health Canada enacts regulations that allow for a legitimate supply for medical users.

May 25, 2009

Cabinet tweaks medical marijuana rules after losing court case

By Tim Naumetz

OTTAWA — The federal cabinet has responded to an adverse court ruling by increasing the number of medical marijuana users a licensed grower may supply – to two from one.

The slight increase, to be announced this week, has prompted fierce criticism from MPs and advocates for the freer use of marijuana to alleviate symptoms for a range of illnesses.

Cabinet recently approved the change in response to a Federal Court ruling last year that struck down the previous limit of one licensed patient per producer as a violation of the Charter of Rights and Freedoms.

“From one to two patients, that’s just insane,” said Eric Nash, a licensed Vancouver Island marijuana supplier under the Marijuana Medical Access Regulations.

Nash said he and his partner, who cultivate organic marijuana through a company called Island Harvest, have been limited to one patient each, despite several hundred requests for help from approved marijuana users under the regulations.

A Federal Court of Appeal judge ruled in January 2008, that the limit of one patient per producer violated the right to life, liberty and security of the person guaranteed by the Charter of Rights.

Justice Barry Strayer cited the government’s own statistics showing that the stringent limit on patients per producer was forcing thousands of marijuana users to buy it illegally, a further violation of constitutional rights.

The Supreme Court of Canada last month dismissed the government’s application for leave to appeal Strayer’s ruling.

The new regulation will not be published until later this month, but a Health Canada spokesman confirmed the new limit is two patients per licence producer.

“As a result of (the Federal Court ruling), the government has moved quickly to address this regulatory void and has modified the (regulations) to allow one designated person to now produce marijuana for up to two authorized persons,” spokesman Philippe Laroche said in an email.

“This modification is currently in force.”

New Democrat MP Libby Davies called the government response “abysmal,” arguing it will likely also be struck down by the courts eventually.

She said Health Canada is aware thousands of medical marijuana users are obtaining the drug through “compassion clubs” that have proliferated over the years.

But she and Nash said those organizations must obtain their marijuana, which is not regulated for quality or safety, from the black market.

“From the beginning, the federal government has been dragged kicking and screaming into accepting the use of marijuana for medical reasons,” said Davies.

Liberal MP Keith Martin, who has tabled a private bill proposing the de-criminalization of marijuana, said the new limit demonstrates the Conservative government is unwilling to separate concerns over illegal drug use and medical marijuana.

“They lump them all in together,” said Martin.

Copyright © 2009 The Canadian Press. All rights reserved.

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