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The context here is not simply that the marihuana prohibition exposes Parker, like all other users and growers, to criminal prosecution and possible loss of liberty.  Rather, Parker alleges that the prohibition interferes with his health and therefore his security interest as well as his liberty interest.  Related to this aspect of the case is that Parker does not seek to avoid the marihuana prohibition to assist in the treatment of some mild discomfort.  If it is not properly controlled, his seizure activity can be life-threatening.  Further, the evidence concerning the use of marihuana to assist in the treatment of other illnesses centred on patients with profound symptoms:  AIDS patients suffering from wasting disease, cancer patients receiving chemotherapy and patients suffering from glaucoma, to name just a few.

We were not directed to any common law history of entitlement to drug therapy.  The closest analogue is the doctrine of informed consent, which makes it a civil wrong to
impose treatment without the consent of the patient.  The patient may also demand that treatment, once commenced, be withdrawn or discontinued.  See Rodriguez at pp. 598-99.  While there is obviously a difference between a right to refuse treatment and a right to demand treatment, they can also be seen as two points on a continuum rooted in the common-law right to self-determination with respect to medical care.  This includes the right to choose to select among alternative forms of treatment.  pp 84+ pp 135, R. vs Parker, July 31, 2000.

Canadian AIDS Society Study Calls for Legalization of Compassion Clubs and Audit of Federal Medical Cannabis Program, June 14, 2006: A study released by the Canadian AIDS Society on Wednesday calls on federal Auditor General Sheila Fraser to conduct a performance audit of the federal medical cannabis program, and also recommends the legalization of compassion clubs as community-based medical cannabis dispensaries.   According to the study, over 85% of those suffering from HIV/AIDS who use medical cannabis currently obtain it from the black-market; and despite federal government spending of over $6 million on a cannabis production facility located in a mine in Flin Flon, Manitoba, less than 200 Canadians are currently accessing their medicine from Health Canada.  The study, which was funded by Public Health Agency of Canada, also recommends the legalization of compassion clubs, which currently help over 10,000 critically and chronically ill Canadians gain access to a safe source of cannabis and cannabis-based therapies. CAS web page.

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 the 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.   The premise underlying the MMAR, that seriously ill people, some of whom are so sick it is anticipated they will die within a year, can grow their own medicine, have a friend grow it, or get it on the black market, is puzzling.  It is explained, in our view, by the assumption implicit in the MMAR and specifically articulated by the Government in its factum, that those who will seek an ATP will be long-time medical marihuana users who have an established pattern of self-medication.  According to this assumption, these persons will have no difficulty filling their medical marihuana needs either through cultivation or from “unlicensed” reliable sources.  This first assumption reveals a second.  In relying on the scheme in the MMAR as an appropriate response to the problem identified in R. v. Parker, supra, the Government must assume that a segment of the black market has provided and will continue to provide a reliable and suitable source of medical marihuana for those in need.  pp 71 + 72, Hitzig et al. Oct 7, 2003.

TORONTO, Sept. 26: Yesterday the Conservative government announced spending cuts scheduled over the next two years. Funding for academic medical marijuana research - originally made available through the Medical Marijuana Research Program (MMRP), established in 2003 - was included in that list… Academic medical marijuana researchers can still apply for CIHR ("Canadian Institutes of Health Research") funding, but will no longer have access to these remaining undistributed funds that were available through the MMRP. Originally $7.5 million was allocated to this task, of which approximately $3.5 million has already been awarded to researchers such as Dr. Mark Ware, a pain physician at the McGill University Health Centre (MUHC) Pain Centre and principal investigator for the 3-year, 350-patient COMPASS trial. dpna.org

R. vs Brian Carlisle, Jan 17, 2003, Madam Justice Loo, B.C. Supreme Court
R. vs Noreen Eves, March 23, 2006, B.C. Provincial Court, Judge Doherty
Hitzig et al., Oct 7, 2003, Court of Appeal of Ontario, Justices Doherty, Goudge and Simmons JJ.A.
R. vs Grant Krieger, Sept 25, 2006, Provincial Court of Alberta, Judge Pepler
R. vs Grant Krieger, Dec 11, 2000, Court of Queen’s Bench of Alberta, Madam Justice Acton
R. vs Philippe Lucas, July 5, 2002, B.C. Provincial Court, Judge Higgenbotham
R. vs Terry Parker, July 31, 2000, Court of Appeal of Ontario, Justices Catzman, Charron & Rosenberg
R. vs William Small, June 27, 2000, Supreme Court of B.C., Justice Wong
R. vs Smith & Budda, Sept 7, 2004, B.C. Provincial Court, Madam Justice Chaperon
R. vs Smith, Jan 7, 2005, B.C. Provincial Court, Madam Justice Harvey
R. vs St. Maurice & Neron, Dec 19, 2002, Court of Quebec, Justice Cadieux
R. vs James Wakeford, May 6, 1999, Superior Court of Ontario, Judge LaForme
Young vs Saanich Police & Capital Region Housing Corporation, B.C. Supreme Court, Justice Macauley

International Hempology 101 Society

Cannabis Buyers' Clubs of Canada