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Judges rule an end to the pot party
Appeal court restores law
Victory for medical users
TRACEY TYLER
LEGAL AFFAIRS REPORTER
The party's over.
The province's short-lived flirtation with wide-open marijuana use ended yesterday when the Ontario Court of Appeal restored a federal narcotics law making marijuana possession a criminal offence.
While the decision was a setback for recreational pot smokers ? and a political defeat for those fighting to reform Canada's drug laws ? many medical marijuana users were treating it as a major victory.
The court made it easier for medical users to obtain a reliable supply of the drug by allowing licensed growers to produce plants for more than one person, potentially through large-scale farming operations, and to be compensated for their labour.
The decision also removes a requirement that would-be medical users need a second medical specialist to support their application.
Existing federal rules governing medical marijuana use were unconstitutional because they forced people with serious illnesses to turn to illicit black-market sources, in violation of their right to life, liberty and security of the person, the court said yesterday in a decision written collectively by Mr. Justice David Doherty, Mr. Justice Stephen Goudge and Madam Justice Janet Simmons.
"Requiring law-abiding citizens who are seriously ill to go to the black market to fill an acknowledged medical need is a dehumanizing and humiliating experience," the court said. "Equally, driving business to the black market is contrary to better narcotic control."
The decision upholds a ruling made by Mr. Justice Sidney Lederman of the Superior Court of Justice last January in the case of 10 sick people and one "caregiver" who wanted Ottawa to supply them with the drug.
However, while Lederman struck down the existing rules, the appeal court decided instead to fix the problem by rewriting the regulations governing the possession and growing of medical marijuana in a way that removes barriers to the drug and makes the scheme constitutionally valid.
As a result, the law making it a crime to possess marijuana for any other purpose ? invalid since July 31, 2001 ? went back on the books, effective yesterday.
Changes to make the drug more accessible to medical users also take immediate effect. "Some of these people are terminally ill" and it would be "inconsistent with fundamental Charter values" if they were to die while waiting for changes to be made, the court said.
The decision opens the door to medical marijuana users from coast to coast getting cheap drugs from "compassion clubs," which, to date, have been considered part of the black market.
It's ironic the government has told medical users to turn to the black market, yet shut down many compassion clubs, "presumably because they contravene the law," the court said, dismissing the government's appeal of Lederman's ruling.
"The best thing that comes out of this is that it's a green light for rebuilding and expanding compassion centres across Canada," said law professor Alan Young, who represented several of the litigants.
"They're giving us an opportunity to ... create an underground economy, which we couldn't do before.
"We can, if we play this right, set up warehouses with thousands and thousands of plants for ourselves and the prices should come right down," he explained to clients who gathered at the court to obtain a copy of the 98-page ruling, released in conjunction with decisions in three other related cases.
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`Instead of throwing out the baby with the bathwater, they just changed the bathwater.'
Lawyer Alan Young
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In an interview later, Young said he can easily envision at least 50 of the 500 Canadians currently licensed to grow marijuana getting involved in perfectly legal, large-scale grow operations, which could yield between 3,000 and 5,000 plants.
The number of plants they are allowed to grow is based on the user's prescribed dosage.
If the product wasn't grown under licence for medical use, "three to five thousand plants would get you penitentiary time right now," he said. "That's when you're considered to be an organized crime-biker type."
Marco Renda, of Dundalk, Ont., who uses pot to battle hepatitis C, called the decision to let growers cultivate for more than one person "perfect."
Joyce Myrden, whose daughter Alison combats symptoms of multiple sclerosis with marijuana, said while medical users didn't succeed in striking down the law, the decision is a "step" in the right direction and "gives Alison something to keep fighting for."
Young said the court delivered a "clear judgment" that removes the "chaos" that developed from recent court rulings over the question of whether possessing small amounts of marijuana is legal. It is also "a very clever decision," he said, because "this court caught on to what we were trying to do."
His clients hoped that if the courts found the federal rules unconstitutional, prohibitions against marijuana possession would fall by the wayside, making pot-smoking legal across the board. The court settled on a less drastic remedy by rewriting the rules.
"Instead of throwing out the baby with the bathwater, they just changed the bathwater," Young said. "Politically, we've lost."
However, the court also confirmed that, prior to yesterday's ruling, the law prohibiting marijuana possession had been "of no force or effect since July 31, 2001" ? leaving a big question mark as to what that means for charges still in the system or those that have already resulted in convictions.
Justice Minister Martin Cauchon, who has introduced a bill to decriminalize the possession of small amounts of marijuana, called yesterday's ruling "a good decision" but says the government still has to consider its next step.
Young said convictions imposed in the past 26 months are "null and void."
The period of invalidity stems from a ruling the appeal court made three years ago in a case involving Terry Parker, a Toronto epileptic who uses marijuana.
Mr. Justice Marc Rosenberg gave the federal government a year to come up with a viable scheme that would allow would-be medical users to apply for permission to use marijuana legally.
Rosenberg said if a workable scheme wasn't in place by July 31, 2001, the blanket ban against pot possession would cease to exist.
The legal battle isn't quite over.
The Supreme Court of Canada could rule this fall on a challenge to the laws banning recreational pot smoking, brought by Christopher Clay, who owned a store in London, Ont., called the Great Canadian Hemporium.
With files from Les Whittington
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The Haves have not a fucking clue!
-Vedder, PJ
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day 1 he led a huge rally to have everyone smoke pot in front of the capitol building, as well as in front of as many cops as possible, as well as in front of as many govt officials as possible, just saying NAH NAH
capitolist piece of shit he is, he's at least partially responsible, i'm sure.
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Raadt
-- The information I provide is only information from readings, growing of gourmet mushrooms, and second hand stories--
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