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  1. Motorhead
    Ontario is one step closer to the legalization of marijuana after the Ontario Superior Court struck down two key parts of the Controlled Drugs and Substances Act that prohibit the possession and production of pot.

    The court declared the rules that govern medical marijuana access and the prohibitions laid out in sections 4 and 7 of the Act “constitutionally invalid and of no force and effect” on Monday, effectively paving the way for legalization.

    If the government does not respond within 90 days with a successful delay or re-regulation of marijuana, the drug will be legal to possess and produce in Ontario, where the decision is binding.

    The ruling stemmed from the constitutional challenge of Matthew Mernagh, a man who relies on medical marijuana to ease pain brought on by fibromyalgia, scoliosis, seizures and depression.

    The Ontario Court of Appeal had previously recognized that to deprive someone with a serious illness of medical marijuana if it relieves their pain is a violation of the Canadian Charter of Rights and Freedoms. As a result of that, the federal government created the Marijuana Medical Access Regulations to let people legally get, possess and grow marijuana if they have a licence supported by a medical doctor.

    Health Canada’s medical marijuana program regulates and approves which growers patients can buy from and how much they’re legally allowed to use for their treatment.

    However, Justice Donald Taliano wrote in his decision on Monday that Mr. Mernagh — a well-known marijuana advocate who has been charged for possession and production of marijuana numerous times — has been unable to get a doctor to sign off on a medical marijuana licence.

    “Doctors often have a great deal of difficulty with this and have in many cases blatantly outright refused to sign these forms,” says Jacob Hunter, the policy director for the Vancouver-based Beyond Prohibition Foundation, which fights for the legalization of marijuana.

    It’s meant many Canadians waiting to be accepted into the medical marijuana program seek out medical marijuana without a licence, at times leading to possession and production-related arrests.

    Mr. Mernagh’s criminal charge is permanently stayed, Justice Taliano wrote in his ruling, and he is granted a “personal exemption” to buy or produce marijuana during the 90 days given to the government in order to submit its challenge.

    The decision is a huge win for legalization supporters and for medical marijuana patients.

    “I think it represents a dramatic step forward for critically and chronically ill Canadians,” B.C. lawyer and Foundation executive director Kirk Tousaw said Tuesday night. “It is undoubtedly going to progress through the court system … but it’s gratifying to see a court has accepted what so many thousand medical marijuana patients have been saying for years — that it’s incredibly difficult if not impossible to access medical marijuana.”

    He compared the case to that of Henry Morgentaler, the abortion doctor and advocate whose constitutional win eventually led to the widespread legalization of abortion, one that “became legal without any real regulatory scheme surrounding it,” Mr. Tousaw said.

    Anti-drug action groups and others against the legalization of marijuana have said legalizing marijuana could lead to widespread use and increase crime rates.

    Mr. Tousaw said that if unchallenged, the Ontario ruling could have a ripple effect across Canada.

    “I would argue that if marijuana is legal in Ontario, you can’t realistically have it illegal in the rest of the country.”

    Sarah Boesveld
    The National Post
    April 13, 2011


  1. Terrapinzflyer
    Pot laws ruled unconstitutional

    An Ontario Superior Court judge has ruled that the federal medical marijuana program is unconstitutional, giving the government three months to fix the problem before pot is effectively legalized.

    In an April 11 ruling, Justice Donald Taliano found that doctors across the country have “massively boycotted” the medical marijuana program and largely refuse to sign off on forms giving sick people access to necessary medication.

    As a result, legitimately sick people cannot access medical marijuana through appropriate means and must resort to illegal actions.

    Doctors’ “overwhelming refusal to participate in the medicinal marijuana program completely undermines the effectiveness of the program,” the judge wrote in his ruling.

    “The effect of this blind delegation is that seriously ill people who need marijuana to treat their symptoms are branded criminals simply because they are unable to overcome the barriers to legal access put in place by the legislative scheme.”

    Taliano declared the program to be invalid, as well as the criminal laws prohibiting possession and production of cannabis. He suspended his ruling for three months, giving Ottawa until mid-July to fix the program or face the prospect of effectively legalizing possession and production of cannabis.

    The judge’s decision comes in a criminal case involving Matthew Mernagh, 37, of St. Catharines who suffers from fibromyalgia, scoliosis, seizures and depression.

    Marijuana is the most effective treatment of Mernagh’s pain. But despite years of effort, he has been unable to find a doctor to support his application for a medical marijuana licence.

    Mernagh resorted to growing his own cannabis and was charged with producing the drug.

    Taliano found doctors essentially act as gatekeepers to the medical marijuana program but lack the necessary knowledge to adequately give advice or recommend the drug. He also found that Health Canada has made “no real attempt to deal with this lack of knowledge.”

    Taliano said the issue is Canada-wide.

    Twenty-one patients from across the country testified in the case, saying they were rejected by doctors a total of 113 times.

    One Alberta patient was refused by 26 doctors; another in Vancouver approached 37 physicians without finding a single one to sign off on the form.

    Patients also face lengthy delays — as long as nine months — in having their medical marijuana applications processed by Health Canada.

    “The body of evidence from Mr. Mernagh and the other patient witnesses is troubling,” Taliano wrote. “The evidence of the patient witnesses, which I accept, showed that patients have to go to extraordinary lengths to acquire the marijuana they need.”

    Lawyer Alan Young, a longtime advocate of marijuana legalization, said the ruling is a step in the right direction.

    “It’s significant because it’s a Superior Court ruling which has binding effect across the province,” Young said.

    “By enacting a dysfunctional medical program the government now has to pay the high cost of losing the constitutional authority to criminalize marijuana.”

    He said the real test, however, will be whether the judgment stands up in the Ontario Court of Appeal.

    “If the government is not successful on appeal, they are going to be caught between a rock and a hard place because they don’t have an alternative program in mind,” he said. “They don’t have a plan B. They’re in trouble.”

    The medical profession has been wary of the medical marijuana program since it came into effect in August 2001.

    On May 7, 2001, the Canadian Medical Association wrote a letter to the federal health minister expressing concerns with recommending a drug that has had little scientific evidence to support its medicinal benefits.

    “Physicians must not be expected to act as gatekeepers to this therapy, yet this is precisely the role Health Canada had thrust upon them,” the letter stated.

    Jennifer Yang
    Staff Reporter

  2. Motorhead
    This is great news, and the timing of the ruling is great as well. We are in the middle of a general election, our fifth since 2000, and the new government won't even be back to work until sometime after election day, May 2nd.

    For all the bark you hear coming from Stephen Harper, our Conservative Prime Minister, about getting 'tough on crime', the tories have been running a minority government for years, and most of the legislation that they have introduced trying to harden marijuana criminalization(Bill C-25, C-15, S-10) has met resistance from the opposition and died one way or another.

    This is one of the most boring and stagnant election campaigns I can remember, and It's highly likely we will see another minority Conservative government. 'Fixing the problem' essentially means reworking the legislation on the CDSA, and I don't see that happening with the current political situation and the time allotted.

  3. Motorhead
    As smoke clears, Tories, Liberals react to pot ruling

    A day after an Ontario court stayed charges of growing and possessing marijuana against him, Matthew Mernagh wasted no time exercising his newly acquired freedom to consume medicinal cannabis, setting some seeds germinating in a paper towel and paying a visit to Vapour Central in downtown Toronto.

    The same ruling that granted Mr. Mernagh, who suffers from seizures and fibromyalgia, the right to use the drug to manage his symptoms also struck down the government’s medicinal marijuana program – arguing it was too difficult for patients to obtain the necessary licence to use cannabis legally – and ruled the country’s laws against possessing and growing the drug unconstitutional.

    “It’s unbelievable. It feels like we won the Stanley Cup and brought it home,” said Mr. Mernagh, 37, as he celebrated with supporters. “We’re all just sitting here, awestruck.”

    But while he was free to partake immediately, the rest of the ruling will not come into effect for three months, leaving other medicinal users without licences to wait and see whether the government would appeal the ruling or re-tool the program.

    Previous court decisions on the subject have either faced appeal or forced the government to change the law to help medicinal users obtain cannabis.

    On Wednesday, civil servants refused to tip their hands as to which path they would follow this time. Political parties vying for power, however, suggested they were open to rewriting the rules.

    The Public Prosecution Service, which must decide whether to appeal the case, declined to comment on what it would do. A spokeswoman for Health Canada said it was too soon to say what would happen.

    The Conservatives, meanwhile, said plans to overhaul the Marihuana Medical Access Regulations were already being worked out.

    “We are disappointed with this decision,” wrote Tim Vail, a spokesman for Tory Health Minister Leona Aglukkaq, in an e-mail. “We are currently considering longer-term measures to reform the medical access program and its regulations.”

    Mr. Vail refused to specify what those measures are.

    The Liberals issued a similar response, reiterating their opposition to legalizing the drug, but leaving the door open to decriminalizing possession of small amounts and revisiting the regulations for medicinal users.

    “We need to study the decision in more detail,” said party spokesman Michael O’Shaughnessy. “In government, we would work with the Department of Justice and Health Canada to see what could be done to ensure the system works efficiently for Canadians in need of this treatment.”

    The NDP campaign could not be reached for comment.

    Mr. Mernagh’s lawyer, meanwhile, said he expected the government would appeal, which would mean the ruling would not come into effect until after the case was decided in a higher court. In the meantime, however, the current decision could help people facing similar charges in Ontario by setting a legal precedent they could raise in their own cases.

    “Anyone currently facing growing or possession charges can say ‘I am being charged under a law that’s been found to be unconstitutional,’” said Paul Lewin.

    One of those people is Robert Neron, a resident of a small northern town near Kapuskasing. He has been licensed to use marijuana to relieve his cervical dystonia for more than a decade, but says Health Canada has taken more than seven months to process his application to renew his licence and, while waiting on the renewal, police seized his plants and charged him. He is due in court next week.

    “I hope all my charges will be dropped – [the Mernagh decision] will have an impact on my case,” he said. “This court just reaffirmed what we’ve been fighting for all these years.”

    Mr. Mernagh, for his part, said he was ready to continue the legal battle to make sure he and other medicinal users can get their pot. Marijuana is the only drug that’s helped control his pain while still allowing him to function, he said.

    “This is my medicine of choice and I wouldn’t know what to do without it,” he said.

    Adrian Morrow
    The Globe And Mail
    April 14, 2011
  4. Motorhead
    Ottawa weighs appeal after Ontario judge rules against medical marijuana program

    TORONTO — Ottawa is considering whether to appeal an Ontario court ruling that if left to stand could make the possession of marijuana legal in the province, officials said Wednesday.

    "The government of Canada is reviewing the decision and will consider its options," Leslie Meerburg, spokeswoman for Health Canada, said in an email.

    Justice Donald Taliano gave Ottawa until July to fix the federal medical marijuana program or face the prospect of effectively legalizing possession and production of cannabis.

    In a ruling released earlier this week, Taliano found the program to be unconstitutional because sick people cannot get access to medical marijuana through appropriate means and must resort to illegal actions such as growing their own supply.

    As a result, ill people who should be able to get the drugs are branded as criminals, he said in the decision.

    The St. Catharines justice declared the program to be invalid, as well as the laws prohibiting possession and production of cannabis, since they can be used to criminally charge medical users unable to get the drugs through legal avenues.

    If left to stand, the decision — which takes effect in 90 days — would make possession and production of marijuana legal in Ontario, said Alan Young, a Toronto lawyer involved in several other challenges to Canada's cannabis law.

    That would encourage judges in other provinces strike down the law in their jurisdictions when confronted with similar cases, he said.

    The matter would likely end up before the Supreme Court of Canada, which can rule on federal laws, he said.

    "Health Canada has no Plan B," Young said Wednesday. "So the knee-jerk reaction will be to appeal" and fight vigorously to obtain a stay of judgment that would keep the law in place until the appeal is resolved, he said.

    "This case is just exposing the tip of the iceberg in terms of potential litigation against the government of Canada, so they can defend this all they want by appealing, but they're not going to escape the onslaught," he added.

    "It makes more sense to concede defeat, surrender and come up with something that really helps Canadians."

    The judge’s decision came in a criminal case involving Matthew Mernagh, 37, of St. Catharines, who suffers from fibromyalgia, scoliosis, seizures and depression.

    Unable to find a doctor who would support his application for a medical marijuana licence, Mernagh began to grow his own and was eventually charged with producing the drug.

    Taliano found that doctors across the country widely ignored Health Canada's medical marijuana program and refused to sign off on forms that allow sick people to legally obtain cannabis.

    Mernagh's lawyer, Paul Lewin, said he's confident the decision will be upheld by the Ontario Court of Appeal.

    Meanwhile, Mernagh has been granted an exemption that allows him to smoke and grow cannabis.

    "I've already started sprouting seeds," he said.

    Canada's medical marijuana program was created in 2000 after the Ontario Court of Appeal upheld a Toronto man's right to smoke pot to alleviate his epileptic seizures.

    In that case, the court gave Ottawa a year to change the law so that sick people could access the drugs they need, or see it struck down altogether.

    Paola Loriggio
    The Canadian Press
    April 14, 2011
  5. Motorhead
    I have added a good news video on this story here in the news archive.

    Matt Mernagh and others speak about the decision, and there is some decent footage from inside Toronto's Vapor Central lounge. And I love how the reporter lights a joint for Matt!
  6. Motorhead
    Ottawa appeals ruling that could lead to legalization of marijuana in Ontario

    TORONTO — Ottawa is appealing an Ontario court ruling that, if left to stand, could make the possession of marijuana legal in the province.

    The Public Prosecution Office of Canada announced Tuesday that it has filed a notice of appeal with Ontario's top court in respect to Justice Donald Taliano's April 11 ruling.

    The appeal states that Taliano made critical errors in law by declaring the federal medical marijuana program unconstitutional.

    Taliano ordered that Ottawa fix the program by July or face the prospect of effectively legalizing marijuana.

    The judge's decision came in a criminal case involving Matthew Mernagh, 37, of St. Catharines, who was unable to obtain a medical marijuana licence.

    Mernagh's lawyer, Paul Lewin, has said that he's confident the decision will be upheld by the Ontario Court of Appeal.

    Mernagh, who suffers from fibromyalgia, scoliosis, seizures and depression, began to grow his own pot and was eventually charged with producing the drug.

    In a ruling released last week, Taliano says sick people cannot get access to medical marijuana through appropriate means and must resort to illegal actions such as growing their own supply.

    As a result, ill people who should be able to get the drugs are branded as criminals, the decision said.

    The St. Catharines justice declared the program to be invalid, as well as the laws prohibiting possession and production of cannabis, since they can be used to criminally charge medical users unable to get the drugs through legal avenues.

    Taliano found that doctors across the country widely ignored Health Canada's medical marijuana program and refused to sign off on forms that allow sick people to legally obtain cannabis.

    Mernagh has been granted an exemption that allows him to smoke and grow cannabis.

    The Canadian Press
    April 19, 2011
  7. Terrapinzflyer
    Editorial: Time to debate new pot laws

    A grown-up discussion of marijuana laws would be welcome during the election campaign. The current approach isn’t working, as two recent news stories have demonstrated.

    Last week, the Ontario Superior Court found Canada’s laws against possessing and growing marijuana are unconstitutional. Justice Donald Taliano found the federal government allows medical marijuana use, but has created regulations that make access difficult and sometimes impossible, which violates patients’ rights.

    Until that is fixed, people have the right to grow and possess marijuana, the court found. Taliano gave the government three months to appeal or change the regulations; the government, predictably, has chosen to appeal.

    And also last week, B.C. Hydro said it is suing grow-op owners who bypassed power meters to steal electricity. It’s pursuing 19 claims for $2.1 million, or an average of $110,000.

    B.C. Hydro also repeated its estimate that grow-ops are stealing $100 million worth of electricity a year. (That estimate has climbed as the Crown corporation attempts to justify its $1-billion smart-meter plan.)

    Using B.C. Hydro’s figures for average grow-op power use, that means there are about 17,000 grow-ops stealing electricity in B.C. Other operators take the chance of paying for power or using generators. And there are roughly 4,000 outdoor grow-ops, according to research.

    That means there are more than 22,000 marijuana grow-ops in the province. At least 40,000 people are likely employed, at least part-time, just tending the plants. The legal agriculture sector employs 32,000.

    That suggest several realities. First, there is an enormous market for marijuana, inside and outside the province, which indicates many people don’t believe it should be illegal and ignore the law.

    Second, we are asking police and the courts to take on a hopeless task. There would never be enough resources to find 22,000 grow-ops.

    And third, we are following a drug policy that does not work. It hasn’t reduced marijuana use. It has cost billions in enforcement, court and prison costs. And it has created a lucrative revenue stream that has funded the growth of criminal gangs across Canada.

    It has now been 39 years since the LeDain Commission of Inquiry into the Non-Medical Use of Drugs reported. After three years of hearings and research, it recommended the federal government decriminalize marijuana and that provinces introduce controls on use, possession and production. In short, treat marijuana like alcohol. The commission also recommended the federal government continue research on the impact of the changes on use and possible problems.

    It’s widely accepted — including by courts, health experts and the public — that marijuana is less harmful than tobacco, alcohol and hard drugs. It poses less risk of addiction, damaged health or social problems, and use does not lead to crime or violence or other drugs.

    That is not to say that it is entirely benign. Any intoxicant has negative effects for some people.

    But there is no fact-based case for treating it differently than alcohol or wasting so much money on ineffectual enforcement of laws that lack public support.

    There has been little discussion of the issue.

    The Conservatives oppose decriminalization because it “sends out the wrong message,” according to Rob Nicholson, who was justice minister. It’s unclear what that message is. The party also favours tougher punishment, including mandatory jail time for anyone growing six or more pot plants.

    The Liberals oppose the mandatory jail time, but don’t support broader decriminalization. The New Democrats propose decriminalizing possession, but would apparently continue current policies on grow-ops and sales.

    Only the Greens have proposed legalizing, regulating and taxing marijuana.

    We are spending billions on policies that have failed for decades. It is past time to consider and discuss new approaches.

    APRIL 22, 2011

  8. Balzafire
    Locked in litigation

    Medical marijuana users have sued the government because they believe the system doesn't work. In many cases, the court has agreed. Yet there's a reluctance in Ottawa to loosen laws any further

    [imgl=white]https://www.drugs-forum.com/forum/attachment.php?attachmentid=20374&stc=1&d=1306259474[/imgl]Before Cheech and Chong, Bob Marley, Bob Dylan, Lenny Bruce and the Beats -before them all, Doukhobors in southeastern B.C. were into pot. The transplanted Russian pacifist Spirit-Wrestlers weren't getting high and giggling so much as they cultivated cannabis as a folk remedy and soothing tea.

    They knew what many ancient peoples and cultures recognized. Long before governments in the last century criminalized and banned the cultivation, possession and sale of marijuana, the weed was renowned from the great steppes of Asia to the breadbasket of the Mediterranean for its medicinal properties -salve for whatever ailed you.

    Marijuana has been part of the Chinese pharmacopoeia for millennia. And with the rise of AIDS, wasting diseases and myriad cancers at the end of the last century, thousands rediscovered its therapeutic aspects only to find the anti-pot prohibition also made a crime of their relief. A doctor can prescribe methadone and a host of opiate-based narcotics or similar drugs, but patients are denied access to a relatively benign plant largely because of fears surrounding its legalization.

    In the 1990s, the seriously ill and dying began fighting for a legal exemption to the criminal law, demanding the right to obtain whatever balm they might from marijuana without fear of prosecution.

    Two decades later, the litigation continues -there are numerous cases before the courts as patients clamour for easier and broader access to their medication of choice and the government plays deaf despite its legal losses.

    In the most recent case, Matthew Mernagh -an Ontario man suffering from fibromyalgia, scoliosis, seizures and depression -maintained he couldn't get his medication and was facing criminal prosecution because the program didn't work.

    Ontario Superior Court Justice Donald Taliano listened to him, as well as patients from across the country, and found their complaints justified.

    He concluded legitimately sick people cannot access medical marijuana through appropriate means and must resort to compassion clubs or the street corner, risking arrest and criminal charges.

    While Health Canada's testimony about the program was not "wrong or intentionally misleading," Justice Taliano preferred the evidence of the sick, the dying and the independent experts.

    On April 11, he ruled that unless the government addressed the legislative flaws within three months the criminal law would be struck down.

    But Ottawa has appealed, so patients' complaints remain unaddressed.

    There is tremendous political resistance to implementing a workable medical program because it will make enforcement of the criminal law all but impossible. For the government and police, medical pot is a Trojan horse for legalization, given the expected demand for what its champions say may be a new Aspirin.

    If cannabis is accepted as stress relief, menstrual cramps and the ever-lengthening list of ailments it supposedly soothes, most recreational users could then claim they are patients.

    That is why the government has balked time and again at loosening the regulations.


    Fraser Valley lawyer John Conroy says federal prosecutors and bureaucrats are defending an unworkable status quo. He hailed the Ontario ruling and thinks it may prompt change.

    "After 40 years [of fighting for marijuana legalization]," he laughed, "I expected change to come when I was much younger."

    Conroy led the final, failed over-the-top charge to overturn the 90-year-old, anti-cannabis criminal law by recreational users. But that died in a 6-3 decision from the Supreme Court of Canada in 2003.

    The high bench supported Parliament's right to enact without debate in 1923 the consolidated Opium and Narcotic Drug Act, which criminalized possession of pot, or "marihuana" as it is known legally.

    After that decision, the only legal issue to be resolved around cannabis was the nature and extent of an ailing individual's constitutional right to access given its therapeutic value.

    It was one thing to tell the proverbial Big Lebowski he had no right to smoke pot because it enhanced bowling and munching Nachos, but what about a wasted AIDS patient who needs it to quell nausea? Pro-marijuana arguments mounted from a health context are much more persuasive and compelling. Rather than sparking a laugh, they draw at heartstrings.

    Over the last decade, the medical marijuana forces have won time and time again in the courts. Nevertheless, the federal government has responded glacially to the judicial prodding, primarily because it always follows the U.S. lead on drugs -Canada banned pot due to a racist anti-Mexican campaign in America in the 1920s. Up until the 1950s, only a handful of charges had been laid across the country.

    On this issue, Ottawa walks in U.S. footsteps.

    The California Compassionate Use Act of 1996 was the world's first medical marijuana law allowing "seriously ill" patients access to the illicit drug -without fear of arrest and imprisonment -on the recommendation of a doctor.

    Hawaii was next, and a dozen states followed suit, even though in 2005 the U.S. Supreme Court said American federal law enforcement agencies could prosecute despite state-exemption laws.


    Until President Barack Obama took office, the U.S. federal government insisted there was no such thing as medicinal cannabis. Obama said that would change.

    "If it's an issue of a doctor prescribing medical marijuana to a glaucoma or a cancer patient ... really, there's no difference between that and the doctor prescribing morphine or anything else," he said shortly after his election.

    Obama wasn't willing to spend "political capital" on marijuana reform, but neither would he waste "Justice Department resources to circumvent state law."

    But as more states move to establish medical marijuana programs and discuss issues such as reciprocity (allowing a patient from one state to buy marijuana from a dispensary in another), the regulation of largescale farms and big-box stores devoted to selling grow operation equipment, the White House has grown more and more uptight.

    The staggering economic potential of medical marijuana is driving change quickly -for instance, Oakland's Harborside Health Center, the biggest of the California's numerous dispensaries, has an estimated $22 million in annual sales.

    Even the most liberal President in memory has grown wary: Is it too much, too fast?

    Recently, his Department of Justice sent letters with various warnings to officials in California, Colorado, Montana, Rhode Island and Washington State. The U.S. attorneys said they now would consider civil or criminal charges against patients even if they had state exemptions and companies supplying them.

    The memos led Washington State Gov. Chris Gregoire to shy away from a proposal to create licensed marijuana dispensaries on the other side of the Peace Arch. Scores of state-licensed medical marijuana providers now have been raided nationwide under the Obama administration. Why the about-face?

    The U.S. Attorney for Oregon told reporters the medical program was a "train wreck" and that he was skeptical the majority of people obtaining pot actually need it.

    Attorney Dwight Holton said California, a state of 37 million, has 46,000 pot permittees compared with Oregon's 39,000 -which is about one per cent of that state's population of 3.8 million. He said people who are suffering from lifethreatening illnesses should have access, but that the number of registered medical marijuana patients was alarming.

    "You can get it for pain and nausea," Holton said. "I have pain. I'm 6-5, and I fly in planes, in coach class. I don't think they had me in mind when they passed this."

    Los Angeles DA Steve Cooley wants to shut down all the dispensaries to prevent what seems to be looming de facto legalization.

    Medical marijuana hit the Canadian legal radar in July 2000 when the Ontario Court of Appeal issued the first ruling linking the constitutional validity of the criminal law to the existence of a medical exemption protecting patients' rights.

    An epileptic who could only alleviate his suffering with marijuana, Terrance Parker argued the cannabis prohibition violated the Charter of Rights and Freedoms because it did not respect his right to medication.

    The court agreed the law must be thrown out or amended. But the ruling was suspended for one year to give Ottawa a chance to respond.

    Exactly one year later, the federal government introduced the Medical Marihuana Access Regulations, and Canada became the second country in the world with a governmentrun cannabis health program.

    The regulations created an exemption to the criminal law allowing approved patients to possess and grow their own cannabis. It also exempted gardeners to grow pot for approved patients, established rules for how many plants could be grown, and allowed for site inspections and criminal-records checks.

    At the same time, the government also awarded Prairie Plant Systems of Saskatoon a contract to grow pot to sell to qualified patients.


    From the start, however, doctors dragged their feet collectively when asked to approve patients. Despite a body of research demonstrating the efficacy of cannabis, it is not the type of medicine with which allopathic physicians are comfortable. Smoking, the main contemplated way of consumption, also made them cringe, but Ottawa made no provision for extracts such as oils and edibles.

    The Canadian Medical Association strongly recommended its members not participate and warned they could be at professional and legal peril. The Canadian Medical Protective Association, the profession's collective legal defence fund, similarly cautioned its 60,000 members -about 95 per cent of practicing physicians.

    Despite taking an oath to do no harm, they were being asked to prescribe and endorse a largely untested and unapproved drug without any safeguards.

    By far, the vast majority of physicians have refused to participate in the program.

    On top of that, many patients thought the government's pot was sub-par, some couldn't afford the cost, sick and dying people were waiting far too long for the bureaucracy to process their paperwork ...

    Jeannine Ritchot, Health Canada's director of the bureau of Medical Cannabis, told the Ontario court in Mernagh's trial many of the problems had been resolved and the wait time for an exemption was only six weeks.

    Ontario Justice Taliano said her evidence was "neither convincing nor credible."

    He said the doctors' broad refusal to participate in the program is "a perfect complement to Health Canada's policy of maintaining a tight, almost miserly control over the distribution of marijuana."

    The numbers alone expose the failure: Based on compassion club estimates, as many as one million people across Canada could benefit from the therapeutic properties of cannabis. After 10 years, the government program serves perhaps 10,000 at most, according to the most recent figures posted by the department, less than one per cent.

    The illegal compassion clubs serve far more in part because they provide a menu of cannabis products and strains compared with the official singlestrain. Plus, most don't demand to see a federal exemption; a doctor's note will suffice, sometimes less.

    Conroy says you couldn't have designed a worse system. Nothing accords with common sense. The government determines how many plants you can grow based on a grams-per-day dosage without any reference to varietal potency, how much usable pot various strains produce, and other concerns.

    Some cannabis plants, for instance, flower and mature as dwarfs, harvestable without growing above a foot-anda-half; others flourish like sixfoot-plus Christmas trees.

    Then there are questions about the potency -those with high THC content compared with those with a lower level of the chemical that gives pot its kick.

    "The regulations don't take into account the size of the plants or the number of lights, all of these sorts of things," Conroy explained. Nor do they take into account what to do when you end up with far more than you need or are authorized to possess.

    "The transition between one crop and the next doesn't seem to be properly allowed for. There are lots of problems leading to excessive amounts that growers are supposed to throw out."

    The RCMP say too much of that excess is making its way onto the black market, and the force regularly raids legal growers over reports they are over-producing.

    A few years ago, the Mounties shut down the Victoria Island Compassion Society's grow operation, and recently raided the North Island compassion club. As a result, lawyers have been litigating for patients and on behalf of compassion clubs, which want to legally provide cannabis so patients don't have to learn to hoe, buy the government's swag, or frequent street dealers.

    "The main issue is supply," Conroy said. "That's the elephant in the room. Marijuana or cannabis seems to be the only drug that if your doctor approves your use, it still takes you six months or more to fill the prescription [depending on waiting times for an exemption and the growing season for the plants]."

    He had a client who had a prescription from his doctor to use marijuana, had applied to Health Canada for an exemption, and had begun to grow what he hoped would be his medicine. But a month before Ottawa sent him a permit he was busted and charged with cultivation. His case is before the courts.

    The program also has given rise to a new passel of legal issues, such as workplace litigation over approved medical users failing urine tests and related suits. Should teachers with a medical permit be allowed in classrooms, lawyers in a courtroom? Can a legal patient drive a car while smoking their medication?


    The government's response to the push for medical marijuana has been slow-footed, and appears cruel and unusual to some judges. In 2007, the Ontario Court of Justice said Ottawa hadn't drafted the law properly and medical exemption was inadequately worded. The government diddled.

    In Sfetkopoulos v. Canada, on Jan. 10, 2008, the Federal Court struck down the regulation prohibiting a producer from growing for more than one person. The government shuffled its feet. How about two? Three?

    In August 2008, the federal court of appeal affirmed Sfetkopoulos, but tight growing regulations remain, farms and largescale production outlawed.

    Still, the federal government maintains it is meeting its constitutional responsibility by providing access to marijuana. Health Canada says there is no onus on it to market the drug or educate doctors.

    Eric Nash, a Vancouver Island-based consultant who has long lobbied for a commercial grow industry, testified in the most recent Ontario case involving Mernagh and is sanguine, notwithstanding that public stance and the appeal.

    "Current federal government strategy meetings are redefining the future of cannabis," he said after participating in private talks afterwards with senior officials. "The meetings are productive, addressing issues of public health, safety and security, reasonable access, examining overall costs to the government, and creating cannabis industry opportunities."

    He is optimistic because he believes time is running out for Ottawa.

    The courts are doing a slow burn over the federal decision to litigate rather than fix the medical program, and others are complaining, too.

    Municipalities are up in arms at what they consider the irresponsibility of urging thousands of patients to turn their homes into grow operations.

    "I think the problems are overblown but genuine, to the extent of damage to houses by mould and things like that," Conroy acknowledged. "Some people grow it well; some don't. The identification of grow ops that then leads to some people ripping them off because they're easier to knock over than banks is another problem you don't want in a residential area."

    Individuals should still be allowed to grow small amounts for medical purposes but, like Nash, Conroy thinks large operations should be established in agricultural or industrial areas subject to bylaws and zoning regulations.

    Marijuana should be distributed through pharmacies, also to normalize it like other drugs, Conroy believes.

    "Doctors prescribe all kinds of other drugs that are far more serious in terms of impact and sideeffects than cannabis. But the response of the federal government has been intransigent and raises a lot of cynicism and skepticism about their intentions with relation to the entire program."


    Kirk Tousaw, one of the upcoming generation of lawyers, also thinks a sea-change is occurring. "The Ontario decision represents a critical turning point for ensuring access to medicinal cannabis," he said.

    "Patients and physicians have been telling the government for years that the program was not working. The decision validated these complaints and, unlike patient concerns, can't be ignored by Health Canada." The weight and force of the judicial rulings is overwhelming Ottawa.

    "The system of personal and designated production is under constant attack," Tousaw said. "There's marginalization and discrimination from police and municipalities, most notably in the Lower Mainland of B.C., and the courts are fed up with that."

    He explained that when producers try to meet bylaw and zoning requirements, they are greeted with hostility and outright refusals to issue permits -even when they have reports from licensed contractors and engineers.

    "I am currently litigating a human rights action against the City of Surrey in one such case," he said -and there are more than 2,000 licensed producers in the province. "Health Canada should be strongly considering licensing the existing [compassion club] dispensaries as sources of supply. Bring them into the light instead of forcing them into the shadows."

    He noted there are other cases before the courts attacking Health Canada's continuing restrictions on grow-operation size and the apparent arbitrary, illogical ban on extracts and edibles.

    Patients should not be required to grow their own medicine, rely on a friend to grow their medicine or deal with the black market, Tousaw said.

    Nor, he said, should doctors be forced to prescribe a drug whose dosage levels are unknown, whose effects are unknown and whose long-term outcomes are unknown. The government should also allow naturopaths and doctors of traditional Chinese medicine, both of whom already have limited prescription writing authority in B.C., to approve cannabis treatments, which would eliminate the problem of using solely medical doctors as gatekeepers.

    "Tinkering with the rules, ignoring patient concerns, listening to law enforcement fearmongering rather than legitimate suggestions for improving the system," Tousaw paused, "if that trend continues, we can expect more litigation."

    And that's exactly what is on the horizon -because the solution seems to lead exactly to what neither Washington nor Ottawa want: The end of the criminal prohibition.

    By Ian Mulgrew
    Vancouver Sun Columnist
    May 24, 2011
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