A Toronto man dying of AIDS has won a constitutional exemption from being prosecuted for using marijuana as medical treatment to relieve symptoms of his disease.

Saying he was ``personally impressed and comforted'' by the federal government's action on the medical use of marijuana, Mr. Justice Harry LaForme granted Jim Wakeford an interim exemption until Health Minister Allan Rock rules on the case.

``I'm in shock and I'm ecstatic,'' Wakeford, 54, said after yesterday's landmark ruling by the Ontario Superior Court judge. ``This is a big victory for a lot of people.''

LaForme had dismissed Wakeford's request for an exemption last fall when federal lawyers argued the terminally ill man should apply directly to Rock using a provision of the Controlled Drug and Substances Act.

But the judge decided to reopen the case after hearing new evidence last week that showed the government had never had an application process.

``They've been hoping that I'd croak along the way and it (the issue) would go away for a while,'' said Wakeford, who uses marijuana to stimulate his appetite and combat pain and nausea.

Wakeford dutifully applied to Rock for an exemption after LaForme's ruling last September, but his request has been in bureaucratic limbo.

Carole Bouchard, a senior health department official, testified last week that, although his application would be fast-tracked, she couldn't say when a decision would be made.

Despite the delays - it took the government two months to acknowledge Wakeford's application - LaForme said there has been progress. An application process was set up on the eve of last week's hearing.

But LaForme criticized the government for blatant unfairness in demanding Wakeford identify the source of his marijuana supply in conjunction with his application.

``Given that there are no legal sources of marijuana in Canada, I would hope that Mr. Wakeford would not be jeopardizing his application by exercising his legal right not to answer what I view as an unfair question.''

Wakeford's lawyer, Alan Young, said LaForme's ruling will have implications for 20 other Canadians with chronic or terminal illnesses who have applied to Rock for the same type of exemption.

``This exerts tremendous pressure on the government, because I would think the government would like to have control of this process, rather than have it thrust on them by a court of law,'' he said.

Derek Kent, a spokesperson for Rock, called the ruling a positive development that underscores the government's good faith on the issue.

But the federal government is appealing a lower court decision in 1997 to stay marijuana possession charges against Torontonian Terry Parker, who uses the drug to cope with epilepsy.

``I have a lot of problems with (claims of) `good faith,' '' said Young. One example of ``bad faith'' by the government is the Parker appeal, he said.

Another is Bouchard's admission health officials have not spoken with their counterparts in the justice department about a moratorium on charging people who smoke pot for medical reasons, Young said.

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