cannabisnews.com: Law Against Marijuana Struck Down in Ontario





Law Against Marijuana Struck Down in Ontario
Posted by FoM on August 01, 2000 at 08:23:18 PT
Amend statute or face legalization, Ottawa told
Source: Globe & Mail
Ontario's highest court has declared the law prohibiting the possession of marijuana unconstitutional, and has given Ottawa a year to amend it or lose it. The Ontario Court of Appeal said the year is to give Parliament a chance to fill the void. Meanwhile, marijuana possession is still illegal.The court ruled yesterday that the law fails to recognize that marijuana can be used for medicinal purposes by the chronically ill.
Upholding a lower-court decision in the case of Terrance Parker, a 44-year-old epileptic who won a 23-year court battle for the right to smoke the drug to control his seizures, the appeal court declared the marijuana possession section of Canada's Controlled Drugs and Substances Act invalid. Advocates for decriminalization of marijuana hailed the decision as a "huge" victory, not just for people whose doctors back their claims to need the drug to treat illnesses, but for recreational smokers, too."If Parliament doesn't amend the law and rectify the problem with medical exemptions, then everyone will be entitled to smoke marijuana legally in 12 months," lawyer Alan Young told reporters.Ottawa avoided grappling with the thorny issue of abortion in just this way, Mr. Young pointed out.When the Supreme Court of Canada ruled in Regina vs. Morgentaler that prohibiting a woman from terminating a pregnancy violated her fundamental right to security of the person, the government did not rewrite its legislation."They didn't return to it and therefore we don't have a criminal law relating to abortion," Mr. Young said.There are now three options presenting themselves to the federal government: appealing the decision, accepting it and rewriting the law within the one-year period to provide for medicinal uses, or allowing the law to be struck down, effectively legalizing marijuana. The third route is considered highly unlikely.Health Canada spokeswoman Roslyn Tremblay said the government's lawyers would study the decision before advising on a course."It would be speculating to say what they'll do. Fortunately, they've got a year to look at it," she said. "They'll take time to review the judgment very carefully and look at what action will be taken."In 1997, Mr. Parker became the first Canadian allowed to smoke and cultivate marijuana with impunity when the Ontario Superior Court ruled that he needed it to control his illness and that the prohibition infringed his rights under Section 7 of the Charter of Rights and Freedoms. The court stayed charges laid against him when police raided his 73-plant hydroponic garden.However, the Crown appealed on several grounds: that he had not proven marijuana was the only treatment that could help him; that he could have used a legal, synthetic version of the plant's active ingredient; and that he could have applied for an exemption from the Controlled Drugs Act through the federal Minister of Health.Yesterday, a three-judge panel of the appellate court rejected all three arguments.Justices Marc Rosenberg, Marvin Catzman and Louise Charron said they were satisfied with the factual evidence that Mr. Parker needs to smoke marijuana for his health, and that the drug causes relatively little harm.They also found that the federal Health Minister's exemption program fails to provide a safe, legal supply of the drug for people who need it for medical reasons."The possibility of an exemption . . . that is dependent upon the unfettered and unstructured discretion of the Minister of Health is not consistent with the principles of fundamental justice," they said.An estimated 150,000 people in Ontario need medicinal marijuana to ease the symptoms of AIDS, cancer treatment, glaucoma and epilepsy, but the Health Minister has granted only about 50 exemptions to date.Lawyers for medicinal marijuana users say applications for exemptions go into a "black hole" at Health Canada."Hundreds of people get no response from the government to their applications," said Aaron Harnett, who represented Mr. Parker at the appellate court. "They're sitting there, sick and waiting, and the court has said the government must stop their punishment, their imprisonment."Mr. Young added that the government must provide a supply of legal marijuana to patients if its exemption policy is to have any meaning.Exemption from prosecution is useless if you cannot obtain a supply of the drug, he said.As a result of the ruling, Mr. Parker can continue to grow and use marijuana without fear of being raided and prosecuted for one year.Other medicinal users charged during that time will not be prosecuted until Ottawa either amends the law or mounts an appeal to the Supreme Court of Canada.A wan-looking Mr. Parker told reporters yesterday that he is thankful for the Ontario court's decision in his case, but won't be content until all Canadians have the right to use marijuana without prosecution.By Jane GaddThe Globe & Mail: With reports from Rod Mickleburgh in Vancouver and Mark MacKinnon in Ottawa.Contact: letters globeandmail.ca Forum: http://forums.theglobeandmail.com/Published: Tuesday, August 1, 2000 Copyright © 2000 Globe Interactive Related Articles & Web Site:Health Canadahttp://www.hc-sc.gc.ca/english/Court Strikes Down Marijuana Possession Law http://cannabisnews.com/news/thread6577.shtmlOntario Court Says Law Against Marijuana Unconstitutionalhttp://cannabisnews.com/news/thread6576.shtmlOntario Court of Appeal Upholds Decision http://cannabisnews.com/news/thread6571.shtmlCannabisNews Search - Canadahttp://cannabisnews.com/thcgi/search.pl?K=Canada
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Comment #1 posted by FoM on August 01, 2000 at 10:41:02 PT
Anti-Marijuana Law Ruled Unconstitutional
Published: Tuesday 1 August 2000Contact: letters theherald.southam.ca Calgary Heraldhttp://www.calgaryherald.com/Janice Tibbetts, Calgary Herald With a report from David Heyman In a ruling that takes a step toward marijuana legalization, a judge struck down the federal government's anti-possession law Monday for ill Canadians who smoke pot to ease their pain. Justice Marc Rosenberg of the Ontario Court of Appeal, declaring the law violates the rights of sick people by forcing them to choose between "health and imprisonment," gave Ottawa one year to rewrite its legislation. The ruling was a victory for Terry Parker, a 44-year-old Toronto man who smokes three to four joints a day to control severe epilepsy that even brain surgery and more than 100 hospital stays did not ease. Parker, denouncing the federal Controlled Drugs and Substances Act for "sucking big time," will continue to grow his own marijuana. He said it is the only drug that gives him relief from the repeated seizures, blackouts and vomiting he has suffered since childhood. "It's been three years now . . . and there's not been one seizure," Parker, with his lawyer at his side, said outside the Court of Appeal. Rosenberg, in striking down the act, goes further than a 1997 decision in which Parker was awarded a special exemption to the federal law. In Calgary, marijuana crusader Grant Krieger called the Parker decision "excellent" and said it's encouraging for his four-year battle to use and distribute pot for medicinal purposes. Krieger, who suffers from multiple sclerosis, will challenge the drug law in federal court in October. If Health Minister Allan Rock does not act, the blanket prohibition on possession will be nullified and marijuana will be legal in Canada for everybody, including the healthy. "It has been known for centuries that in addition to its intoxicating or psychoactive effect, marijuana has medicinal value," Rosenberg said in his 55-page ruling. "I have concluded that forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person." Rock started last year to award special exemptions to some ill Canadians who can prove they need to smoke marijuana to control diseases such as AIDS and cancer. But Rosenberg rejected the requirement for the sick to seek federal permission to smoke. "I have concluded that the possibility of an exemption . . . dependent upon the unfettered and unstructured discretion of the minister of health is not consistent with the principles of fundamental justice," he wrote. Rosenberg suspended his ruling for a year to give Parliament time to revamp its law. In the meantime, Parker "cannot be deprived of his rights," said Rosenberg, who gave the unemployed man permission to continue growing his own marijuana. Parker, who survives on a disability pension, was arrested twice for cultivating pot, once after police raided his home in 1996 and seized 70 plants, also charging him with drug trafficking. Officials at Health Canada and Rock's office would not comment Monday on the ruling. It is not yet known whether the government will ask the Supreme Court of Canada to hear the case. Although the judgment applies only in Ontario, the province's court of appeal is one of the most influential in the country and will likely have weight in other superior courts. In a separate ruling, however, Rosenberg rejected an appeal from Chris Clay, a former London hemp store owner who was seeking the general legalization of marijuana. His lawyers are expected to seek leave to appeal in the Supreme Court of Canada. Krieger's lawyer, Adriano Iovinelli, says the Alberta and Ontario cases are quite different, noting Krieger is demanding the right to distribute and sell marijuana, not just use it, by arguing it's unfair to ask the sick to buy their medication from criminals. Alberta Justice spokeswoman Jean Olynyk said the province won't comment until they can look at the details of the case. Deputy Police Chief Rick Hanson, of the Calgary Police Service, said officers will continue to enforce the existing marijuana laws until they hear otherwise from the federal Crown prosecutor's office.Copyright © 2000 Calgary Herald New Media 
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