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October 8/03
Ont. court ruling reinstates pot possession law
CTV.ca News Staff
The federal government's latest attempt to patch the constitutional holes burning through its medical marijuana program has been rejected. And in the process, the Ontario Appeals Court has again made the possession of small amounts of pot illegal.
In its decision, the Ontario Court of Appeal struck down unconstitutional aspects of Ottawa's Marijuana Medical Access Regulations (MMAR) because they impair patients' access to a safe and legal supply of the drug.
Those provisions include restricting licensed growers of medical marijuana from being paid for their product, from growing the drug for more than one qualified patient and from pooling resources with other licensed producers.
While those who are government-approved will be able to grow marijuana, Ontario's possession laws, which were effectively suspended last year, will come back into effect.
"This narrow remedy would create a constitutionally valid medical exemption, making marijuana prohibition... immediately constitutionally valid and of full force and effect and removing any uncertainty concerning the validity of the prohibition," said a synopsis of the ruling issued by the court.
Toronto lawyer Alan Yung calls it a defeat for recreational users but said it would make it easier for sick people to get marijuana by allowing them better access and more choice.
"That little gap that we had in Ontario where the law did not exist and police could not arrest you for smoking is over,'' Young said outside court.
"Ultimately, I would prefer just to get rid of the law and let people take care of themselves as they see fit. That didn't happen today, but at least the court has given sick people some greater tools to be self-sufficient."
The MMAR, established in July 2001, recognized that marijuana was suitable for some medical uses, and set out rules for granting pot possession permits to approved patients. But the scheme stopped short of establishing a legal source for the drug, a fact that caused Ontario Superior Court Justice Sidney Lederman to rule the scheme unconstitutional last January.
Lederman gave the government a July 9 deadline to either fix the regulations or supply the pot itself. As a result, Health Canada was compelled to distribute the pot it had been growing for research purposes -- making Canada the first country in the world to sell government-grown pot.
The federal government appealed the ruling, saying it shouldn't be forced to provide a legal source of cannabis.
In its response Tuesday, Ontario's highest court of appeal upheld Lederman's earlier decision.
"Many of these individuals are not only seriously ill, they are also significantly physically handicapped and therefore cannot possibly grow their own marijuana," a synopsis of the judgment said.
"A scheme that authorizes possession of marijuana by seriously ill individuals but which drives some of them to the black market ... undermines the rule of law and fails to create a constitutionally valid medical exemption to the criminal prohibition against marijuana."
An Ottawa-approved marijuana grow operation now supplying a handful of medical marijuana users is not good enough, the court ruled. Due to the fact the scheme was reluctantly kick-started as an interim policy.
Prairie Plant Systems, having won a $5.75-million contract to grow the marijuana for Health Canada, has been growing the drug on Ottawa's behalf, in a vacant mine buried deep under Flin Flon, Manitoba.
It began delivering pot to approved users after Health Canada was compelled by Lederman's decision.
Last month, some of the first patients to smoke Health Canada's government-approved pot accused Ottawa of growing a sub-standard product. Three of the 10 people approved to use the government marijuana said the Prairie Plant Systems' pot they were sold was so bad they want their money back.
Ontario's marijuana laws have been in question since a judge ruled that possessing less than 30 grams of pot is no longer illegal in the province.
Last week, Prime Minister Jean Chretien said replacing criminal sentences with simple fines would better reflect society's attitudes about the punishment of marijuana users.
"The decriminalization of marijuana is making normal what is the practice," Chretien said.
"It is still illegal, but do you think Canadians want their kids, 18 years old or 17, who smoke marijuana once and get caught by the police, to have a criminal record for the rest of their life?"
Adjust the law to reflect reality, Chretien said, and using pot will remain illegal, but in a manner more "in synch" with the times.
With reports from The Canadian Press