Pubdate: Sat, 19 Oct 2002
Source: Winnipeg Free Press (CN MB)
Copyright: 2002 Winnipeg Free Press
Contact:  http://www.winnipegfreepress.com/
Details: http://www.mapinc.org/media/502
Author: James McCarten, Canadian Press

CHARTER DOESN'T GUARANTEE ACCESS TO MEDICINAL POT

TORONTO -- The right to smoke marijuana for medicinal reasons is no more 
enshrined in the Charter of Rights than the right to smoke crack cocaine, 
lawyers for the federal government argued yesterday. Yet that's the legal 
logic of a group of chronically ill Canadians who are in court to challenge 
the rules governing Ottawa's medical pot program, said federal lawyer Lara 
Speirs.

Their argument "dilutes" the guarantee in Section 7 of the Charter to life, 
liberty and security of the person "to the point of absurdity," Speirs told 
Superior Court Justice Sydney Lederman.

"Taken to its logical conclusion, one could argue that Section 7 guarantees 
the right of a person to smoke crack cocaine" or engage in other dangerous 
or otherwise foolhardy behaviour.

Ottawa "strenuously opposes" that argument, she added.

"To say that the Charter protects foolhardy decisions is simply absurd." 
The applicants consist of a group of people who suffer from various medical 
conditions ranging from AIDS and hepatitis C to epilepsy and multiple 
sclerosis.

They want the court to strike down as unconstitutional a regulatory scheme 
governing access to medicinal pot that they consider a "cruel hoax," as 
well as the law that makes possession a criminal offence.

They are also demanding access to Ottawa's stash, grown under high security 
conditions deep in an abandoned Manitoba copper mine under a $5.7-million 
contract.

Federal Health Minister Anne McLellan has so far refused to allow the 
marijuana to be distributed because she says it simply isn't pure enough. 
Health Canada is not in the business of distributing medication, nor should 
it be, Speirs argued.

The regulations allow permit holders to obtain marijuana from a licenced 
grower, or to become licenced to grow it themselves, Speirs said.

The applicants have argued that the restrictions on growers -- which 
include having to submit to warrantless searches, including a search of 
private computer records -- are too severe. Four members of the principal 
group of applicants are licenced under Ottawa's Medicinal Marijuana Access 
Regulations to possess the drug, while the other three are not.

Those who don't have possession permits have merely demonstrated a 
preference to treat their symptoms with marijuana, not a medical need as 
stipulated in the regulations.

But Lederman appeared unconvinced.

"Is it sufficient that it's a reasonable choice to alleviate the symptoms 
associated with certain illnesses?" he asked. "What does 'medically 
necessary' mean here?"

Whatever the answer is, the applicants without permits don't meet it, 
replied Speirs.

"Whatever label you want to use, this threshold is far higher than a mere 
preference," she said. "That, Your Honour, is all the applicants have 
demonstrated."

An eighth applicant, Terry Parker, has already been given a green light to 
possess marijuana by the Ontario Court of Appeal in order to treat symptoms 
of epilepsy.

But Parker hasn't even bothered to apply for a possession permit, said 
Frankel, and therefore has no standing on which to appeal for the 
regulations to be struck down. Nor does the precedent set by the appeals 
court in Parker's case apply to the others, Frankel continued. For 
instance, while Parker has already proven in court that synthetic pot 
substitutes don't work for him, few of the other applicants without permits 
have even tried them.

Indeed, none of the applicants without permits should have sanctioned 
access to marijuana because they either have existing medical conditions, 
refuse to use traditional prescription drugs or have a pre-existing drug 
problem, Frankel said.
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MAP posted-by: Larry Stevens