Pubdate: Wed, 10 Dec 2003
Source: Windsor Star (CN ON)
Copyright: The Windsor Star 2003
Contact:  http://www.canada.com/windsor/
Details: http://www.mapinc.org/media/501
Author: Ellen van Wageningen

POT LAW FIGHT PREDICTED

Lawyer Sees "Good Chance" For Successful Challenge

The Windsor lawyer whose constitutional challenge opened the floodgates for 
thousands of marijuana possession charges across the country to be thrown 
out says Health Canada has re-opened the door to such challenges in Ontario.

New regulations governing medical access to marijuana announced by Minister 
of Health Anne McLellan don't comply with a landmark Ontario Court of 
Appeal ruling made Oct. 7, criminal defence lawyer Brian McAllister said 
Tuesday.

"I don't want anybody to act on the basis of this, but I certainly think 
anybody charged (with possession) in Ontario, as of today, has a good 
chance of challenging it because we're once again in the pre-Oct. 7 state 
of the law," he said.

The amendments to the Marijuana Medical Access Regulations allow licensed 
growers to be compensated for their costs. They also eliminate the 
requirement that some medical marijuana users have the support of more than 
one physician to be eligible.

However, the regulations continue to restrict those licensed to grow 
medical marijuana to supplying one user.

They also maintain a prohibition against more than three licensed growers 
cultivating a crop together.

The Ontario Court of Appeal clearly stated that those restrictions needed 
to be loosened for medical marijuana users to get a legal supply of the 
drug, McAllister said.

"It's so brazen I'm in shock," he said of Health Canada's failure to do so. 
"This is really back-room dealings circumventing a court order."

Alan Young, a Toronto lawyer representing medical marijuana users, has 
already said he plans to take Health Canada to court for contempt. Medical 
marijuana users had hoped that the Ontario appeal court decision would open 
the door for compassion clubs to provide sick people convenient and 
economical access to the drug.

The reason Health Canada's failure to address those issues also affects 
those charged criminally for possessing marijuana goes back to the appeal 
court ruling and the Ontario court cases leading up to it, McAllister said.

The appeal court found the law prohibiting marijuana possession was invalid 
after July 31, 2001, because the rules governing medical access to the drug 
were so restrictive they forced sick people to go to the black market.

On that basis, McAllister succeeded in getting the court to dismiss a 
marijuana possession charge against a 17-year-old Kingsville youth, who 
admittedly had no medical reason for possessing the drug.

Thousands of marijuana possession charges laid between July 31, 2001, and 
Oct. 7 this year have been stayed or thrown out of court as a result.

The appeal court made marijuana possession illegal again by striking down 
four provisions of the medical access rules as unconstitutional ? including 
the restrictions on authorized growers.

Federal Justice Department spokeswoman Pascale Boulay said it will take 
another court challenge to determine if McAllister's assessment of the 
current state of the law is correct.

The restrictions on authorized growers remain to prevent diversion of 
marijuana for illegal purposes and to meet international obligations to 
control illegal drugs, said Health Canada spokeswoman Catherine Saunders.

"While the court imposed a remedy to address the constitutional 
shortcomings it had identified in its decision, it also afforded the 
government of Canada large discretion in implementing an alternate remedy 
to address the issue of reasonable access to a legal source of marijuana 
for medical purposes," she said.
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