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. - --- MAP posted-by: Keith Brilhart