Pubdate: Wed, 29 Oct 2008
Source: National Post (Canada)
Copyright: 2008 Canwest Publishing Inc.
Contact:  http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Bookmark: http://www.mapinc.org/mmjcn.htm (Marijuana - Medicinal - Canada)

STOP HARASSING MEDICAL POT USERS

On Monday, the Federal Court of Appeal refused to entertain a
government challenge to January's Sfetkopoulos decision, in which
Justice Barry Strayer of the federal court's trial division struck
down the rule that a licenced grower of medical marijuana can only
have one customer. "We're not persuaded [Justice Strayer] committed
any error," said Justice John Evans on behalf of the three-member
appeal panel, endorsing their colleague's ruling with unusual haste.

What is perhaps most interesting about this is that Justice Strayer
signalled in his original January ruling that he felt some sympathy
with the government's position. "I have some misgivings," he had said,
"about the Court prescribing therapeutic substances which are neither
drugs approved under the elaborate and scientific processes of the
Food and Drug Act, and on which there is far from a scientific
consensus as to their benefits. But matters have moved well beyond
that issue."

Lawyers for the government, he suggested, needed to stop trying to
argue the established Charter right of access to medical marijuana out
of existence, as they continue to do every time before they go before
a court to quarrel over some procedural nicety and delay the creation
of a sensible system of buyers and growers. "We must apply the
Constitution," he said memorably, "as the Supreme Court of Canada has
found it to be."

Apparently, the message has not sunk in, because the government's
arguments do not appear to have improved noticeably between January
and now; they offered merely the same old bogus pretexts for
restricting the licenced supply and for maintaining Health Canada and
Prairie Plant Systems' quasi-monopoly on cannabis production. The key
justification was that limiting growers to one customer allowed the
government and the police to more easily "maintain control over
distribution of an unapproved drug product." Strayer bounced that
argument, asking how a myriad of small-scale household growers could
possibly be easier for police to regulate than a few medium-scale
ones; the appeal court, too, was flummoxed by this idea.

Indeed, every justification offered for the one-to-one buyer-to-grower
ratio works just as well if you turn it on its head. In its
regulatory-impact statement on the one-to-one rule, Health Canada
argued that limiting growers to one customer would "minimize the risk
of diversion" to the non-medical market. But in fact, concealment of
illicit surplus may well be easier for smaller growers, and economies
of scale would seem to allow larger ones, practising openly, to invest
more in security.

The impact statement also suggested that the one-to-one ratio is more
consistent with the long-term Health Canada goals of regulated
production within a system of standardized product quality and formal
pharmaceutical distribution. Put another way, the argument here seemed
to be that vendors can't be allowed to run marijuana cultivation as a
proper full-time business, because, er, that would interfere with the
goal of having marijuana cultivation be run as a proper full-time business.

In any event, said Judge Strayer, even if that logic were remotely
sound (as opposed to explicitly self-contradictory), some
pie-in-the-sky statement of future principles cannot be used to deny
present-day patients' Charter right to enjoy access to a competitive
market for a product that has been found -- as a matter of settled law
- -- to be medically necessary to their quality of life. In short, the
Federal Court of Appeal had no choice but to do what happens to be the
right thing.

At this point, it is worth asking: How much more harassment -- in the
courts and otherwise-- is the government of Canada intending to impose
upon medicinal marijuana users?

It has now been eight years since the landmark Ontario Court of Appeal
decision in the case of R. vs. Parker (in which the court found that
Canada's criminal prohibition on marijuana use was unconstitutional
insofar as it did not contain an exemption for medical users). During
this period, an entire cadre of government lawyers and bureaucrats has
seemingly had no other purpose than to thwart the Charter (and the
judges who interpret it) by putting up roadblock after roadblock in
front of cancer patients and glaucoma sufferers seeking access to
effective medicine. If Stephen Harper's government is looking to avoid
a deficit by cutting wasteful spending and programs, Monday's Federal
Court of Appeal decision suggests a great place for to start hacking
away. 
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MAP posted-by: Richard Lake