Pubdate: Thu, 25 Feb 2016
Source: Vancouver Sun (CN BC)
Copyright: 2016 Postmedia Network Inc.
Contact:  http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Ian Mulgrew
Page: A1

VANCOUVER JUDGE THROWS OUT MEDICAL POT RULES

Ill People Can Grow Their Own, Federal Court Says

The Federal Court of Canada lit a fire under Liberal marijuana 
legalization plans Wednesday, declaring the old Tory medical pot 
scheme unconstitutional.

In a stinging indictment, Judge Michael Phelan said the 
Conservatives' 2013 regulations on medical marijuana violated the 
liberty and security interests of the charter.

"The access restrictions did not prove to reduce risk to health and 
safety or to improve access to marijuana - the purported objectives 
of the regulation," wrote Phelan, who heard evidence in the case last 
spring in Vancouver.

"In sum, the law goes too far and interferes with some conduct that 
bears no connection to its objectives."

He gave the government six months to fix the legislation, suggesting 
a much more relaxed approach that allowed personal growing operations 
and dispensaries. A longtime cannabis crusader, lawyer John Conroy 
said Ottawa should let the 30-day appeal period lapse and move 
quickly on new laws.

He envisioned a legalized regulatory environment similar to that for 
alcohol, with a role for all three levels of government, Ottawa 
setting excise taxes.

That would put the political hot potato of regulating legal pot into 
the hands of the provinces - the same as alcohol - with 
municipalities having a role in land use, permitting and inspection 
of growing operations.

An injunction that shielded former licensed growers from prosecution 
until Phelan's ruling was extended.

Although not part of any previous medical pot scheme, Phelan called 
the more than 100 illegal dispensaries across the country "the heart 
of cannabis access."

Kirk Tousaw, a Vancouver Island lawyer in the case, was overjoyed.

"His historic decision represents a nearly complete victory for 
patients using medical cannabis in Canada," he said.

"I call upon the prime minister to act much more swiftly and 
immediately end all criminal sanctions against medical cannabis 
patients and their providers. In addition, the justice minister 
should immediately dismiss all pending criminal cases involving 
medical cannabis producers and dispensaries."

Phelan concluded the medical benefits of the plant are largely 
undisputed and recognized, though he acknowledged that much of the 
information about cannabis and its efficacy is anecdotal.

In the 103-page decision, he shredded Ottawa's defence of the 
regulations and the disinformation propagated by police and fire officials.

"Many 'expert' witnesses were so imbued with a belief for or against 
marijuana - almost a religious fervour - that the court had to 
approach such evidence with a significant degree of caution and 
skepticism," the judge added.

He completely dismissed the RCMP expert testimony on home invasions, 
violence and the diversion of pot by organized crime.

Health Canada, Phelan said, had no information licensed growers "ever 
overproduced their licences, diverted marijuana to the black market, 
produced unsafely, caused smells, had any fires, produced any mouldy 
marijuana or suffered any negative health consequences from consuming 
their medicine."

For 15 years, the country has tried to establish a working medical 
program after the Supreme Court of Canada, at the turn of the 
century, said seriously ill patients had a right to access to cannabis.

Phelan said "the judicial teachings were that access for approved 
medical patients is mandated by the charter and that restrictions on 
access, use and supply were to be strictly limited."

Under the Conservative government's 2013 rules, only authorized 
licensed corporations were allowed to grow and sell medical cannabis.

The personal and designated-grower licences permitted under the old 
rules were eliminated in favour of a courier-and-mail-order delivery system.

But growers and patients across the country challenged the 
constitutionality of those regulations, saying they violated liberty 
and security rights.

The new Liberal administration has promised to legalize marijuana and 
appointed parliamentary secretary to the justice minister, Bill 
Blair, Toronto's former top cop, to study the issue.

Although Phelan's judgment was not concerned with recreational pot, 
it will no doubt be considered as the Liberals decide how they will 
legalize marijuana, which the party promised to do during the last 
election campaign.

There are an estimated 38,000 or so licensed medical pot users across 
the country, about 17,000 who reputedly buy from the new firms.
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MAP posted-by: Jay Bergstrom