EIGHT YEARS OF REEFER MADNESS

Why Can't Ottawa Deliver a Sensible, Humane Medicinal-Marijuana Program?

Jim Kerr was making lunch one Friday afternoon last month when seven
police officers burst in, put him up against the wall and handcuffed him.

"I have multiple sclerosis and grow marijuana for it," he told them.

"Shut up," said an officer. "You're not under arrest yet."

"The marijuana is upstairs in a room I keep locked when the kids are
home," he said.

"Shut up," he was told again. From upstairs came the gleeful howls of
policemen: "We got it! Bust him!"

On a cold day, they refused to let him put on a jacket, took him away
in handcuffs, called Children's Aid to take away his daughters, held
him for four hours at the station, then told him to walk home.

Welcome to Canada, where for the past eight years courts have been
calling upon Parliament to enact a law protecting the right of the
sick to use cannabis as medicine -- and where successive governments
have refused to allow Parliament to do so. Instead, Ottawa has
created a series of arbitrary regulations that make marijuana more
difficult to obtain than opium.

Jim Kerr thought he had done everything right. He had applied to
Health Canada's Medical Marijuana Access Division, filled in his
portion of their 33-page application and left the document with his
doctor to fill in the rest. The overworked GP left the paperwork
untouched for a year, and that turned Jim Kerr into a criminal.

When Kerr got home from the police station, he got on his computer to
look for help. Some time earlier, he had bookmarked a website,
www.thepotlawhasfallen.ca, the work of a philosophy professor named
Doug Hutchinson. Hutchinson is a former Rhodes Scholar whose Oxford
thesis was on the subject of constitutional law, and also a person
legally entitled to use cannabis for medical reasons. His own
exhausting fight to assert his rights at the University of Toronto
has forced him "down out of the Ivory Tower" and into medical
marijuana activism. "The government is not being controlled properly
by its own constitution," Hutchinson says. "I experienced the
hideousness of it personally, and if I walk away, then I consent to
it happening to others."

Hutchinson argues that no proper legal arrangement exists to protect
Canadians who use cannabis medically, and therefore the entire
prohibition against cannabis is invalid. A similar argument persuaded
a Toronto judge to acquit a man of marijuana possession last July,
and an Oshawa judge to acquit three men in November. This year,
judges in London, Ont., and Kitchener, Ont., have thrown out simple
possession charges in cases where the accused used Hutchinson's
defence strategy.

Here is the basis of Hutchinson's argument: In May, 2000, Terry
Parker, an epileptic, won the right to use cannabis to prevent
seizures. The Ontario Court of Appeal ruled "this is a matter for
Parliament," and ordered a new law protecting his right be crafted by
July, 2001. The day before that deadline, the government instead
decreed the Medical Marijuana Access Regulations (MMAR).

These regulations were found to be so obstructionist that in 2003 two
Ontario Superior Court justices ruled all marijuana possession laws
illegitimate. Police in Ontario made no possession arrests for
months. The Ontario Court of Appeal dealt with the issue in October
of that year, bundling these cases together: upholding the acquittal
of a teen on possession charges because the law was invalid at the
time of arrest, and agreeing in another case that the MMAR were
defective. (This means that if you were convicted of marijuana
possession between 2001 and 2003, you should join a class action
lawsuit now underway.)

Government lawyers begged the court to tell them what was needed to
make the regulations constitutional, and the court obliged, declaring
cannabis prohibition back in force in October, 2003. One change the
court demanded would have allowed for lawfully sanctioned "compassion
clubs" to grow varieties of plant strains for registered patients.
The government refused to implement this requirement, reinstating
sections of the MMAR the court had found unconstitutional.

At the root of this ongoing legal mess lies a simple truth: For the
past eight years, our government has been unwilling to pass an Act of
Parliament that would recognize the right of the sick to use cannabis
without being treated like criminals. It's popular in some quarters
to blame "activist judges" for making law in this country, but on the
marijuana file we repeatedly see government lawyers pleading with
judges to keep making the law for them.

The intransigence of the current Conservative government is largely
ideological: They believe all drugs are bad. Meanwhile, Liberals of
the Chretien and Martin eras admit to having been driven by fear of
offending our drug-warrior neighbours to the south. This is ironic:
Health Canada currently permits fewer than 2,400 ill Canadians access
to cannabis, while Oregon, a state with one-tenth our population, has
15,000 registered users. Then there's California, where over 400
dispensaries supply a quarter-million users with a wide variety of
strains for different symptoms. (Health Canada grows a single strain
of cannabis in an isolated mine shaft.)

Compassion clubs similar to those California dispensaries do operate
in Canada. Philippe Lucas is head of the 700-plus-member Vancouver
Island Compassion Society in Victoria, B.C. Lucas, who has hepatitis
C from tainted blood, has doggedly used Access to Information
requests to track Health Canada's marijuana bureaucracy. From a
series of heavily blacked-out emails Lucas showed me, one can trace
the almost laughable give and take as a bunch of non-scientists set
themselves to write a marijuana "Fact Sheet" for physicians, pulling
from a hat a recommended daily dose of one to four grams. It would be
funny except that Lucas and his compassion society have felt
compelled to mount their own constitutional challenge, after police
seized and destroyed their organic grow operation and charged two
employees with trafficking. The case continues in April in B.C.'s
Supreme Court.

"Under the current system, the only way we see improvements to the
medical marijuana program is through the courts," he says, "and that
means people with hepatitis C or AIDS or cancer have been arrested,
and found themselves in a desperate and untenable situation. We can't
keep forcing change on the back of chronically ill Canadians."