WEED AS NEEDED

Ontario Appeal Court Decision Leaves Parliament With Bag Of Leaves

Upon first consideration, arguing to be allowed to make an informed medical
judgment for oneself, free of criminal prosecution, is a principle of
fundamental justice.

Certainly, so an Ontario appeal court thought when it struck down the
existing criminalization of marijuana after an epileptic argued it eased his
condition but was not legally available to him. It is only upon second
consideration that the awkward questions arise, such as whether courts
should decide that a person has a charter right to a medication upon the
value of which the health industry has yet to agree. We also question why
the court did not merely direct the plaintiff to existing legal means by
which he might be permitted marijuana for medical purposes, rather than
strike down an entire law.

The plaintiff in the Ontario case was a longtime sufferer.

He argued that marijuana helped him; he had taken to growing sufficient
plants for his own use. When he was reported, police visited his house,
confiscated the plants and charged him with possession. (He was also found
guilty on a possession-for-trafficking charge, but let off when the court
accepted that he passed his surplus on gratis to fellow sufferers.) His
defence on the main charge was that Section 7 of the Charter of Rights
guarantees life, liberty and security of the person.

The latter, he claimed, was compromised by his inability to legally obtain a
substance he found to be of benefit.

In accepting the defence, a panel of three judges declared federal laws
banning possession of marijuana to be unconstitutional and gave Parliament
one year to rewrite the law.

In so doing, the court implicitly accepts the beneficial aspects of
marijuana. Not all physicians do. Yet even if physicians were agreed on its
medical value, that is no argument for it to be easily available any more
than it would be for heroin, a wonderful pain killer, to be decriminalized.
Many less-celebrated drugs are beneficial but access is only by
prescription.

More puzzling, we wonder why the court did not simply direct the plaintiff
to utilize Section 56 of the Controlled Drugs and Substances Act, by which a
person may, with the co-operation of his physician, seek an exemption from
Canada's blanket restriction on marijuana possession. With this reasonable
option available, we are pressed to see how his rights were violated.