POT LAW RULED UNFAIR BY TOP COURT

Clearer Medical Exemptions Urged By Judges

Ontario's top court has struck down the law making it a crime to
possess marijuana in Canada.

The law is unconstitutional because it forces people like Torontonian
Terry Parker, who smokes pot to prevent epileptic seizures, to choose
between effective treatment and being arrested, the Ontario Court of
Appeal said yesterday.

The court has given Parliament 12 months to rewrite the appropriate
sections of the Controlled Drugs and Substances Act to include clearer
medical exemptions from prosecution. The law stays in effect until
then. ``The choice of medication to alleviate the effects of an
illness with life-threatening consequences is a decision of
fundamental personal importance,'' Mr. Justice Marc Rosenberg said.

``Forcing Parker to choose between his health and imprisonment
violates his right to liberty and security of the person,'' he said,
writing for a unanimous three-judge panel.

If Ottawa fails to act, as was the case when the Supreme Court struck
down a ban on abortions in 1988, pot smoking for any reason will
become legal, experts say.

``If they don't amend the law . . . everyone will be entitled to smoke
marijuana legally in 12 months,'' said Alan Young, an Osgoode Hall law
professor representing Christopher Clay, whose case formed part of the
appeal.

An aide to Ontario Attorney-General Jim Flaherty said the province
doesn't relish the prospect of being left without a pot law. It is the
``hope and expectation'' that Ontario ``is not left in the lurch,''
said Bronwen Evans.

Under the act as it stands, it is illegal to possess and cultivate
marijuana, but people who need it for medicinal purposes can apply for
exemptions. Rosenberg said he doesn't question Health Minister Allan
Rock's ``good intentions'' but this process is flawed.

There is no clear criteria for what constitutes medical necessity, he
said, relying heavily on the Supreme Court's reasoning in the 1988
Morgentaler case. In striking down that law, the high court cited the
absence of clear standards to be followed by hospitals in deciding if
a pregnancy would endanger a woman's health.

Obtaining marijuana exemptions is now at the discretion of the federal
health minister and still leaves exempted people with the problem of
obtaining a safe, legal supply, Rosenberg said.

``It's like telling people `If you want penicillin, get some bread and
let the mould grow, and then you'll have your medicine,' '' Young said.

About 50 exemptions have been granted, while a recent survey by
Toronto's Centre for Addiction and Mental Health found that 2 per cent
of Ontarians - about 150,000 people - said they were medical pot users.

Yesterday's ruling, upholds a 1997 decision tossing out possession
charges against Parker. At that time, the trial judge read an
exemption into the law and ordered police to return his marijuana
plants. The fact the court disagreed with him in that respect
yesterday seemed a minor point.

``It's just excellent. It's fantastic,'' said Parker, 44, of the
verdict. ``I very much appreciated the court's decision and it's
opened the gateway large enough for others to follow through.''

Not quite large enough for Clay, who argued that his possession and
trafficking convictions violated personal autonomy, including the
right to get high in his own home, was violated. The court ruled
against him.

Writing for Justices Marvin Catzman and Louise Charron, Rosenberg
found Ottawa does have ``a rational basis'' for banning recreational
use, including 1972 royal commission's concerns about the effects on
driving and adolescent development.

But that doesn't mean all concerns about pot are valid, Rosenberg
said, noting the ``embarrassing history'' of the law in Canada shows
it was introduced in the 1920s out of ``irrational, unproven and
unfounded fears'' that users would become savage killers.

Today, Rosenberg said, Ottawa argues the law serves to meet
international treaty obligations on controlling the international drug
trade and to address possible harm posed by smoking. Rosenberg called
the treaty concerns ironic, given that those documents also support
the availability of medical narcotics. But the health concerns aren't
entirely trivial, he added.

While there is little hard evidence marijuana is addictive or leads to
widespread use of harder drugs, it can trigger schizophrenia and lead
to lung damage with heavy use, he said.

Rosenberg said Parker has studied his options and found that marijuana
battles the effects of seizures ``that could threaten his life and
health. ``In those circumstances, a court should not be too quick to
stigmatize his choice as unreasonable.''

Aaron Harnett, one of Parker's lawyers, said the decision ``went so
far beyond what we hoped for.'' He called it an ``enormous victory''
for those who maintain pot can ease nausea and stimulate appetites in
people suffering from epilepsy, multiple sclerosis, AIDS and other
diseases.

Ottawa must decide whether it wants to attack the Parker ruling in the
Supreme Court or ``go back to the drawing board'' and rewrite the
exemption process they've been so proud of, Young added.

``They think they're the cat's meow right now. They want praise - they
don't want criticism.''

A spokesperson for the federal Department of Justice said yesterday
the decision was being reviewed. The government has 30 days to decide
whether it will appeal the decision.