ANTI-MARIJUANA LAW VIOLATES RIGHTS OF THE SICK, JUDGE RULES

Federal government must rewrite law or else marijuana will be legalized

In a ruling that takes a step towards marijuana legalization, a judge struck
down the federal government's anti-possession law yesterday for ill
Canadians who smoke marijuana to ease their pain.

Justice Marc Rosenberg of the Ontario Court of Appeal, declared the law
violates the rights of sick people by forcing them to choose between "health
and imprisonment," and gave the federal government one year to rewrite its
legislation.

The ruling was a victory for Terry Parker, a 44-year-old Toronto man who
smokes three to four joints a day to control severe epilepsy that even brain
surgery and more than 100 hospital stays did not ease.

Mr. Parker, denouncing the federal Controlled Drugs and Substances Act for
"sucking big time," will continue to grow his own marijuana. He said it is
the only drug that gives him relief from the repeated seizures, blackouts
and vomiting he suffered since childhood.

"It's been three years now ... and there's not been one seizure," said Mr.
Parker, with his lawyer at his side, outside the Court of Appeal.

Judge Rosenberg, in striking down the act, goes further than a 1997 decision
in which Mr. Parker was awarded a special exemption to the federal law.

If Health Minister Allan Rock does not act, the blanket prohibition on
possession will be nullified and marijuana will be legal in Canada for
everybody, including the healthy.

"It has been known for centuries that in addition to its intoxicating or
psychoactive effect, marijuana has medicinal value," Judge Rosenberg said in
his 55-page ruling.

"I have concluded that forcing Parker to choose between his health and
imprisonment violates his right to liberty and security of the person."

Mr. Rock started last year to award special exemptions to some ill Canadians
who can prove they need to smoke marijuana to control diseases such as AIDS
and cancer.

But Judge Rosenberg rejected the requirement for the sick to seek federal
permission to smoke. "I have concluded that the possibility of an exemption
... dependent upon the unfettered and unstructured discretion of the
minister of health is not consistent with the principles of fundamental
justice," he wrote.

"Accordingly, I would declare the prohibition on the possession of marijuana
in the Controlled Drugs and Substances Act to be of no force and effect."

Judge Rosenberg suspended his ruling for a year to give Parliament time to
revamp its law.

In the meantime, Mr. Parker "cannot be deprived of his rights," said Judge
Rosenberg, who gave the unemployed man permission to continue growing his
own marijuana.

Mr. Parker, who survives on a disability pension, was arrested twice for
cultivating marijuana, once after police raided his home in 1996 and seized
70 plants, also charging him with drug trafficking.

Officials at Health Canada and Mr. Rock's office would not comment on the
ruling yesterday. It isn't yet known whether the government will ask the
Supreme Court of Canada to hear the case.

Although the judgment applies only in Ontario, the province's court of
appeal is one of the most influential in the country and will likely have
weight in other superior courts.

In a separate ruling, however, Judge Rosenberg rejected an appeal from Chris
Clay, a former London hemp store owner who was seeking the general
legalization of marijuana. His lawyers are expected to seek leave to appeal
in the Supreme Court of Canada.