LEGAL HAZE

Health Canada Has 'Obstructionist Approach' Over Medical Marijuana: Expert

It was nearly 25 years ago that Jamaican dance hall reggae singer
Frankie Paul crooned "Canadian people love the tusheng peng" as he
exhorted them to "pass it ovah" in his breezy ode to the joys of marijuana.

The musical sentiment was expressed long after the LeDain Commission
recommended in 1972 that marijuana should be legalized and regulated
like alcohol.

Whether accompanied by a reggae backbeat or the more formal findings
of a Royal Commission, the conclusions were the same -- there should
be fewer restrictions on marijuana access.

Decades later, the Canadian people are arguably farther away than
ever from legally passing the tusheng peng.

About 40,000 people are still charged each year with simple
possession, according to Statistics Canada. Criminalizing possession
was upheld by the Supreme Court of Canada in 2003 on the grounds that
the state must be permitted to use the threat of criminal penalties
to stop "vulnerable people" from "self-harm."

The Conservative government of Stephen Harper is again proposing
stiff penalties for even small level growers, reintroducing
legislation that died in the last session of Parliament but has
always been part of its "tough on crime" agenda.

It is in the field of medical marijuana, though, that Canada has
seemed particularly intent on limiting access even though other
Western nations are moving in the opposite direction.

There are an estimated 400,000 Canadians who use marijuana to deal
with chronic pain and other ailments, yet fewer than 3,000 have
received official approval from Health Canada, which has formally
conceded there are legitimate medical benefits from marijuana. As
well, it continues to file appeal after appeal whenever aspects of
its maze of medical marijuana regulations are struck down by a court
as being unconstitutional.

Marijuana advocates suggest there is a disconnect between the actual
risks of the substance and what the public is being told by
politicians and police.

"Sadly, law enforcement agencies have done a fairly good job at
scaring the public," said Alan Young, a law professor at Osgoode Hall
in Toronto who has represented many people seeking greater access to
marijuana for medical reasons.

Those court battles have consistently struck down obstacles to
obtaining a legal supply for medical users.

The Supreme Court refused last month to hear a Health Canada appeal
of a Federal Court decision that struck down a rule restricting
designated producers from growing for more than one user.

A judge in British Columbia also struck down another restriction in
February that no more than three designated producers can grow
together for medical users, in a case involving the Vancouver Island
Compassion Society. Health Canada responded by filing an appeal of
the B. C. decision.

Both of these restrictions had already been ruled unconstitutional in
2003 by the Ontario Court of Appeal, because sick people were forced
to use the black market to obtain their medicine. Instead of
appealing the decision, Health Canada simply ignored it and
re-enacted its restrictions -- those that were recently struck down again.

The actions of Health Canada "border on contempt" said Mr. Young, who
acted in the 2003 Ontario Court of Appeal case and the 2008 Federal
Court proceeding. "They have an obstructionist approach," he stated.

While the government has provided a legal supply of marijuana through
a private producer, only a small percentage of medical users access
the product because of complaints about its quality.

The significance of the Federal Court decision is that it will start
to open up the market to other legal producers, explained Mr. Young.
"There is now much more leverage to cultivate for sick people," he said.

Health Canada said that in light of the Supreme Court's decision to
not hear an appeal of the that ruling, it will "take swift and
immediate action to revamp the [medical marijuana] program," though
it did not say what that action would be.

The government is also moving forward on tightening laws against
non-medical use.

The House of Common justice committee resumes hearings on Monday over
reintroduced legislation that would require a mandatory minimum of
six months in jail for anyone found to be growing even one marijuana
plant illegally.

Phillipe Lucas, executive director of the Vancouver Island Compassion
Society, and a city councillor in Victoria, stated that it is the
"police lobby" keeping prohibitions in place to preserve its budgets.

Suspicion of marijuana possession is often used as a "gateway" by
officers to check individuals for other crimes, Mr. Lucas noted.

During his recent appearance before the Commons justice committee,
the federal justice minister Rob Nicholson told members that the
government believes Canadians welcome tough new laws against
marijuana growers. As well, he asserted that "marijuana is the
currency" used to bring in harder drugs into Canada.

If this is the case, it is a function of the laws against marijuana,
Mr. Lucas said.

"Drug-related crime is prohibition-related crime," he suggested.
Small-time medical growers may not be targeted by the new laws, "but
they will be caught up in it. Police always go after low-hanging
fruit," he predicted.

Along with easing restrictions on growers, Mr. Lucas urged Health
Canada to simplify its regulations for users. He pointed to Oregon,
where more than 20,000 people have a state Medical Marijuana card as
a result of a streamlined application process. The program is so
accepted that Kitty Piercy, the Mayor of Eugene, Ore., recently
proclaimed next week as Medical Marijuana Awareness Week.

The state of California has a similar law that allows almost 30,000
cardholders or their caregivers to grow six to 12 plants, and some
counties have recently moved even further on the road to legalization
with proposed measures that would tax the production of medical marijuana.

It remains to be seen, though, whether Canada will follow those
trends -- despite what Frankie Paul said all those years ago.