ONTARIO COURT STRIKES DOWN CANADA'S POT LAWS

An Ontario court has struck down Canada's laws against possessing and
growing cannabis as part of a ruling that found the country's
medicinal marijuana program is failing to provide access to the drug
for those who need it.

Smoking up, however, is not legal just yet: the federal government
has three months to launch an appeal or change its regulations to fix
the problems identified by the court.

Mr. Justice Donald Taliano of the Ontario Superior Court struck down
the Marihuana Medical Access Regulations, arguing they aren't doing
enough to ensure patients can obtain the necessary approvals to use
the drug. Simultaneously, he ruled two sections of the Controlled
Drugs and Substances Act - those that prohibit simple possession and
cultivating marijuana - are unconstitutional, since they can be used
to criminally charge medicinal users who haven't been able to obtain
such approval.

The ruling means the government must either improve its system for
licensing medicinal marijuana patients within 90 days, or it will
become legal to use or grow the drug for any purpose. The government
can, however, buy itself more time by appealing the ruling.

The government office handling the case could not be immediately
reached for comment on what it planned to do.

The ruling is not the first time the courts have come to the
assistance of those who use cannabis to alleviate their illnesses. A
2000 Ontario Court of Appeal ruling compelled the government to
create the medicinal marijuana program or have its prohibitions
against cannabis thrown out altogether. Other court rulings have
pointed to specific problems with the medicinal marijuana rules.

This, however, is the first time a court has thrown the whole thing
out, said Jacob Hunter, policy director with the Vancouver-based
Beyond Prohibition Foundation. Even though the current ruling applies
only to Ontario, he said it would have ramifications across the country.

"We know historically that decisions in Ontario have had an effect
nationally, especially on this issue," said Mr. Hunter, who is also a
licensed medicinal marijuana user.

The court decision hinged on the difficulty medicinal users have in
finding a doctor willing to sign the necessary paperwork. The
problem, Judge Taliano ruled, is that the government requires
patients to obtain the approval of a doctor to take marijuana legally
but does not give physicians adequate training or fund sufficient
clinical trials of the drug. As a result, much of the medical
community refuses to approve its use.

"Rather than promote health - the regulations have the opposite
effect. Rather than promote effective drug control - the regulations
drive the critically ill to the black market," he wrote. "Surely, the
right to choose belongs to the patient, not to government that has
failed to create the environment for better research into the drug's
effectiveness and harmful qualities."

The case was brought forward by Matthew Mernagh, a 37-year-old man
from St. Catharines, Ont., who couldn't find a doctor to approve his
use of marijuana to relieve the symptoms of several illnesses,
including fibromyalgia and scoliosis. He was charged with cultivating
his own cannabis, charges that were also staid by Judge Taliano.

Several other medicinal users of the drug testified they faced
similar problems, and that Health Canada would take months to process
their applications.

Judge Taliano agreed with Mr. Mernagh's argument that criminally
charging patients who had to resort to illegally buying cannabis
amounted to a violation of their Charter right to liberty.

Proponents of medicinal marijuana have long argued that Health
Canada's system is flawed and that the roughly 10,000 people approved
to use the drug represent only a tiny fraction of those who should
qualify for the program.

"For the last nine years, patients have been complaining about the
ineffectiveness of the medicinal marijuana program," said Ron Marzel,
a Toronto lawyer who has represented medicinal marijuana clients.
"This judge finally accepted those concerns."