LOCKED IN LITIGATION

Medical Marijuana Users Have Sued the Government Because They Believe
the System Doesn't Work. in Many Cases, the Court Has Agreed. Yet
There's A Reluctance in Ottawa to Loosen Laws Any Further

Before Cheech and Chong, Bob Marley, Bob Dylan, Lenny Bruce and the
Beats -before them all, Doukhobors in southeastern B.C. were into pot.
The transplanted Russian pacifist Spirit-Wrestlers weren't getting
high and giggling so much as they cultivated cannabis as a folk remedy
and soothing tea.

They knew what many ancient peoples and cultures recognized. Long
before governments in the last century criminalized and banned the
cultivation, possession and sale of marijuana, the weed was renowned
from the great steppes of Asia to the breadbasket of the Mediterranean
for its medicinal properties -salve for whatever ailed you.

Marijuana has been part of the Chinese pharmacopoeia for millennia.
And with the rise of AIDS, wasting diseases and myriad cancers at the
end of the last century, thousands rediscovered its therapeutic
aspects only to find the anti-pot prohibition also made a crime of
their relief. A doctor can prescribe methadone and a host of
opiate-based narcotics or similar drugs, but patients are denied
access to a relatively benign plant largely because of fears
surrounding its legalization.

In the 1990s, the seriously ill and dying began fighting for a legal
exemption to the criminal law, demanding the right to obtain whatever
balm they might from marijuana without fear of prosecution.

Two decades later, the litigation continues -there are numerous cases
before the courts as patients clamour for easier and broader access to
their medication of choice and the government plays deaf despite its
legal losses.

In the most recent case, Matthew Mernagh -an Ontario man suffering
from fibromyalgia, scoliosis, seizures and depression -maintained he
couldn't get his medication and was facing criminal prosecution
because the program didn't work.

Ontario Superior Court Justice Donald Taliano listened to him, as well
as patients from across the country, and found their complaints justified.

He concluded legitimately sick people cannot access medical marijuana
through appropriate means and must resort to compassion clubs or the
street corner, risking arrest and criminal charges.

While Health Canada's testimony about the program was not "wrong or
intentionally misleading," Justice Taliano preferred the evidence of
the sick, the dying and the independent experts.

On April 11, he ruled that unless the government addressed the
legislative flaws within three months the criminal law would be struck
down.

But Ottawa has appealed, so patients' complaints remain
unaddressed.

There is tremendous political resistance to implementing a workable
medical program because it will make enforcement of the criminal law
all but impossible. For the government and police, medical pot is a
Trojan horse for legalization, given the expected demand for what its
champions say may be a new Aspirin.

If cannabis is accepted as stress relief, menstrual cramps and the
ever-lengthening list of ailments it supposedly soothes, most
recreational users could then claim they are patients.

That is why the government has balked time and again at loosening the
regulations.

STATUS QUO UNWORKABLE

Fraser Valley lawyer John Conroy says federal prosecutors and
bureaucrats are defending an unworkable status quo. He hailed the
Ontario ruling and thinks it may prompt change.

"After 40 years [of fighting for marijuana legalization]," he laughed,
"I expected change to come when I was much younger."

Conroy led the final, failed over-the-top charge to overturn the
90-year-old, anti-cannabis criminal law by recreational users. But
that died in a 6-3 decision from the Supreme Court of Canada in 2003.

The high bench supported Parliament's right to enact without debate in
1923 the consolidated Opium and Narcotic Drug Act, which criminalized
possession of pot, or "marihuana" as it is known legally.

After that decision, the only legal issue to be resolved around
cannabis was the nature and extent of an ailing individual's
constitutional right to access given its therapeutic value.

It was one thing to tell the proverbial Big Lebowski he had no right
to smoke pot because it enhanced bowling and munching Nachos, but what
about a wasted AIDS patient who needs it to quell nausea?
Pro-marijuana arguments mounted from a health context are much more
persuasive and compelling. Rather than sparking a laugh, they draw at
heartstrings.

Over the last decade, the medical marijuana forces have won time and
time again in the courts. Nevertheless, the federal government has
responded glacially to the judicial prodding, primarily because it
always follows the U.S. lead on drugs -Canada banned pot due to a
racist anti-Mexican campaign in America in the 1920s. Up until the
1950s, only a handful of charges had been laid across the country.

On this issue, Ottawa walks in U.S. footsteps.

The California Compassionate Use Act of 1996 was the world's first
medical marijuana law allowing "seriously ill" patients access to the
illicit drug -without fear of arrest and imprisonment -on the
recommendation of a doctor.

Hawaii was next, and a dozen states followed suit, even though in 2005
the U.S. Supreme Court said American federal law enforcement agencies
could prosecute despite state-exemption laws.

U.S. DISMISSED BENEFITS

Until President Barack Obama took office, the U.S. federal government
insisted there was no such thing as medicinal cannabis. Obama said
that would change.

"If it's an issue of a doctor prescribing medical marijuana to a
glaucoma or a cancer patient ... really, there's no difference between
that and the doctor prescribing morphine or anything else," he said
shortly after his election.

Obama wasn't willing to spend "political capital" on marijuana reform,
but neither would he waste "Justice Department resources to circumvent
state law."

But as more states move to establish medical marijuana programs and
discuss issues such as reciprocity (allowing a patient from one state
to buy marijuana from a dispensary in another), the regulation of
largescale farms and big-box stores devoted to selling grow operation
equipment, the White House has grown more and more uptight.

The staggering economic potential of medical marijuana is driving
change quickly -for instance, Oakland's Harborside Health Center, the
biggest of the California's numerous dispensaries, has an estimated
$22 million in annual sales.

Even the most liberal President in memory has grown wary: Is it too
much, too fast?

Recently, his Department of Justice sent letters with various warnings
to officials in California, Colorado, Montana, Rhode Island and
Washington State. The U.S. attorneys said they now would consider
civil or criminal charges against patients even if they had state
exemptions and companies supplying them.

The memos led Washington State Gov. Chris Gregoire to shy away from a
proposal to create licensed marijuana dispensaries on the other side
of the Peace Arch. Scores of state-licensed medical marijuana
providers now have been raided nationwide under the Obama
administration. Why the about-face?

The U.S. Attorney for Oregon told reporters the medical program was a
"train wreck" and that he was skeptical the majority of people
obtaining pot actually need it.

Attorney Dwight Holton said California, a state of 37 million, has
46,000 pot permittees compared with Oregon's 39,000 -which is about
one per cent of that state's population of 3.8 million. He said people
who are suffering from lifethreatening illnesses should have access,
but that the number of registered medical marijuana patients was alarming.

"You can get it for pain and nausea," Holton said. "I have pain. I'm
6-5, and I fly in planes, in coach class. I don't think they had me in
mind when they passed this."

Los Angeles DA Steve Cooley wants to shut down all the dispensaries to
prevent what seems to be looming de facto legalization.

Medical marijuana hit the Canadian legal radar in July 2000 when the
Ontario Court of Appeal issued the first ruling linking the
constitutional validity of the criminal law to the existence of a
medical exemption protecting patients' rights.

An epileptic who could only alleviate his suffering with marijuana,
Terrance Parker argued the cannabis prohibition violated the Charter
of Rights and Freedoms because it did not respect his right to medication.

The court agreed the law must be thrown out or amended. But the ruling
was suspended for one year to give Ottawa a chance to respond.

Exactly one year later, the federal government introduced the Medical
Marihuana Access Regulations, and Canada became the second country in
the world with a governmentrun cannabis health program.

The regulations created an exemption to the criminal law allowing
approved patients to possess and grow their own cannabis. It also
exempted gardeners to grow pot for approved patients, established
rules for how many plants could be grown, and allowed for site
inspections and criminal-records checks.

At the same time, the government also awarded Prairie Plant Systems of
Saskatoon a contract to grow pot to sell to qualified patients.

DOCTORS DRAG FEET

From the start, however, doctors dragged their feet collectively when
asked to approve patients. Despite a body of research demonstrating
the efficacy of cannabis, it is not the type of medicine with which
allopathic physicians are comfortable. Smoking, the main contemplated
way of consumption, also made them cringe, but Ottawa made no
provision for extracts such as oils and edibles.

The Canadian Medical Association strongly recommended its members not
participate and warned they could be at professional and legal peril.
The Canadian Medical Protective Association, the profession's
collective legal defence fund, similarly cautioned its 60,000 members
- -about 95 per cent of practicing physicians.

Despite taking an oath to do no harm, they were being asked to
prescribe and endorse a largely untested and unapproved drug without
any safeguards.

By far, the vast majority of physicians have refused to participate in
the program.

On top of that, many patients thought the government's pot was
sub-par, some couldn't afford the cost, sick and dying people were
waiting far too long for the bureaucracy to process their paperwork