MARIJUANA ADVOCATES SUING WRONG PARTY, JUDGE RULES

A Saanich couple suing for the right to legal medical marijuana is smoking
out the wrong targets, a B.C. Supreme Court judge has ruled.

In June 2002, Eric and Marlene Young launched a lawsuit against Deputy Prime
Minister Anne McLellan and the Queen after his supply of cannabis sativa was
cut off by the federal agency administering the Marihuana Medical Access
Regulations that came into effect July 30, 2001.

The agency ruled that the regulations required Young to get a signed
application form for medicinal use of cannabis from a medical specialist and
not a general practitioner, which Young was unable to obtain.

Young, a former assistant professor in computer engineering, was diagnosed
with multiple sclerosis in February 1996 and was prescribed cannabis to
treat his condition by a general practitioner on June 15, 1999. Young stated
that the medical pot replaced less effective toxic pharmaceutical drugs.

"Anne McLellan is not properly a party in these proceedings," ruled Justice
David Vickers. "All of her actions were in a representative capacity. There
are no allegations in the statement of claim that she did any of the matters
alleged in a personal capacity."

McLellan, re-elected in the last federal election in her Edmonton riding,
had been the federal health minister in 2002 and 2003.

Vickers also said that the Queen was not a properly named defendant in the
Youngs' lawsuit. He substituted the Attorney General of Canada in place of
the monarch.

The judge said he had difficulty determining the Youngs' causes of action.
The plaintiffs represented themselves in the court proceedings without the
aid of a lawyer.

Vickers said the causes of action seem to be breach of fiduciary duty,
defamation, invasion of privacy, abuse of public office and infliction of
nervous shock.

"The plaintiffs, in the course of argument, alleged malice in the actions of
McLellan," Vickers noted while dismissing the breach of duty allegation in
his written judgment. "Malice is not pleaded. Even if it was, it would not
change the fact that no fiduciary duty arises in the administration of (her)
duties."

The judge also said the invasion of privacy claim was not properly framed
because it failed to allege the violation was done "wilfully and without a
claim of right."

"The final tort alleged is infliction of nervous shock. As I read the
statement of claim and from the arguments made by Eric Young, the plaintiffs
seem to be saying they sustained nervous shock on two occasions.

"The first arose when the police arrived and accused Eric Young, falsely he
says, of making a bomb threat. This is tied directly to the defamation plea.

"The second occasion of nervous shock came with an alleged delay in renewing
the Section 56 exemption (of the Controlled Drug and Substances Act).

"In that regard, the pleadings seem to say that the extension of the
exemption was made about two weeks before expiry. As this is a discretionary
decision, I failed to see what duty was owed the plaintiffs to advise them
of their extension any earlier than they did."

Vickers said the Youngs' pleadings did not disclose any tortious conduct
that was a foreseeable cause of nervous shock or a psychological or
psychiatric condition.

The judge recommended that a case-management judge be brought in before any
trial is scheduled or held on the main issues.