YOUNGS LOSE FIGHT TO SMOKE MARIJUANA IN CRD HOUSING

They were kicked out of subsidized housing in Gordon Head for smoking
medicinal marijuana and now they've lost in court - again.

Eric and Marlene Young have fought their eviction through the court
system for the last two years.

The Youngs were living in the Beachwood Park apartments run by the
Capital Regional Housing Corporation (CRHC) when they ran into
complaints from the neighbours about the smell of marijuana.

Eric has multiple sclerosis and is legally permitted to smoke
marijuana to control his spasms. The drug also helps him sleep. He has
an exemption from Health Canada that allows him to use marijuana and
allows his wife to grow it for his use. However, the exemption did not
protect the couple from being evicted over the pungent aroma produced
by the burning weed.

The court battle has included a complaint that the Capital Regional
District violated the Youngs' rights and freedom when the CRD's
corporation, the CRHC, evicted the couple.

The situation is akin to a landlord kicking out tenants over
complaints that they cook with too much curry, said Philippe Lucas,
the director of the Vancouver Island Compassion Society.

The Victoria-based group advocates the use of medical marijuana.

"This is something the federal government should be looking at - they
should be helping people like Eric," he said, noting that the Youngs
have had to represent themselves in court.

Last month, the B.C. Court of Appeal upheld a previous decision that
the CRHC did not violate the Young's Charter rights.

While expressing some sympathy for the Youngs, Madam Justice Carol
Huddart's comments focused less on whether the CRHC was wrong and more
on the fact that a private company can not violate human rights.

The CRHC is a non-profit housing organization incorporated in 1983 by
the CRD.

The mandate of the corporation is to assist in the development and
management of low- and modest-cost rental housing, home ownership or
the repair of inadequate housing.

Huddart reminded the court that the Canadian Charter of Rights and
Freedoms only applies to "legislative, executive and administrative
branches of government. The Charter does not apply to litigation
between private parties."

The Young's case was against the CRD, not its housing corporation. But
now two sets of judges have ruled that the CRD and CRHC are separate
entities, even though the CRD is the corporation's lone shareholder
and most of the corporation's board members are CRD directors.

Amy Jaarsma, CRHC manager of operations, greeted the news of the
latest court news saying: "My moment of levity."

It has been a long battle, she explained.

"I think the fact that all the suits were found to be baseless was
heartening, but I knew they were," she said.

She also found the speed of the ruling encouraging. The judgment came
within a week of going to the appeal hearing.

"They (the judges) found that we're acting as our capacity as a
landlord and the legislation that we were acting under was the
Residential Tenancy Act," she said.

The judgment in effect means the Youngs should only fight their
eviction with the Residential Tenancy Office.

In fact, the Youngs lost their case when it went before an arbitrator
at the Residential Tenancy Office.

Arbitrators found that smoke escaped from the apartment into the
hallways and disturbed other tenants, a breach of the Residential
Tenancy Act. The arbitrator stated that a tenant's right to smoke
marijuana does not overrule other tenants' rights to peaceful
enjoyment of their homes.

The Youngs appealed the arbitrator's decision all the way to the
Supreme Court of B.C., which also sided with the landlord earlier this
year.

The Youngs did not respond to Saanich News phone calls.

Lucas knows the Youngs and has supported them through their battle.

He said the couple is too burnt out from the court cases to talk about
it. But, says Lucas, they are not finished fighting yet.

They plan to take the arbitration to the next level, the Supreme Court
of Canada.

Unlike the recent case, the appeal against the arbitrator's decision
is more likely to hinge on whether it is reasonable that the smoke
bothered the neighbours and whether the CRD could have done more to
accommodate smoking dope.

What irks Lucas is that the building allows cigarette smokers.

"If it was a non-smoking apartment, then I would suggest that,
unfortunately, we have to look at alternate suggestions of ingestion -
using vaporizers, using sprays or ingestibles," said Lucas.

"But in this particular case, it doesn't seem to make much sense to
kick out a man for smoking his medicine, does it?"

Before evicting them, the CRHC asked the Youngs to seal their door
leading to the hallway.

They refused, arguing they needed the airflow.

They also said it was unfair: cigarette smokers didn't have to seal
their doorways, so why should they?