MARIJUANA RULING A VICTORY FOR THE ILL

A federal program to supply marijuana to the seriously ill dehumanizes
users by forcing them onto the black market to obtain a reliable
supply, the Ontario Court of Appeal has ruled.

It said bedridden patients have little choice but to acquire criminal
contacts and tolerate the high costs, inherent dangers and
interruptions of an underworld supply.

Yesterday's 3-0 ruling allows ill people to grow their own supply or
obtain it from designated growers. At the same time, it upheld the law
prohibiting possession of the drug.

The judgment ends a period of chaos in which some police forces had
virtually stopped enforcing the possession law after a ruling in 2000
that the government's Controlled Drugs and Substances Act was
unconstitutional because it failed to provide an exemption for medical
use. The federal government appealed.

"As of 9 a.m. this morning, the free season on marijuana is over,"
lawyer Alan Young said. "The deficiencies in the law have been cleared
up by the court."

The ruling leaves uncertain the thousands of charges laid during a two-
year period in which the law was held to be invalid.

And it opens the door to large-scale, private cultivation to supply
large numbers of people whose pain is alleviated by marijuana.

Mr. Young, who teaches at York University's Osgoode Hall Law School and
represents seven people who want the right to a legal supply of medical
marijuana, said the ruling ends Ottawa's controversial growing program
in Flin Flon, Man. "As we speak, I'm sure they are dismantling it," he
said.

Mr. Young said he will pursue a licence for a group of well-heeled,
"reputable" individuals who want to set up a massive medical-marijuana
operation.

Rather than striking down the entire federal scheme yesterday, the
appeal judges whittled away several provisions related to medical
marijuana use to make it comply with Charter guarantees of life,
liberty and security of the person.

Health Minister Anne McLellan said she was "heartened" that the court
upheld the medicinal access regulations, even if it did strike down
some provisions.

Mr. Young said that while the ruling helps the ill, it is a defeat for
marijuana reformers. He said the court was able to uncouple the vexing
problem of medicinal marijuana from the overall issue of recreational
use.

Momentum is now likely to drain away from the campaign for
decriminalization, Mr. Young said. With the future of a federal
decriminalization bill now clouded, Mr. Young said, the best hope for
marijuana enthusiasts may be a constitutional challenge the Supreme
Court of Canada is considering.

Justice Minister Martin Cauchon had little to say yesterday other than
to observe: "It is quite clear that the vehicle that we have chosen in
order to give access to medicinal use of marijuana -- which is a
regulation -- has been declared valid by the courts."

In their ruling, the Court of Appeal judges, Mr. Justice David Doherty,
Mr. Justice Stephen Gouge and Madam Justice Janet Simmons, sympathized
with seriously ill patients. "Exposing these individuals to risks does
not advance the objective of public health and safety," they said.
"Rather, it is contrary to it. Equally, driving business to the black
market is contrary to better narcotic drug control."

They excised from the law:

- A "redundant" requirement that a second physician endorse a patient's
application to receive medical marijuana;

- A restriction preventing designated, licensed growers from being
compensated for supplying marijuana to sick people;

- A provision preventing licensed growers from growing marijuana for more
than one person;

- A prohibition against licensed growers producing marijuana in common
with more than two other growers.