RECREATIONAL POT USERS CHEER, MEDICAL USERS STILL STRUGGLE

Warren Hitzig and Zack Naftolin have been friends for eight years, but they
can no longer speak to one another. Their silence is court-imposed, a bail
condition following their arrest during last summer's police raid of the
Toronto Compassion Centre (TCC), which distributed marijuana to about 1,200
seriously ill patients.

At the time, the high-profile raid raised a fury among medical marijuana
advocates. Police had largely left the St. Clair and Bathurst area centre
alone before that time, so their August 13, 2002, visit came as a surprise.
Naftolin, who was TCC's manager, describes the experience as "very scary."
At about 2pm, the front door was kicked in by police. The centre's security
guard was knocked to the ground, and according to Hitzig, the TCC's
director, about 12 officers came through the shop with their guns drawn.
Hitzig says that some of them "kept telling us they didn't want to do it,"
but others, he says, "were some of the biggest jerks I've ever met in my
entire life." Four people were charged, including the security guard and
receptionist, but only Hitzig and Naftolin's charges still stand.

Now, while Canada's recreational marijuana users celebrate the new
possession law introduced on May 27 by justice minister Martin Cauchon,
which will decriminalize simple possession, the lives of these two men
continue to be seriously disrupted by the raid's after-effects. As the two
prepare for a July 14 preliminary hearing on criminal charges, their
situation is a reminder of the ongoing plight of medical marijuana users,
whose access to the substance has been guaranteed by the courts, but who
continue to be stymied by the federal government in their efforts to get a
consistent, high-quality supply. In fact, the trafficking crackdown that
will accompany the new federal law may make things even more difficult in
future for those trying to distribute medical marijuana.

Naftolin has found a job at a hemp store, but Hitzig, after spending some
time studying at Concordia, is still looking for employment. "It's
completely changed my world," says Hitzig of last summer's raid. He founded
the TCC, and worked there for over five years. After such a long time out
of the traditional job market, he says, it's hard to find work again. Being
prohibited from speaking to Naftolin, he says, has also "been extremely
difficult because we've been friends for such a long time." Neither one has
been able to continue to work at what they are most passionate about:
helping people with fatal diseases gain some respite from pain.

Lawyers contend, however, that a series of recent court challenges has laid
the groundwork for success in the TCC case -- and moreover, that the case
could further alter the landscape of Canada's marijuana laws.

Paul Burstein, Hitzig's lawyer, plans to exploit the legal shifts that have
occurred over the last three years to argue that his client and Naftolin
were not only acting legally, but were fulfilling a constitutional
obligation in which the government has been remiss. Burstein is adamant
that having a source of high-quality marijuana is crucial. "A large
percentage of street-grown pot contains mould, pesticides, many of the
things that would be death to people who would need it for medical use," he
says.

Burstein, along with Alan Young, his former professor at Osgoode Hall, has
been at the forefront of recent legal challenges to Canada's marijuana
laws. Young helped to establish the TCC in 1998, and will be a witness
should a trial ensue. Both are passionate in their support of Hitzig and
Naftolin. Young calls the pair "good Samaritans" and "legitimate
caregivers, people who were committed to helping those in need."

Naftolin says that there was a five-page application for a person to become
a member of the centre. Patients had to submit a letter of diagnosis from a
doctor, and the TCC would call to confirm that the letter was real. "We
were really strict about our policy to become a member," agrees Hitzig. "I
knew what we were doing was illegal, but that's no reason not to be
responsible." They insist that they took precautions to ensure that only
those most in need of the drug to relieve their pain had access to it.
(Burstein also claims that undercover officers tried and failed on two
occassions to obtain pot.)

Hitzig says that he helped 1,200 "very, very ill people" during his time at
the centre, and that the difference pot made for many of them was "night
and day. We got one person actually walking out of his wheelchair."

In July, 2000, the Ontario Court of Appeal struck down Canada's Criminal
Code provisions against possession of marijuana, ruling that they were
overbroad because they included people who needed marijuana for medical
reasons. The court gave the government one year to fix the Criminal Code
before its ruling would come into effect. In July, 2001, the government
passed the Marijuana Medical Access Regulations, which permitted possession
for medical use.

But in July, 2002, Burstein and Young challenged the accesss regulations,
because while they permitted possession for medical purposes, they gave no
means of access for sick people. In a January ruling, Justice Sidney
Lederman agreed, striking down the regulations, but giving the government
six months to rectify the situation. That decision has been appealed, and
in the meantime, Health Canada has made no moves to remedy the regulations,
which will be otherwise rendered invalid on July 10.

Regardless of what action the government takes now, Burstein says he will
make a defence based on the argument of necessity. "Lederman's decision,"
says Burstein, "essentially can boil down to this. There's a guy who's
dealing to sick people. The government has a constitutional obligation to
provide [drugs to] sick people. And here's the guy who's doing it. So in
terms of a defence of necessity, it's not just the people who need the drug
who can raise necessity, it's people who are assisting in providing
necessary medical services."

But Health Canada's lack of action on access underscores the difference in
the approaches taken by two federal departments, justice and health, on
marijuana legislation.

While justice minister Martin Cauchon just proposed eliminating criminal
penalties for simple possession of marijuana -- meaning possession of up to
15 grams of pot would be a minor offence punishable by a fine -- the health
department continues to refuse to distribute the high-grade medical
marijuana it has grown in a mine out West.

Burstein says the government has a large stock of "medical-grade marijuana
sitting in storage in Flin Flon [Manitoba]," and it has delayed release of
the drug by saying it hasn't done enough studies and the pot may be too
potent. On this point he is particularly scathing: "Whatever pot they've
grown there, it's better than the pot they're forcing people to get
otherwise. They actually know that it's better than they're claiming."

So while Cauchon is intent on decriminalization despite pressure from the
US government, health minister Anne McLellan, despite court rulings
guaranteeing access, appears to be still stalling.

In the meantime, as that discrepancy plays out on a local, case-by-case
level, Hitzig is left pondering the prosecution against him, which he
maintains is more than a little bit ridiculous. "I'm not a threat to
society," he says. "I'm not a menace to society."