Legal Eagle

Dear Mr Conroy,

Myself and a number of friends with MS have been cooperatively growing
our own medicine for many years. For a variety of reasons, most of our
group are opposed to applying to Health Canada for legal permits. One
of the arguments is that soon we will be able to grow legal anyway.
What will happen if you are successful with the Supreme Court
challenge in Clay, Malmo-Levine and Caine? Will we finally be able to
grow our own?

A:

While it remains unlawful, according to the Controlled Drugs and
Substances Act (CDSA), to possess, to grow, to possess for the purpose
of distribution, to traffick (which includes "giving" and merely
"transporting"), and to export or import cannabis or to conspire to do
so, without a federal government permit of one kind or another,
arguably the law remains unconstitutional insofar as the use of
cannabis by genuine medical patients are concerned. This argument is
based on the submission that the Marijuana Medical Access Regulations
do not meet the test for constitutionality required by the Ontario
Court of Appeal in Parker, in that "access" is now arguably more
difficult than before, when only the support of your treating
physician was required. Hopefully this argument will be sustained in
the pending challenge in Hitzig et al that is being pursued currently
in the Ontario Superior Court by Alan Young. I understand it will be
heard on the 18th and 19th of September 2002. (last-minute-update-next
court date is October 18th)

The Malmo-Levine, Caine and Clay trio of cases will now be heard
together in the Supreme Court of Canada on December 13th, 2002 in
Ottawa. It is virtually certain that the court will reserve judgement
until some time in the future before giving full written reasons for
this decision. The court might find the law to be unconstitutional,
but suspend the declaration of unconstitutionality for a period of
time to let the government try and get it right, as the Ontario Court
of Appeal did in Parker. While the Senate Report is encouraging and
the Parliamentary Committee will report in November, I wouldn't put
any money on any progressive action by any politicians pending the
decision of the Supreme Court of Canada, perhaps by late 2003.

If we win on all points in Clay and Caine, then possession will be
lawful for any purpose - medical or otherwise. I'm uncertain what they
will say about growing for personal use consistent with possession, as
the growing issue arising in Clay is not being argued directly.

Malmo-Levine deals with self-regulated distribution that minimizes the
black market risks to vulnerable groups, such as immature youths, the
mentally ill and pregnant women, as well as requiring members of the
Harm Reduction Club to learn to smoke more safely and pledge not to
drive, fly or otherwise operate complex machinery while high. Probably
the Natural Health Care Products regulations will cover situations
where someone markets Cannabis as "medicine". Certain consumer
protection standards will have to be met if the product is to be sold
on the open market, at least as medicine and eventually for
recreational purposes as well.

Hopefully, you will all be able to grow your own again, at least for
medicinal purposes, but the status of co-operatives, etc. remains up
in the air.

John Conroy, Q.C., CONROY& COMPANY

Barrister and Solicitor

2459 Pauline Street, Abbotsford, BC V2S 3S1

Telephone: (604) 852-5110

Fax: (604) 859-3361

Website: www.johnconroy.com