Ottawa loses medical marijuana challenge

Meagan Fitzpatrick, Canwest News Service

Published: Friday, January 11, 2008

Medical marijuana is displayed in Los Angeles, Aug. 6, 2007.Mario
Anzuoni/ReutersMedical marijuana is displayed in Los Angeles, Aug. 6,
2007.

The federal government lost another court challenge to its
controversial medical marijuana program, and now has 30 days to decide
whether to appeal the ruling that declared one of its key policies
unconstitutional.

Under the current set of regulations, licensed producers are only
allowed to grow the drug for one patient at a time. Federal Court
Judge Barry Strayer said that one-to-one ratio violates the Charter of
Rights and Freedoms.

The decision, the latest in a string of court cases, will essentially
mean more choice for approved medical marijuana users and should
provide easier access for them to the drug.

"What the federal court effectively did was assert that the government
of Canada does not have a monopoly over the production and
distribution of medical marijuana," said Alan Young, one of the
lawyers that launched the court battle on behalf of 30 patients.

Authorized users who cannot grow their own marijuana because they are
too ill, or for other reasons, must then rely on a sole source
provider -- either a licensed private producer, if they can find one
willing to produce only for them, or the government, which buys the
plants from a Saskatchewan-based company.

"In my view it is not tenable for the government, consistently with
the right established in other courts for qualified medical users to
have reasonable access to marijuana, to force them either to buy from
the government contractor, grow their own or be limited to the
unnecessarily restrictive system of designated producers," Judge
Strayer wrote in his decision, which was released late Thursday.

The one-to-one ratio was first struck down by an Ontario appeal court
in 2003, but the government reinstated the policy several months
later, prompting the current court challenge.

"We're reviewing the decision," said Paul Duchesne, a spokesman for
Health Canada, which regulates the program. He would not comment
further and did not indicate how quickly the government would decide
about appealing the ruling. "As soon as there is a decision we will
make that clear," he said.

Mr. Young and his co-counsel Ron Marzel described the court's ruling
as a "nail in the coffin" of the one-to-one ratio restriction.

"In theory, patients now have a choice whether to buy from the
government or whether to create the small collectives of patients that
go to an experienced and knowledgeable grower," said Mr. Young.

There are about 2,000 people legally allowed to use marijuana for
medical purposes but fewer than 20% buy it from the government's
supplier. Some patients say the quality is poor and others say only
one strain of the plant is offered -- different strains having unique
therapeutic effects.

"It's a clear message to Ottawa that they can't stand in the way of
providing much-needed medication for these individuals," said Mr. Marzel.

He does expect, however, that the government will appeal the decision.

If it does, or if it introduces a policy that only slightly changes
the ratio, the lawyers say they will head back into court. Mr. Young
said they will fight for a measure called supervisory jurisdiction,
which would require Health Canada to submit progress reports to the
court on the program's operation.

Strayer has already denied that request but Young said he will try
again and has not ruled out lawsuits against Health Canada.

"I'm just trying to clean up the law and to ensure that sick people
have proper, lawful access to a medicine of their choice," said Mr.
Young, a professor at Osgoode Hall Law School in Toronto. "But because
of all the obstacles that have been put in that path over the last
eight years, there will reach a point where it's no longer about
trying to use the courts to try and improve the program but it will be
about punishing Health Canada for their incorrigibility."