Constitutional Rights

Shannon Kari
Canwest News Service
Friday, September 19, 2008

TORONTO - People with severe medical conditions have the constitutional right to easily access government-supplied marijuana, an Ontario court heard Friday.

Health Canada has been making "a good-faith effort with its legal supply," government lawyer Lisa Csele said in Ontario Superior Court.

The government is asking Justice Eva Frank to overturn a ruling last year by a provincial court judge in Toronto who found there was no law against simple possession of pot, because the medical marijuana scheme was still invalid.

Frank reserved her decision.

Justice Howard Borenstein concluded that a government "policy" to supply marijuana to medical users through Prairie Plant Systems Inc. was not sufficient, in dismissing charges against Clifford Long, a Toronto man arrested with $40 worth of cannabis.

"Reasonable access is now dependent on policy, not law - on a law that has been found to have set up barriers to reasonable access," wrote Borenstein.

The judge based his ruling on a 2003 Ontario Court of Appeal decision that found some sections of the government's medical marijuana regulations to be unconstitutional because authorized users had to obtain their medicine on the black market.

The court gave the federal government options to fix the problem - by allowing compassion clubs to operate or by becoming the sole supplier for medical users.

The changes "can easily be implemented with dispatch, simply by regulation," said the Court of Appeal.

Health Canada responded by re-enacting some of the unconstitutional restrictions, including a prohibition on a designated producer growing for more than one user.

It also entered into the contract with Prairie Plant, which has enough supply for all authorized users, although some medical marijuana advocates have complained about the quality and the price.

The pledge to produce enough marijuana for medical users is a result of policy, rather than any formal regulation or law.

Csele agreed that if the medical marijuana scheme is unconstitutional, then there is no law against simple possession of cannabis. But she urged Frank to look at all of the government's actions when deciding if it has done enough to comply with the Court of Appeal's ruling in 2003.

Restrictions on a non-government supply for medical users are permitted as long as Health Canada provides enough product, said Csele.

"What about the potential for arbitrary change (in the policy)?" Frank asked.

"There is no evidence people are not receiving their marijuana," Csele responded. If the federal government does not provide an adequate supply, then medical users could launch a court action, she suggested.

The government must enact formal regulations that recognize its responsibilities, said Corbin Cawkell, who represents Long. "A policy is not enough," said Cawkell, who noted that the federal government has "been foot dragging" on the medical marijuana issue since 2000.

The ruling by Borenstein is one of a number of decisions in the past eight years to find aspects of the medical marijuana regulations to be unconstitutional.

Earlier this year, a Federal Court of Canada judge found some of the restrictions on designated growers to be invalid. That decision is under appeal.