Court ruling may change marijuana laws

Monday, September 22, 2008
National Post
by Shannon Kari

There may be no legal prohibition against possession of cannabis in Ontario if a Superior Court judge upholds an earlier finding in an ongoing challenge to the medical marijuana laws.

Health Canada 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 possession, because the medical marijuana scheme was still unconstitutional.

A provincial court ruling is not binding on other judges in the province, as it would be if it is by a Superior Court judge.

The federal government has conceded that if Judge Frank finds that the medical marijuana scheme is invalid, then the prohibition against simple possession also cannot stand.

But it argued in court on Friday that its "entrenched policy" of providing a supply of cannabis to medical users complies with previous rulings by the Ontario Court of Appeal on this issue.

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

She suggested provincial court Justice Howard Borenstein made legal errors last year when he concluded that a government "policy" to supply marijuana to medical users through Prairie Plant Systems Inc. was not sufficient, and dismissed charges against Clifford Long, a Toronto man arrested with $40 worth of cannabis.

"Reasonable access is now dependent on policy, not law," wrote Judge Borenstein.

The judge based his ruling on a 2003 Ontario Court of Appeal decision that struck down some sections of the government's medical marijuana regulations 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 or 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. It is estimated that only about 20% of the more than 2,000 authorized users in the country get their marijuana from Prairie Plant, in part because of complaints about the quality and the price charged by Health Canada.

Ms. Csele urged Judge 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.

"What about the potential for arbitrary change [in the policy]," Judge Frank asked.

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

The government must enact formal regulations that recognize its responsibilities, said Corbin Cawkell, who represents Mr. Long. "A policy is not enough," said Mr. Cawkell.

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