Court challenge aims to legalize all cannabis use

Advocates say previous rule a 'mockery'
Shannon Kari, National Post
Published: Monday, June 01, 2009

Medical marijuana advocates are planning a court challenge aimed at legalizing all cannabis use, in response to the latest restrictions announced by Health Canada.

The federal government announced last week that it would allow designated producers to grow marijuana for as many as two medical users, instead of a maximum of one, permitted under the old regulations.

The previous rules were ruled unconstitutional by a Federal Court of Canada judge in January, 2008, because they did not provide for a sufficient legal supply of cannabis for medical users without having to use the black market.

Health Canada appealed unsuccessfully to the Federal Court of Appeal and Supreme Court, which refused in April to hear the case.

It was the eighth time in the past decade that Health Canada has lost in court trying to uphold its medical marijuana policies and regulations, each time over restrictions on supply.

The federal government's decision to allow producers to grow for no more than two users is a "mockery" of the courts, said lawyer Ron Marzel, who was part of the successful Federal Court challenge to the previous regulations.

The most recent restrictions for medical producers that were struck down were virtually identical to ones that were found to be previously unconstitutional by the Ontario Court of Appeal. The rules "create an alliance between the government and the black market," to supply "the necessary product" wrote the appeal court in October, 2003.

One option for medical users is to go back to the Federal Court to ask it to find that the two-to-one ratio is also invalid.

However, the response from Health Canada would likely be to start another round of appeals in court, observed Mr. Marzel.

"It is time for the vicious cycle to end. It means we have to take it to the next level, to show the government it cannot thumb its nose at our courts," said Mr. Marzel.

The lawyer explained that he is organizing a court challenge this summer on behalf of a number of people in Ontario facing marijuana trafficking charges, and has asked that all charges be dismissed.

If he is successful, it would effectively mean that there is no prohibition on possessing or producing marijuana, for medical or recreational use.

"This is the only way. The courts have repeatedly given the government time to come up with a workable solution. They didn't do it. Health Canada has brought this upon itself," suggested Mr. Marzel.

For several months in Ontario in 2003 there was no valid prohibition against simple possession of marijuana, as a result of a Superior Court decision related to the flaws in the medical marijuana regulations.

Similar arguments will be made by Mr. Marzel in asking a court to strike down all prohibitions, unless Health Canada enacts regulations that allow for a legitimate supply for medical users.