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External link to Hitzig V. Canada decision at CANLII

Thursday, January 9
Ontario court strikes down Ottawa's medical pot rules

Canadian Press

Toronto A group of seriously ill people has won the latest battle in an ongoing war with Ottawa over a federal scheme to permit the use of medical marijuana that the patients say violates their constitutional rights.

An Ontario judge agreed Thursday that the federal government's Medical Marijuana Access Regulations are unconstitutional because they prevent more deserving people from exemption than they permit.

The ruling from Superior Court Justice Sidney Lederman is binding on lower courts and will likely wreak further havoc on the laws in Canada that make possession of marijuana illegal, said lawyer Alan Young.

"It's another nail in the coffin, and this is a big nail," an elated Mr. Young said after learning of the ruling.

"We feel it will be appealed, but it's the light at the end of the tunnel ...I can't really see the law maintaining any operation after this year. It's sitting on a really precarious foundation."

The regulations are supposed to give eligible people an exemption from the Controlled Drugs and Substances Act, the law which makes possession of pot illegal for everyone else.

Instead, Mr. Young argued in September, the regulations are so snarled in red tape that they discriminate against the very people they're supposed to help: those who smoke pot to ease the symptoms of their condition.

Mr. Young said he fielded phone calls all afternoon from supporters of his clients, seven people from across Ontario who use pot to contend with a variety of ailments, including multiple sclerosis and hepatitis C.

"Everyone's overjoyed; I'm getting calls from across the country from this pot world," Mr. Young said. "They can't get out of bed in the morning, but they can get this news very quickly."

Unless Ottawa appeals the ruling or comes up with a new medical-marijuana regime within six months, that law will fall, said Mr. Young, who's convinced the federal government's reluctance to relax marijuana prohibition in Canada is based on U.S. disapproval.

"It reaches a point where the government will realize it can't salvage the law, even if it realizes the Americans will be unhappy," he said. "Their hands will become tied."

Department of Justice spokeswoman Dorette Pollard said federal lawyers were perusing the judgment "as we speak" and were expected to advise Health Minister Anne McLellan before the end of the day on what steps to take.

"They're reviewing the decision, and will advise the minister accordingly," Ms. Pollard said. They have 30 days to decide whether or not to file an appeal, she added.

The ruling is the latest blow to Canada's marijuana laws, which suffered a major setback earlier this month when a judge threw out possession charges against a 16-year-old boy in Windsor, Ont., on a technicality arising from the regulations.

In that case, the judge agreed with lawyer Brian McAllister's arguments that flaws in the medical-marijuana regime effectively negate the law's ability to prohibit possession of five grams or less of marijuana.

The Department of Justice has already filed an appeal in that case.

Mr. Young argued in court last year that the regulations demand medical declarations that few doctors are willing to provide given the legal consequences.

They also make it impossible for a doctor to recommend a dosage, since the drug remains unregulated in Canada.

Even those who do win a legal exemption more than 300 people in Canada are currently permitted by Ottawa to smoke pot for medical reasons are forced to break the law, resorting to black-market weed because the government is dragging its heels on efforts to cultivate a pure supply for clinical trial.

There was no immediate word Thursday on whether the ruling forces the government to make available the marijuana it grew in a Manitoba mineshaft under a $5.7-million contract for clinical trials.

Ms. McLellan had refused to allow the marijuana to be distributed because she says it simply isn't pure enough.

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