External link to Hitzig V. Canada decision at CANLII
Newshawk: Canadian Media Awareness Project (http://www.mapinc.org/cmap/)
Pubdate: Mon, 20 Jan 2003
Source: Trentonian And Tri-County News, The (CN ON)
Copyright: 2002, OSPREY MEDIA GROUP INC.
Author: Jack Le Blanc
MARIJUANA RULING MAY IMPACT LOCAL CASE
A group of seriously ill people's battle with Ottawa over a federal medical marijuana scheme may help a local man's plight.
Brighton defence counsel Dan Thompson said David Casteels' argument for a stay of production and trafficking charges should be successful in light of a recent court ruling that the federal government's Medical Marijuana Access Regulations are unconstitutional because they prevent more deserving people from exemption than they permit.
Casteels, 42, of RR3 Brighton, was charged with production and possession of a narcotic. Casteels testified he applied for a medical exemption to use marijuana for pain he suffers as a result of an accident that left his left leg 5/8 of an inch shorter than his right.
He made an application for a medical exemption after being fined $1,000 in August 2000 for possession of a narcotic.
"The precedent would be binding on the provincial courts which are dealing with the Casteels matter," Thompson said. "The justice in the case will be obliged to issue a stay ( of the charges ). A lot of people will be making applications for a stay on the grounds that medical marijuana regulations devised by the federal government do not comply with the direction of the court of appeal. It will be interesting. It ( Casteels case ) was put over to a March date for further medical evidence which will be irrelevant now."
Superior Court Justice Sidney Lederman's ruling is binding on lower courts and could play havoc on the laws that make marijuana possession illegal, lawyer Alan Young said.
"It's another nail in the coffin, and this is a big nail," Young said after 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 federal government was supposed to give medical exemptions to the Controlled Drugs and Substances Act which is the law that makes possession of pot illegal for everyone else. But Young argued in September there's so much red tape that the regulations discriminate against the people who are supposed to be allowed to smoke marijuana to ease the symptoms of their condition, ranging from multiple sclerosis to hepatitis C.
Young argued in court last year the regulations demand medical declarations that few doctors are willing to provide given the legal consequences.
The federal rules make it impossible for a doctor to recommend a dosage since marijuana remains unregulated.
The more than 300 people who have won a legal exemption for medical reasons are forced to break the law, resorting to illegal sources of supply as the federal government drags its heels on efforts to cultivate a pure supply for clinical trial.
"There's no steady source of marijuana unless you grow it yourself," Casteels said during the first day of his trial last October.
The federal government grew marijuana in a Manitoba mine shaft under a $5.7-million contract for clinical trials but refused to allow it to be distributed because it isn't pure enough.
"Everyone's overjoyed; I'm getting calls from across the country from this pot world," Young said. "They can't get out of bed in the morning, but they can get this news very quickly."
The law will fall unless Ottawa appeals the ruling or comes up with a new plan for medical-marijuana exemptions within six months, he said.
Justice Department spokesperson Dorette Pollard said the decision is being reviewed. The department has 30 days to appeal.
Canada's marijuana laws suffered a major setback earlier this month when a judge threw out possession charges against a 16-year-old boy in Windsor on a technicality.
The judge agreed with defence counsel Brian McAllister's arguments that flaws in the medical-marijuana regime negate the law's ability to prohibit possession of five grams or less of marijuana.
The Justice Department has launched an appeal in that case.
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