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Medicinal marijuana user William Palmer smokes marijuana at a protest in Toronto last month

Smoking pot not a charter right - lawyer

By James McCarten / The Canadian Press

Toronto - The right to smoke marijuana for medicinal reasons is no more enshrined in the Charter of Rights than the right to smoke crack cocaine, lawyers for the federal government argued Friday.

Yet that's the legal logic of a group of chronically ill Canadians who are in court to challenge the rules governing Ottawa's medical pot program, said federal lawyer Lara Speirs.

Their argument "dilutes" the guarantee in Section 7 of the charter to life, liberty and security of the person "to the point of absurdity," Speirs told Superior Court Justice Sydney Lederman.

"Taken to its logical conclusion, one could argue that Section 7 guarantees the right of a person to smoke crack cocaine" or engage in other dangerous or otherwise foolhardy behaviour.

Ottawa "strenuously opposes" that argument, she added.

"To say that the charter protects foolhardy decisions is simply absurd."

The applicants consist of a group of people who suffer from various medical conditions ranging from AIDS and hepatitis C to epilepsy and multiple sclerosis.

They want the court to strike down as unconstitutional a regulatory scheme governing access to medicinal pot that they consider a "cruel hoax," as well as the law that makes possession a criminal offence.

They are also demanding access to Ottawa's stash, grown under high security conditions deep in an abandoned Manitoba copper mine under a $5.7-million contract.

Federal Health Minister Anne McLellan has so far refused to allow the marijuana to be distributed because she says it simply isn't pure enough. Health Canada is not in the business of distributing medication, nor should it be, Speirs argued.

The regulations allow permit holders to obtain marijuana from a licensed grower, or to become licensed to grow it themselves, Speirs said.

The applicants have argued that the restrictions on growers - which include having to submit to warrantless searches, including a search of private computer records - are too severe.

Four members of the principal group of applicants are licensed under Ottawa's Medicinal Marijuana Access Regulations to possess the drug, while the other three are not.

Those who don't have possession permits have merely demonstrated a preference to treat their symptoms with marijuana, not a medical need as stipulated in the regulations.

But Lederman appeared unconvinced.

"Is it sufficient that it's a reasonable choice to alleviate the symptoms associated with certain illnesses?" he asked. "What does 'medically necessary' mean here?"

Whatever the answer is, the applicants without permits don't meet it, replied Speirs.

"Whatever label you want to use, this theshold is far higher than a mere preference," she said. "That, Your Honour, is all the applicants have demonstrated."

An eighth applicant, Terry Parker, has already been given a green light to possess marijuana by the Ontario Court of Appeal in order to treat symptoms of epilepsy.

But Parker hasn't even bothered to apply for a possession permit, said Frankel, and therefore has no standing on which to appeal for the regulations to be struck down.

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