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Canada: Column: Legal Eagle

Newshawk: What's OnAir?
Pubdate: Fri, 1 Nov 2002
Source: Cannabis Health (Canada)
Page: 8
Copyright: 2002 Cannabis Health Magazine, redistributed by MAP by permission
Author: John Conroy
Bookmark: (Cannabis - Medicinal - Canada)

Legal Eagle


Dear Mr Conroy,

Myself and a number of friends with MS have been cooperatively growing our own medicine for many years. For a variety of reasons, most of our group are opposed to applying to Health Canada for legal permits. One of the arguments is that soon we will be able to grow legal anyway. What will happen if you are successful with the Supreme Court challenge in Clay, Malmo-Levine and Caine? Will we finally be able to grow our own?


While it remains unlawful, according to the Controlled Drugs and Substances Act ( CDSA ), to possess, to grow, to possess for the purpose of distribution, to traffick ( which includes "giving" and merely "transporting" ), and to export or import cannabis or to conspire to do so, without a federal government permit of one kind or another, arguably the law remains unconstitutional insofar as the use of cannabis by genuine medical patients are concerned. This argument is based on the submission that the Marijuana Medical Access Regulations do not meet the test for constitutionality required by the Ontario Court of Appeal in Parker, in that "access" is now arguably more difficult than before, when only the support of your treating physician was required. Hopefully this argument will be sustained in the pending challenge in Hitzig et al that is being pursued currently in the Ontario Superior Court by Alan Young. I understand it will be heard on the 18th and 19th of September 2002. ( last-minute-update-next court date is October 18th )

The Malmo-Levine, Caine and Clay trio of cases will now be heard together in the Supreme Court of Canada on December 13th, 2002 in Ottawa. It is virtually certain that the court will reserve judgement until some time in the future before giving full written reasons for this decision. The court might find the law to be unconstitutional, but suspend the declaration of unconstitutionality for a period of time to let the government try and get it right, as the Ontario Court of Appeal did in Parker. While the Senate Report is encouraging and the Parliamentary Committee will report in November, I wouldn't put any money on any progressive action by any politicians pending the decision of the Supreme Court of Canada, perhaps by late 2003.

If we win on all points in Clay and Caine, then possession will be lawful for any purpose - medical or otherwise. I'm uncertain what they will say about growing for personal use consistent with possession, as the growing issue arising in Clay is not being argued directly.

Malmo-Levine deals with self-regulated distribution that minimizes the black market risks to vulnerable groups, such as immature youths, the mentally ill and pregnant women, as well as requiring members of the Harm Reduction Club to learn to smoke more safely and pledge not to drive, fly or otherwise operate complex machinery while high. Probably the Natural Health Care Products regulations will cover situations where someone markets Cannabis as "medicine". Certain consumer protection standards will have to be met if the product is to be sold on the open market, at least as medicine and eventually for recreational purposes as well.

Hopefully, you will all be able to grow your own again, at least for medicinal purposes, but the status of co-operatives, etc. remains up in the air.

John Conroy, Q.C., CONROY& COMPANY
Barrister and Solicitor
2459 Pauline Street, Abbotsford, BC V2S 3S1
Telephone: ( 604 ) 852-5110
Fax: ( 604 ) 859-3361

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