A medical marijuana case has put Canada's marijuana laws in jeopardy. A July 31st ruling by the Ontario Court of Appeals found that the marijuana laws were unconstitutional and gave the Canadian government one year to rewrite them to include more workable exemptions for medical use. If the Canadian parliament fails to act, marijuana would become legal in Ontario. Other provinces could find themselves in the same position once similar court cases are heard.
The ruling came in the case of Terry Parker, a Toronto resident who uses marijuana to help alleviate the symptoms of epilepsy. Parker, who has been arrested numerous times for possessing or cultivating marijuana, challenged the constitutionality of Canada's marijuana laws. In 1997, an Ontario judge ruled that Parker indeed had the right to grow, possess, and consume marijuana as part of his medical treatment.
"It does not accord with fundamental justice to criminalize a person suffering from a serious chronic medical disability for possessing a vitally helpful substance not legally available in Canada," Judge Patrick Sheppard wrote in that ruling.
Ontario prosecutors appealed the ruling, but the Ontario Court of Appeals upheld Judge Sheppard's reasoning -- and then some. The Court ordered parliament to come up with new language that would protect medical marijuana users, and if parliament fails to do so within a year, the marijuana laws in Ontario will be wiped off the books.
Writing for a unanimous three-judge panel, Justice Marc Rosenberg noted that, "The choice of medication to alleviate the effects of an illness with life-threatening consequences is a decision of fundamental personal importance. Forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person."
The Canadian government has not yet decided how or whether to respond. It could appeal the ruling to the Canadian Supreme Court, and has 30 days in which to do so. It could amend the law to include stronger provisions for medical use. Or it could do nothing, in which case all marijuana use in Ontario would be legalized.
There is precedent in Canadian law for such a ruling. In 1988, the courts effectively struck down Canada's abortion laws when they found them unconstitutionally vague and ordered parliament to rewrite them. Parliament failed to act, and the laws were removed from the books. In fact, the court relied on that case, which cited the absence of clear standards for determining if a pregnancy threatened a woman's life or health in striking down the abortion laws. In this case, Justice Rosenberg wrote that there is no clear standard for what constitutes medical necessity.
While Parker's case was winding through the courts, the Canadian government had established a medical marijuana exemption, but the process, overseen by the federal Health Minister was slow, unwieldy, and failed to provide for access to safe, secure supplies of the drug. Only some 50 exemptions have been approved nationwide, while a recent survey by Toronto's Centre for Addiction and Mental Health found that in Ontario alone some 150,000 people used marijuana for medical reasons (http://sano.arf.org/announce/n_a0006a.htm). (Another 6.8% of Ontarians, or about 700,000 people, claimed recreational use.)
"It's like telling people 'If you want penicillin, get some bread and let the mould grow, and then you'll have your medicine,'" Alan Young, a lawyer representing Christopher Clary, another plaintiff in the appeal, told the Toronto Star.
Aaron Harnett, one of Parker's lawyers, told the Star the decision "went so far beyond what we hoped for" and called it an "enormous victory" for medical marijuana advocates.
When asked by the Star for his reaction to the verdict, Parker said, "It's just excellent. I very much appreciated the court's decision, and it's opened the gateway large enough for others to follow through."
But the ruling was not a complete victory for marijuana advocates. The appeals court refused to uphold Christopher Clay's appeal to overturn his possession and trafficking convictions on the grounds that government enforcement of marijuana laws unconstitutionally violated his personal autonomy, including the right to get high in his own home.
In dismissing Clay's argument, Justice Rosenberg wrote that Canada has a "rational basis" for banning recreational marijuana use, and mentioned concerns about impaired drivers and use among children.
Still, Rosenberg conceded that the marijuana laws have an "embarrassing history" and are based on "irrational, unproven, and unfounded fears." He also chided the government for arguing that the law serves to fulfill international treaty obligations, noting that those treaties allow for the availability of narcotics for medical use.