Canada continues to stagger down the twisted path toward marijuana law reform like a drunken sailor. After an Ontario Court of Appeal combined ruling Tuesday on a set of related cases, residents of Canada's most populous province who last week could possess and smoke small quantities of marijuana without penalty are now once again criminals. The ruling overturned a lower court decision in April invalidating Canada's marijuana possession laws because they failed to accommodate medical marijuana users.
To be more precise, the appeals court actually upheld a lower court's finding that the medical marijuana regulations were unconstitutional because they failed to provide patients with a legal source for their medicine. But where the lower court thus invalidated the marijuana possession law, leaving it up to parliament to craft a new one if it so desired, the Ontario Court of Appeals simply fixed the problem itself. It threw out portions of Health Canada's Medical Marijuana Access Regulations (MMAR) it deemed too onerous, thus satisfying itself that the marijuana possession law was once again valid. The MMAR, which have drawn criticism from patients and providers, were Health Canada's attempt to satisfy a 2000 Ontario court ruling invalidating the marijuana possession laws because they didn't adequately provide for medical marijuana usage.
"This narrow remedy would create a constitutionally valid medical exemption, making marijuana prohibition... immediately constitutionally valid and of full force and effect and removing any uncertainty concerning the validity of the prohibition," Ontario's appeals court held Tuesday in a 3-0 decision. "...This case is not about the social and recreational use of marijuana, but is about those with the medical need to use marijuana to treat symptoms of serious medical conditions. Exposing these individuals to the risks [of the black market] does not advance the objective of public health and safety."
While the decision is a judicial rebuff of efforts to gain legalization of recreational use by piggy-backing on the medical marijuana issue, it appears to open the door to licensed commercial medical marijuana cultivation and distribution by private individuals or the "compassion clubs" that have already sprung up around the country. The appeals court ordered Health Canada to remove MARR provisions that barred licensed growers from being paid for their pot, from growing for more than one patient at a time, and from working together with other growers. The court also gutted the requirement that patients get recommendations from two doctors, calling it "redundant."
"This was a good decision in the sense that they've cut restrictive regulations," said Vancouver attorney and Canada NORML (web site at http://www.iowatelecom.net/~sharkhaus/ temporarily) head John Conroy, "but it was disappointing in that we can't say it's legal anymore. This decision also makes clear that the government was effectively condoning the black market supply of marijuana to patients. Anyone who has been arrested in connection with black market medical marijuana shouldn't be charged or the charges should be stayed or there should be an absolute discharge," he told DRCNet.
Conroy's American counterpart, NORML (http://www.norml.org) head Keith Stroup was singing a similar tune. "People should not be discouraged by the fact that prohibition is back in Ontario," Stroup told DRCNet. "It is disappointing that marijuana is still prohibited in Canada, but it is a positive thing that they declared the MMAR invalid. Now, maybe the medical marijuana program can work more efficiently under these less onerous guidelines. In fact, one can hope that it might begin to be run in the manner envisioned by the court -- to provide assistance to seriously ill patients."
Brian MacAndrews of Cannabis Health magazine (http://www.cannabishealth.com), a Grand Forks, British Columbia, publication devoted to medical marijuana issues, told DRCNet the ruling was getting a mixed reaction from medicinal users and providers. "Some say they like it because it makes things a little easier for growers and users," he said. "It's a nice little step in the right direction. But what we're really looking for is complete repeal of an ancient and unworkable law. Let's not talk about legalization; let's talk about repeal of a bad law and abolishing prohibition."
So things stand in Canada this week. Pot possession can get you arrested again in Ontario, but things are a little better for medical marijuana. Now it's up to parliament to act on Chretien's decriminalization bill or the Canadian Supreme Court to issue its decision in the Malmo-Levine/Clay/Caine set of cases that challenge the right of the state to criminalize the weed.
"Now we wait for Malmo," said Conroy. "I hope it comes down soon." That ruling could come down any time, he said, but probably not before Christmas.