An inspiration to many others
On December 10, 1997, Judge Patrick Sheppard of the Ontario Court of Justice found Toronto resident Terry Parker not guilty of possession and cultivation of marijuana, by reason of medical necessity. Judge Sheppard’s decision might pave the way for legal medical pot in this country, and was a major victory for Canada’s most determined, if idiosyncratic, medical marijuana activist.
Epilepsy and Prescription drugs
Born in 1955, Terrence Leslie Frederick Parker had a childhood which could serve as the backdrop to a Stephen King novel. Hit on the head by a swing at age four, Parker began developing extreme epilepsy, a condition that has shaped his entire life.
Epilepsy is a serious neurological disorder that, until this century, almost guaranteed a life-long stay in a mental hospital. While the severity of seizures differs from person to person, a seizure generally involves complete loss of muscle control and sometimes unconsciousness.
After the accident, Parker began having dozens of seizures a week. He also began consuming a huge regime of prescription drugs in an effort to ease his condition. “I’ve had drugs since I was four-years-old,” Parker said ruefully, in an interview following his court victory. “Not hash, but pharmaceutical dope.”
Doctors prescribed Parker anti-convulsive drugs such as Dilantin, Mysoline and Librium, among others, but they didn’t do much for him except produce awful side-effects, including blurred vision, extreme exhaustion and slurred speech. Parker was expelled from school in grade six because his seizures were considered too disruptive, and things only got worse for him after he exited from the public education system.
The First Lobectomy
On December, 1969, a 14-year-old Parker was taken to Sick Kids Hospital in Toronto, for the first of two “psychosurgeries” that were supposed to provide a surgical cure for his epilepsy.
Parker maintains that these operations were done without his informed consent, and that they were actually part of the systematic and ongoing use of epileptic children as guinea pigs for mind-control experiments by the CIA and other government organizations.
In the first operation, Parker was given a general anaesthetic followed by a right temporal lobectomy ? a less serious form of the more commonly known lobotomy ? in which surgeons scraped out some of his brain.
That operation was not a great success, and Parker had a grand-mal seizure in the recovery room. Following the failure of the surgery, Parker understandably became extremely depressed and began spending time in psychiatric institutions.
The Second Lobectomy
On January 27, 1972, Parker, now 16, received a second lobectomy, under a local anaesthetic. One of the most invasive forms of surgery imaginable was performed on a depressed teenager as he watched and listened, wide awake.
“Imagine what’s it’s like to have your fucking skull cracked open, and have doctors drill holes in your head,” Parker recalls, voice rising in anger. “You can hear the drill going into your head, you can hear the drill, you can hear your skull tearing apart. And all the doctors heard from me was me saying ‘What the fuck are you doing to me? Get this over with, hurry up!'”
To add insult to injury, this torturous event was no more successful than the first surgery, and in fact may have worsened his condition by adding another reason for conulsions, “post-psychosurgical convulsive disorder.” Parker continued having seizures, continued taking a regime of prescription anti-convulsant drugs, and continued to find that his disability prevented him from leading a normal life.
Parker Smokes Pot
Parker, who figures he’s been hospitalized over 100 times, continued to spend time in and out of hospitals and mental institutions. Ironically, it was during a stay at the Lakeshore psychiatric hospital that he first discovered the only substance that abated his awful seizures. A hospital worker introduced Parker to marijuana, which Parker initially smoked just to get high and ease his mind from his physical sufferings.
Parker quickly realized that when he smoked a few joints he “didn’t feel any fear,” a feeling of panic (known as prodrome) being one of the precursors to his epileptic seizures. In fact, by using pot in conjunction with his legal anti-convulsant drugs, Parker didn’t have many epileptic seizures at all.
At the urging of his family physician, Dr Michael Rachlis, Parker began keeping a diary to record the frequency of his seizures. Between December, 1980 and March, 1981, Parker noted he suffered several grand and petit mal seizures on days he didn’t smoke up, and relatively few seizures on days that he did. Dr Rachlis was sufficiently impressed to later write that, “marijuana makes a significant difference in Mr Parker’s seizure control and the quality of his life.”
Canada’s first semi-legal marijuana user
His family doctor might have been supportive, but the police weren’t. Back in the ’80s, the War on Drugs was heating up in both Canada and the United States. In 1987, Parker was charged with possession of marijuana and appeared in a Brampton courthouse for trial.
Nonetheless, Parker managed to win his case. Judge Kenneth Langdon accepted Parker’s plea of “medical necessity” and acquitted him of possession charges, thus making him Canada’s first semi-legal marijuana user. A year later the feds appealed the decision, and Parker won again.
The right to inhale
Parker didn’t keep the fact he had a right to inhale a secret: by the late ’80s and early ’90s, he had become something of a fixture in the marijuana reform scene. I recall seeing Parker play guitar and give a speech at a “Jokes for Tokes” pro-pot evening of entertainment and speeches in a Toronto bar in 1993. That same summer, he appeared at a “Marijuana Mardi Gras” in Toronto, and in a pleading voice urged the small crowd to “vote Green, vote Libertarian, vote for anyone who’s against the status quo.”
In the fall of 1993, Parker was expending much of his energy picketing Sick Kids Hospital, handing out literature and haranguing passer-bys about his twin lobectomies, which were performed without his informed consent. He also busied himself writing and phoning journalists, doctors, and health and government officials, describing his surgical ordeal and discussing the need for medical marijuana.
Parker’s antics at this point included marching around Toronto with a six foot wooden sign bearing pro-pot slogans. He quickly developed a reputation as a highly determined, and very idiosyncratic, drug reform activist.
Cannabis: California and Canada
The public and mainstream press might have dismissed Parker as a kook, but medical marijuana was rapidly becoming a very serious issue, in both the United States and Canada.
In the early 1990s, San Francisco citizens passed Proposition P, which instructed police to place a low priority on the arrest of medical marijuana users. Coinciding with this referendum, “cannabis buyers’ clubs” began sprouting up all across California. Spearheaded by long-term pot activists such as Dennis Peron, Buyers’ Clubs offered low-cost pot to people with legitimate medical disorders.
Canada was still light-years away from California in terms of accepting marijuana as a legitimate medicine. The new Controlled Drugs and Substances Act, which the Liberals brought to a House of Commons vote in the fall of 1995, made no provisions whatsoever for medicinal cannabis.
While this new drug law was undergoing Parliamentary and Senate review, two unrelated events occurred that would prove pivotal for Terry Parker.
A good lawyer
In May of 1996, Regina multiple sclerosis sufferer Grant Krieger tried unsuccessfully to openly import several hundred grams of marijuana he’d purchased in Amsterdam into Canada. The Dutch, who are famously tolerant of pot-smoking within their borders, weren’t enthusiastic about letting Krieger exit their nation with cannabis in tow. Krieger was stripped of the substance he called medicine in Holland and sent back home, potless and sicker then before.
Krieger’s arrival at Toronto’s Pearson International Airport made national headlines, and sparked media interest in the subject of medical pot in Canada. Among those who greeted the wheelchair-bound Krieger at the airport were Aaron Harnett, a criminal lawyer from Toronto. Harnett was Krieger’s lawyer at the time, and he met Terry Parker for the first time at the airport.
Shortly after greeting Krieger, Parker found himself in need of a good lawyer. On July 18, 1996, Metropolitan Toronto police raided Parker’s apartment and charged him with possession, cultivation, and trafficking after they found 71 pot plants in his residence.
In the summer of 1997, London, Ontario hemp store owner and cannabis activist Chris Clay went on trial, charged with four pot-related counts that stemmed from a raid on his business and home in 1995. Justice John McCart found Clay guilty of possessing and trafficking marijuana, but proved surprisingly sympathetic to the cause of reform. The judge spoke positively of decriminalization initiatives in Europe and parts of America, and noted that as far as the evidence showed, marijuana use was relatively harmless, didn’t lead to addiction or psychosis, and didn’t cause users to try harder drugs.
Justice McCart also hinted that Clay would have had a stronger case had he been a medical marijuana user. Justice McCart cited the various ailments pot can provide relief for, and then noted that, “Parliament may wish to take a serious look at easing the restrictions that apply to the use of marijuana for? medical uses.”
Terry on Trial
Justice McCart’s comments were duly noted by Attorney Harnett when it became Terry Parker’s turn to face trial. Harnett echoed Chris Clay’s strategy, and based his defense on Section 7 of the Charter, which states that “Everyone has the right to life, liberty and the security of the person and the right not be to deprived thereof except in accordance with the principles of fundamental justice.”
Since Parker uses pot as a medical necessity (a fact already established ten years prior in his previous court appearance), Harnett argued that Parker’s rights were violated when police removed his medicine from his apartment and charged him with using it.
Harnett presented the court with affidavits entered by Dr Lester Grinspoon, author of Marihuana: The Forbidden Medicine, Robert Randall, an American glaucoma sufferer who in the 70’s became the first American to receive medical marijuana from his government, and Dr John Morgan, professor of Pharmacology at City University of the New York medical School and an expert on cannabis.
Guilty of Trafficking
Judge Patrick Sheppard rendered his verdict on December 10, 1997, and began by finding Parker guilty of trafficking, based on a throwaway line Parker made when police raided his apartment in 1996.
According to police reports, Parker was asked: “What do you do with all this Terry?” Parker replied, “I use most of it, and I give some to some people who need it for their seizures and cancer.” Under Canadian drug law, that verbal statement was enough to charge and convict Parker as a marijuana trafficker.
Proven Medicinal Value
Justice Sheppard then said he agreed with the findings Judge McCart had made at Chris Clay’s trial: “Consumption of marijuana is relatively harmless compared to the so-called hard drugs and including tobacco and alcohol.”
Justice Sheppard added that “health-related costs of cannabis are negligible when compared to the costs attributable to tobacco and alcohol consumption,” and that “consumption in so-called ‘decriminalized states’ does not increase out of proportion to states where there is no decriminalization.”
Although touching on some of the physical harms pot can cause, such as bronchial pulmonary damage, Justice Sheppard said marijuana seems to have proven medicinal qualities, and is more effective than “oral medications” such as Marinol (a synthetic THC pill that is legal to give to cancer and AIDS patients in Canada).
“It is clear on the evidence specific to the facts of this case that Mr Parker’s cultivation of marijuana was incidental to his need to possess marijuana for its therapeutic medical use for the treatment of epilepsy,” Justice Sheppard intoned. “It allowed him to control the quality of the drug smoked to maximize its benefit and minimize any risks from a tainted or adulterated product.”
“Further, it was an economic necessity for him to grow his own marijuana. All witnesses agree that at illicit street prices, the marijuana used by Mr Parker would cost approximately $5,000 annually. Mr Parker lives on disability benefits [from the Canada Pension Plan]. Therefore, little income would remain for the other necessities of life, food, shelter, transportation and clothes, if he had to pay street prices for his marijuana.”
Life, Liberty, Security
Justice Sheppard discussed Harnett’s constitutional challenge, asking whether the “accused stands a risk of being deprived of his right to life, liberty and security as protected by section 7 of the Charter?” The Justice said Parker did stand such a risk, noting that the beneficial therapeutic effects of smoking marijuana would not be available in a jail setting, so “if a seizure followed, then Mr Parker could be at real risk of injury or death.” In other words, Parker’s life would be at stake were he to be jailed and denied his medicine.
Justice Sheppard noted that Parker’s 1987 trial gave him the right to use a “medical necessity” defense any time he was charged with possession, but that this defense didn’t stop cops from arresting him; it was merely a tool he could use once he was actually in a courtroom. Justice Sheppard said he agreed that Parker’s liberty was still at stake by using marijuana for medical reasons.
Finally, the judge said “security of the person,” according to interpretations of the Charter, could be extended to the right to secure medical treatment ? in Parker’s case marijuana, since nothing else helped his seizures. “Good health is of personal importance,” noted Justice Sheppard.
As everyone in court held their breath, Judge Sheppard announced that he accepted Harnett’s defense; that Terry Parker’s rights under the Charter had been violated. The judge acquitted Parker of possession and cultivation charges and ordered police to return his pot plants to him ? an order to which the the Metropolitan Toronto Police have been slow to respond.
Justice Sheppard “read down” (but did not strike down) sections of the Narcotic Control Act and the Controlled Drugs and Substances Act which prohibited “persons who possess or cultivate Cannabis for their personal medically approved use.”
Great chaos broke out in the media that afternoon. Parker’s acquittal on possession and cultivation charges made headlines around Canada, and was featured as one of the top stories on the December 10 CBC-National News and CTV News. The tabloid Toronto Sun ran a front page photo of a grinning Parker, under the headline, “Now it’s a legal smile.” The Toronto Star and the Globe and Mail also ran prominent stories. In addition, the Parker verdict made the Canadian Press newswire and American wire services, and was heavily featured on CBC Radio’s “Cross Country Checkup” and radio talk shows.
The “Parker Defence”
In their attempt to explain what the verdict meant, many journalists managed to get the story wrong: the Parker ruling did not “legalize” medical marijuana, or provide medicinal users with a “get out of jail free” defense.
“The ruling does not mean that anyone with any illness can go smoke pot now,” notes Alan Young. In fact, the ruling isn’t binding on any other courts inside of Ontario, much less outside the province.
The significance of the Parker case, argues Young, is due to the fact that “Parker based his defense on the Charter of Rights and Freedoms? the difference is that in pre-Charter days the decision would have only applied to Parker and would have no implications for any other medical patients.”
Back in ’87, Parker limited his defense to “medical necessity” ? not constitutional rights, the latter making all the difference.
“When you raise your right to medical marijuana as a constitutional claim it has broad implications, because presumably now this ruling ? although it will be appealed of course ? will apply to anyone who can present cogent evidence of a medical necessity,” Young explains.
Medical pot defendants, in other words, can bring up a “Parker defense” and cite Judge Sheppard’s ruling that denying legitimate patients for medicinal cannabis is a violation of their constitutional rights.
A Solo Effort
Young and Harnett have divergent views, however, on the impact that Justice Sheppard’s ruling will have on drug law in Canada.
“The verdict only allows people with serious illnesses, if arrested and taken to court, to use [the Parker defense]and get discharged, their charges stayed or an acquittal,” says Young.
“Alan and I disagree on this issue,” Harnett states. “I believe his Honour was concerned that when a genuine medical marijuana user is arrested, the damage begins at their arrest? I believe the judge wanted to head off an arrest situation at the pass? I see the ruling as a way to prevent people from being arrested.”
Harnett would like to “meet with police so people can be identify medical users in advance so they won’t be arrested.”
However, Harnett agrees with Young’s assessment that, for the time being, Parker’s victory is pretty much a solo effort, and won’t provide immediate aid and comfort to other medical users. Harnett hopes that “other judges in Toronto will endorse Justice Sheppard’s position” and acquit medical marijuana users, until some sort of legal mechanism can be worked out to shield medicinal cannabis users from arrest.
The Right Decision , the Right Time
Parker’s victory comes at an extremely opportune time for marijuana law reform in Canada. This fall, BC Reform MP Jim Hart introduced medical marijuana legislation into the House of Commons.
In December, just after Parker’s trial concluded, Health Canada indicated they might allow some medical patients legal access to marijuana through a Special Health Access Program (also known as the Emergency Drug Release Program). This allows faster access to medicines for patients who can’t wait the roughly ten years it sometimes takes for the feds to approve new treatments before they can come onto the market.
With the continuing pressure of other medical marijuana challenges, such as Grant Kreiger, Lynn Harichy, Jean Pariseau and others, Terry Parker’s courtroom victory virtually assures that some form of medical marijuana will be legally available in Canada before the end of the year.
Terry Parker’s victory is an important lesson, not only for cannabis activists, but for all people, everywhere: that you can fight the odds and win, if you are persistent, dedicated, and working towards a goal which is as important to you as life and death.
Contact Terry Parker’s lawyer, Aaron Harnett:
75 Lowther Ave, Toronto, Ontario, M5R 1C9
tel (416) 960-3676; email: [email protected]