Eight Years of Reefer Madness: Canada’s Cannabis Legality Limbo

Jim Kerr was making lunch one Friday afternoon last month when seven police officers burst in, put him up against the wall and handcuffed him. “I have multiple sclerosis and grow marijuana for it,” he told them. “Shut up,” said an officer. “You’re not under arrest yet.” “The marijuana is upstairs in a room I keep locked when the kids are home,” he said. “Shut up,” he was told again. From upstairs came the gleeful howls of policemen: “We got it! Bust him!” On a cold day, they refused to let him put on a jacket, took him away in handcuffs, called Children’s Aid to take away his daughters, held him for four hours at the station, then told him to walk home.
Welcome to Canada, where for the past eight years courts have been calling upon Parliament to enact a law protecting the right of the sick to use cannabis as medicine — and where successive governments have refused to allow Parliament to do so. Instead, Ottawa has created a series of arbitrary regulations that make marijuana more difficult to obtain than opium. Jim Kerr thought he had done everything right. He had applied to Health Canada’s Medical Marijuana Access Division, filled in his portion of their 33-page application and left the document with his doctor to fill in the rest. The overworked GP left the paperwork untouched for a year, and that turned Jim Kerr into a criminal.

When Kerr got home from the police station, he got on his computer to look for help. Some time earlier, he had bookmarked a website, www.thepotlawhasfallen.ca, the work of a philosophy professor named Doug Hutchinson. Hutchinson is a former Rhodes Scholar whose Oxford thesis was on the subject of constitutional law, and also a person legally entitled to use cannabis for medical reasons. His own exhausting fight to assert his rights at the University of Toronto has forced him “down out of the Ivory Tower” and into medical marijuana activism. “The government is not being controlled properly by its own constitution,” Hutchinson says. “I experienced the hideousness of it personally, and if I walk away, then I consent to it happening to others.”

Hutchinson argues that no proper legal arrangement exists to protect Canadians who use cannabis medically, and therefore the entire prohibition against cannabis is invalid. A similar argument persuaded a Toronto judge to acquit a man of marijuana possession last July, and an Oshawa judge to acquit three men in November. This year, judges in London, Ont., and Kitchener, Ont., have thrown out simple possession charges in cases where the accused used Hutchinson’s defence strategy.

Here is the basis of Hutchinson’s argument: In May, 2000, Terry Parker, an epileptic, won the right to use cannabis to prevent seizures. The Ontario Court of Appeal ruled “this is a matter for Parliament,” and ordered a new law protecting his right be crafted by July, 2001. The day before that deadline, the government instead decreed the Medical Marijuana Access Regulations (MMAR). These regulations were found to be so obstructionist that in 2003 two Ontario Superior Court justices ruled all marijuana possession laws illegitimate. Police in Ontario made no possession arrests for months. The Ontario Court of Appeal dealt with the issue in October of that year, bundling these cases together: upholding the acquittal of a teen on possession charges because the law was invalid at the time of arrest, and agreeing in another case that the MMAR were defective. (This means that if you were convicted of marijuana possession between 2001 and 2003, you should join a class action lawsuit now underway.)

Government lawyers begged the court to tell them what was needed to make the regulations constitutional, and the court obliged, declaring cannabis prohibition back in force in October, 2003. One change the court demanded would have allowed for lawfully sanctioned “compassion clubs” to grow varieties of plant strains for registered patients. The government refused to implement this requirement, reinstating sections of the MMAR the court had found unconstitutional. At the root of this ongoing legal mess lies a simple truth: For the past eight years, our government has been unwilling to pass an Act of Parliament that would recognize the right of the sick to use cannabis without being treated like criminals. It’s popular in some quarters to blame “activist judges” for making law in this country, but on the marijuana file we repeatedly see government lawyers pleading with judges to keep making the law for them.

The intransigence of the current Conservative government is largely ideological: They believe all drugs are bad. Meanwhile, Liberals of the Chretien and Martin eras admit to having been driven by fear of offending our drug-warrior neighbours to the south. This is ironic: Health Canada currently permits fewer than 2,400 ill Canadians access to cannabis, while Oregon, a state with one-tenth our population, has 15,000 registered users. Then there’s California, where over 400 dispensaries supply a quarter-million users with a wide variety of strains for different symptoms. (Health Canada grows a single strain of cannabis in an isolated mine shaft.)

Compassion clubs similar to those California dispensaries do operate in Canada. Philippe Lucas is head of the 700-plus-member Vancouver Island Compassion Society in Victoria, B.C. Lucas, who has hepatitis C from tainted blood, has doggedly used Access to Information requests to track Health Canada’s marijuana bureaucracy. From a series of heavily blacked-out emails Lucas showed me, one can trace the almost laughable give and take as a bunch of non-scientists set themselves to write a marijuana “Fact Sheet” for physicians, pulling from a hat a recommended daily dose of one to four grams. It would be funny except that Lucas and his compassion society have felt compelled to mount their own constitutional challenge, after police seized and destroyed their organic grow operation and charged two employees with trafficking. The case continues in April in B.C.’s Supreme Court.

“Under the current system, the only way we see improvements to the medical marijuana program is through the courts,” he says, “and that means people with hepatitis C or AIDS or cancer have been arrested, and found themselves in a desperate and untenable situation. We can’t keep forcing change on the back of chronically ill Canadians.”

– Article from the National Post, Wednesday February 27th

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– Brian Preston is also the author of the martial arts memoir Me Chi and Bruce Lee. E-mail him at [email protected]