[Media Awareness Project]
Canada: Pot; A Case For Fair Play
Newshawk: firstname.lastname@example.org Source: Toronto Star Contact: email@example.com Pubdate: December 12, 1997
POT; A CASE FOR `FAIR PLAY'
THIS WEEK , Terry Parker won a major victory in his 20-year battle for the right to use marijuana as a medical treatment for his epilepsy. Judge Patrick Sheppard, of the Ontario Court, provincial division, stayed charges of cultivation and possession of the drug and ordered police to return three plants seized when they arrested Parker, 42.
Lawyers say Sheppard's ruling opens the door for people in other provinces to challenge the law. Here are excerpts from his decision:
``If liberty is the right a person has under the Charter, then a person must possess an autonomy to make decisions of personal importance. Good health is of personal importance. (It) is fundamental to life and the security of each person.
``Serious decisions regarding the management of illness and medical disability are, for most Canadians, made following consultation with a doctor. Canada has an elaborate and costly health-care system to ensure this opportunity is available to all Canadians. This has been the lengthy course followed by Parker. The negative side effects or ``harms'' in the use of any medication is a significant part of that medical decision-making process between a doctor and patient. Parker has made his decision in the management of his epilepsy. It has apparently met with some success. It has been known and supported by some of his doctors over the years.''
The huge majority of cases concerning marijuana concern ``occasional recreation use. The parallel with the recreational consumption of beverage alcohol is obvious. Courts have consistently rejected arguments that the personal possession of marijuana was of `fundamental personal importance.'
``This same reasoning cannot apply to the Parker facts. The control of his epileptic seizures is of critical personal importance to him and in the interest of the greater community of which he is a part, the same community who pay his health-care costs. I find he has established that this control is best achieved through a combination of prescribed medications and the smoking of marijuana. For (him) to be deprived of his smokable marijuana is to be deprived of something of fundamental personal importance.
``It is accepted that beverage alcohol and tobacco, although both potentially individually addictive and carrying with their use a huge taxpayers' cost, are tolerated in our society (although regulated) as part of the cultural tradition of the majority of our community. The same cannot be said of marijuana and therefore it is argued it ought to be prohibited. This argument is to ignore that for many prohibited drugs, use is permitted for a controlled therapeutic medical purpose - morphine and heroin being such examples . . .
``The (crown) argued that Mr. Parker's choice of an illegal form of therapy for the control of his epilepsy is an unnecessary choice. They allege Mr. Parker had:
a) failed to seek sufficient medical attention,
b) failed to request a prescription for Marinol (a synthetic substitute),
c) failed to have his blood levels of THC monitored by regular blood tests.
``The court on the evidence cannot accept any of these three alleged failures as having been supported in the evidence. . . .
``It is overbroad not to provide by legislation a procedural process for an individual in these circumstances to be exempt from prosecution when personal possession and cultivation is for legitimate medical use. It does not accord with fundamental justice to criminalize a person suffering a serious chronic medical disability for possessing a vitally helpful substance not legally available to him in Canada.
``It is accepted that in large measure both the Narcotics Control Act and Controlled Drugs and Substances Act are statutes designed to protect the health and well-being of Canadians. However, the effect as it relates to (Parker) is to do, if not the exact opposite, certainly significantly less by leaving him vulnerable to arrest and imprisonment, to the loss of the therapeutic assistance of marijuana, and to greater risk of physical injury in the community by more frequent seizures. Thus, a balance between the state's interest to protect the health of Canadians and the effect it has on this individual is not met. Therefore, the court concludes that deprivation to (Parker) arising from a blanket prohibition denying him possession of marijuana, in the circumstances of this case, does little or nothing to enhance the state's interest in better health for this individual member of the community.
``The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
``The (crown) conceded that finding (Canada's narcotics control laws) inconsistent with Section 7 of the Charter, would result in the court answering the question under Section 1 in the negative. The court accepts the logic of the submission and therefore answers the question imposed by the section in the negative.
``This Charter application must, for the above reasons, succeed. The violation of the fundamental principles of justice which underlies this community's sense of fair play and decency require this result.''
But ``this judgment ought not to be read as a decriminalization initiative by one court in the face of the legislative competence of the Parliament of Canada.''
``Without question, the provincial court in a criminal proceeding has the power to declare legislation invalid (``of no force or effect'') by reason of a Charter violation. Equally, the court, rather than a declaration of invalidity, can create an exception.
``It has not proved difficult on the facts of the case at bar for (Parker) to prove on a balance of probabilities the Section 7 Charter violation and his entitlement to an exemption. There is no direct evidence of how many individuals in Canada could be in a similar position. However, it is clear from the expert evidence accepted by the court that Parker is not alone in having his Section 7 rights violated in this manner.''
``The narcotics law ``does not include an exemption for a person who requires smokable marijuana for therapeutic medically sanctioned use. It does not provide the opportunity for lawful marijuana use in Canada. Reading in such an exemption is necessary to protect the Charter rights of Parker. To do so reduces the breadth of those sections of the statutes.
``This court concludes therefore, the appropriate remedy on this application is one of reading in an exemption . . .
``Parker will be granted immediate protection under the Charter of a stay of proceeding. All plant material (three plants) seized from him by the Metropolitan Toronto Police Services on Sept. 18, 1997, is to be returned to him forthwith . . .
``It is ordered that (sections of the narcotics laws outlawing cultivation and possession) be read down so as to exempt from its ambit persons possessing or cultivating cannabis (marijuana) for their personal medically approved use.''
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