Ontario's highest court has declared the law prohibiting the possession of marijuana unconstitutional, and has given Ottawa a year to amend it or lose it.
The Ontario Court of Appeal said the year is to give Parliament a chance to fill the void. Meanwhile, marijuana possession is still illegal.
The court ruled yesterday that the law fails to recognize that marijuana can be used for medicinal purposes by the chronically ill.
Upholding a lower-court decision in the case of Terrance Parker, a 44-year-old epileptic who won a 23-year court battle for the right to smoke the drug to control his seizures, the appeal court declared the marijuana possession section of Canada's Controlled Drugs and Substances Act invalid. Advocates for decriminalization of marijuana hailed the decision as a "huge" victory, not just for people whose doctors back their claims to need the drug to treat illnesses, but for recreational smokers, too.
"If [Parliament doesn't]amend the law and rectify the problem with [medical]exemptions, then everyone will be entitled to smoke marijuana legally in 12 months," lawyer Alan Young told reporters.
Ottawa avoided grappling with the thorny issue of abortion in just this way, Mr. Young pointed out.
When the Supreme Court of Canada ruled in Regina vs. Morgentaler that prohibiting a woman from terminating a pregnancy violated her fundamental right to security of the person, the government did not rewrite its legislation.
"They didn't return to it and therefore we don't have a criminal law relating to abortion," Mr. Young said.
There are now three options presenting themselves to the federal government: appealing the decision, accepting it and rewriting the law within the one-year period to provide for medicinal uses, or allowing the law to be struck down, effectively legalizing marijuana. The third route is considered highly unlikely.
Health Canada spokeswoman Roslyn Tremblay said the government's lawyers would study the decision before advising on a course.
"It would be speculating to say what they'll do. Fortunately, they've got a year to look at it," she said. "They'll take time to review the judgment very carefully and look at what action will be taken."
In 1997, Mr. Parker became the first Canadian allowed to smoke and cultivate marijuana with impunity when the Ontario Superior Court ruled that he needed it to control his illness and that the prohibition infringed his rights under Section 7 of the Charter of Rights and Freedoms. The court stayed charges laid against him when police raided his 73-plant hydroponic garden.
However, the Crown appealed on several grounds: that he had not proven marijuana was the only treatment that could help him; that he could have used a legal, synthetic version of the plant's active ingredient; and that he could have applied for an exemption from the Controlled Drugs Act through the federal Minister of Health.
Yesterday, a three-judge panel of the appellate court rejected all three arguments.
Justices Marc Rosenberg, Marvin Catzman and Louise Charron said they were satisfied with the factual evidence that Mr. Parker needs to smoke marijuana for his health, and that the drug causes relatively little harm.
They also found that the federal Health Minister's exemption program fails to provide a safe, legal supply of the drug for people who need it for medical reasons.
"The possibility of an exemption . . . that is dependent upon the unfettered and unstructured discretion of the Minister of Health is not consistent with the principles of fundamental justice," they said.
An estimated 150,000 people in Ontario need medicinal marijuana to ease the symptoms of AIDS, cancer treatment, glaucoma and epilepsy, but the Health Minister has granted only about 50 exemptions to date.
Lawyers for medicinal marijuana users say applications for exemptions go into a "black hole" at Health Canada.
"Hundreds of people get no response from the government to their applications," said Aaron Harnett, who represented Mr. Parker at the appellate court. "They're sitting there, sick and waiting, and the court has said the government must stop their punishment, their imprisonment."
Mr. Young added that the government must provide a supply of legal marijuana to patients if its exemption policy is to have any meaning.
Exemption from prosecution is useless if you cannot obtain a supply of the drug, he said.
As a result of the ruling, Mr. Parker can continue to grow and use marijuana without fear of being raided and prosecuted for one year.
Other medicinal users charged during that time will not be prosecuted until Ottawa either amends the law or mounts an appeal to the Supreme Court of Canada.
A wan-looking Mr. Parker told reporters yesterday that he is thankful for the Ontario court's decision in his case, but won't be content until all Canadians have the right to use marijuana without prosecution.