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Medicinal marijuana user Julian Roy, who suffers from chronic arthritis, smokes marijuana from a pipe at a protest at Old City Hall in Toronto on September 30, 2002.

KEVIN FRAYER/THE CANADIAN PRESS

An Ontario court has struck down Canada's laws against possessing and growing cannabis as part of a ruling that found the country's medicinal marijuana program is failing to provide access to the drug for those who need it.

Smoking up, however, is not legal just yet: the federal government has three months to launch an appeal or change its regulations to fix the problems identified by the court.

Mr. Justice Donald Taliano of the Ontario Superior Court struck down the Marihuana Medical Access Regulations, arguing they aren't doing enough to ensure patients can obtain the necessary approvals to use the drug. Simultaneously, he ruled two sections of the Controlled Drugs and Substances Act - those that prohibit simple possession and cultivating marijuana - are unconstitutional, since they can be used to criminally charge medicinal users who haven't been able to obtain such approval.

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The ruling means the government must either improve its system for licensing medicinal marijuana patients within 90 days, or it will become legal to use or grow the drug for any purpose. The government can, however, buy itself more time by appealing the ruling.

The government office handling the case could not be immediately reached for comment on what it planned to do.

The ruling is not the first time the courts have come to the assistance of those who use cannabis to alleviate their illnesses. A 2000 Ontario Court of Appeal ruling compelled the government to create the medicinal marijuana program or have its prohibitions against cannabis thrown out altogether. Other court rulings have pointed to specific problems with the medicinal marijuana rules.

This, however, is the first time a court has thrown the whole thing out, said Jacob Hunter, policy director with the Vancouver-based Beyond Prohibition Foundation. Even though the current ruling applies only to Ontario, he said it would have ramifications across the country.

"We know historically that decisions in Ontario have had an effect nationally, especially on this issue," said Mr. Hunter, who is also a licensed medicinal marijuana user.

The court decision hinged on the difficulty medicinal users have in finding a doctor willing to sign the necessary paperwork. The problem, Judge Taliano ruled, is that the government requires patients to obtain the approval of a doctor to take marijuana legally but does not give physicians adequate training or fund sufficient clinical trials of the drug. As a result, much of the medical community refuses to approve its use.

"Rather than promote health - the regulations have the opposite effect. Rather than promote effective drug control - the regulations drive the critically ill to the black market," he wrote. "Surely, the right to choose belongs to the patient, not to government that has failed to create the environment for better research into the drug's effectiveness and harmful qualities."

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The case was brought forward by Matthew Mernagh, a 37-year-old man from St. Catharines, Ont., who couldn't find a doctor to approve his use of marijuana to relieve the symptoms of several illnesses, including fibromyalgia and scoliosis. He was charged with cultivating his own cannabis, charges that were also stayed by Judge Taliano.

Several other medicinal users of the drug testified they faced similar problems, and that Health Canada would take months to process their applications.

Judge Taliano agreed with Mr. Mernagh's argument that criminally charging patients who had to resort to illegally buying cannabis amounted to a violation of their Charter right to liberty.

Proponents of medicinal marijuana have long argued that Health Canada's system is flawed and that the roughly 10,000 people approved to use the drug represent only a tiny fraction of those who should qualify for the program.

"For the last nine years, patients have been complaining about the ineffectiveness of the medicinal marijuana program," said Ron Marzel, a Toronto lawyer who has represented medicinal marijuana clients. "This judge finally accepted those concerns."

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