Federal Court strikes down regulation limiting growers of medical marijuana

January 10, 2008

, Canadian Press

TORONTO - Canadians who are prescribed marijuana to treat their illnesses will no longer be forced to rely on the federal government as a supplier following a Federal Court ruling that struck down a key restriction in Ottawa's controversial medical marijuana program.

The decision by Judge Barry Strayer, released late Thursday, essentially grants medical marijuana users more freedom in picking their own grower and allows growers to supply the drug to more than one patient.

It's also another blow to the federal government, whose attempts to tightly control access to medical marijuana have prompted numerous court challenges.

Currently, medical users can grow their own pot but growers can't supply the drug to more than one user at a time.

Lawyers for medical users argued that restriction effectively established Health Canada as the country's sole legal provider of medical marijuana.

They also said the restriction was unfair, and that it prevented seriously ill Canadians from obtaining the drug they needed to treat their debilitating illnesses.

In his decision, Strayer called the provision unconstitutional and arbitrary, as it "caused individuals a major difficulty with access..."

Ottawa must also reconsider requests made by a group of medical users who brought the matter to court to have a single outside supplier as their designated producer, Strayer said in his 23-page decision.

While the government has argued that medical users who can't grow their own marijuana can obtain it from its contract manufacturer, fewer than 20 per cent of patients actually use the government's supply, Strayer wrote.

"In my view it is not tenable for the government, consistently with the right established in other courts for qualified medical users to have reasonable access to marijuana, to force them either to buy from the government contractor, grow their own or be limited to the unnecessarily restrictive system of designated producers," he wrote.

Ron Marzel, a Toronto lawyer representing the group of medical users who brought the matter before the Federal Court, called the decision a "great remedy" for his clients.

"All this means is that the limit - the one-to-one ratio - it's the last nail in the coffin for that ratio," he said in an interview.

"The court has said, 'Look, unequivocally, this is unconstitutional, it's arbitrary. All the reasons you've provided us with so far for this one-to-one ratio, they don't pass muster. We don't buy it, we don't accept it."'

The provision had been struck down by the courts before, but was reinstated by the government who contracted Prairie Plant Systems Inc. in Flin Flon, Man., to provide the drug to patients.

"(It was) constitutionally suspect from the beginning," said lawyer Alan Young, who argued in court on behalf of the sick.

"My position always was that if you're going to do something like that, you'd better have an adequate alternative."

Ottawa could either rewrite the regulations, come up with a new ratio, "or they can simply leave it as an open market so that people who are experienced and have the right secure facility will be able to apply to grow for 10 patients, 20 patients," Young said.

The government may also draft quality-control regulations for outside suppliers to ensure patients get the best product possible, said Marzel.

But he believes the Crown will appeal the decision.

Four of the original applicants died before the case, which began in 2004, was heard in December, Marzel said.

Previous governments have been uncomfortable with their role as cannabis supplier.

Former Liberal health minister Anne McLellan, an unabashed opponent of the government's medical marijuana program, was reluctant to provide the drug to patients.

Young believes Ottawa is just biding its time until pharmaceutical companies come up with marijuana products and it can "wash its hands" of it.

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