April 14, 2011 – It is hard to understand why Canada criminalizes marijuana. Make it illegal, sure – subject to a fine, as is wearing a face veil in France – but where is the high degree of harm, to others or self, that requires criminal sanction, including jail?

The criminal law is not meant to be used where a finger wag might do.

On one level, an Ontario court ruling this week striking down Canada’s marijuana laws was about medicinal users. The law was deemed unconstitutional because it obliges sick people to obtain a doctor’s approval for use, a procedure that doctors have largely boycotted, on the advice of their provincial associations and their insurer. Rather than work with physicians to meet their concerns, Health Canada had absolved itself of responsibility.

But the question that is impossible to avoid in the thorough, well-reasoned ruling by Mr. Justice D.J. Taliano, of the Superior Court, is: Why criminalize?

The Ontario Court of Appeal has previously accepted that marijuana consumption is “relatively harmless,” compared with hard drugs, tobacco or alcohol; that there is no hard evidence of irreversible organic or mental damage; that no evidence shows cannabis induces psychoses; that cannabis is not addictive; that marijuana use doesn’t cause criminality, doesn’t make people more aggressive or violent, and probably doesn’t lead to hard drug use; that there have been no recorded deaths from marijuana consumption; that it does not cause a “motivational syndrome”; and that, where the drug is decriminalized, consumption doesn’t increase wildly.

The constitutional issue is easy to understand. The state’s marijuana ban aims to protect people from harm, yet the ban imposes harm on sick people. Judge Taliano heard from would-be medical users from across Canada that it was nearly impossible to find a doctor who would sign off on marijuana use. These would-be users included people with multiple sclerosis and HIV-AIDS. It is not as if the alternative, prescription opioids, is perfectly wonderful. Those drugs are involved in more overdose deaths in North America than cocaine or heroine.

The federal government has been given three months to fix the marijuana law for medicinal users or that law will fall by the wayside. Separately, the Conservatives want a mandatory minimum of six months in jail for people who grow six marijuana plants. How about a debate on the decriminalization of marijuana? Source.

April 13, 2010 – An Ontario Superior Court judge has ruled that the federal medical marijuana program is unconstitutional, giving the government three months to fix the problem before pot is effectively legalized.

In an April 11 ruling, Justice Donald Taliano found that doctors across the country have “massively boycotted” the medical marijuana program and largely refuse to sign off on forms giving sick people access to necessary medication.

As a result, legitimately sick people cannot access medical marijuana through appropriate means and must resort to illegal actions.

Doctors’ “overwhelming refusal to participate in the medicinal marijuana program completely undermines the effectiveness of the program,” the judge wrote in his ruling.

“The effect of this blind delegation is that seriously ill people who need marijuana to treat their symptoms are branded criminals simply because they are unable to overcome the barriers to legal access put in place by the legislative scheme.”

Taliano declared the program to be invalid, as well as the criminal laws prohibiting possession and production of cannabis. He suspended his ruling for three months, giving Ottawa until mid-July to fix the program or face the prospect of effectively legalizing possession and production of cannabis.

The judge’s decision comes in a criminal case involving Matthew Mernagh, 37, of St. Catharines who suffers from fibromyalgia, scoliosis, seizures and depression.

Marijuana is the most effective treatment of Mernagh’s pain. But despite years of effort, he has been unable to find a doctor to support his application for a medical marijuana licence.

Mernagh resorted to growing his own cannabis and was charged with producing the drug.

Taliano found doctors essentially act as gatekeepers to the medical marijuana program but lack the necessary knowledge to adequately give advice or recommend the drug. He also found that Health Canada has made “no real attempt to deal with this lack of knowledge.”

Taliano said the issue is Canada-wide.

Twenty-one patients from across the country testified in the case, saying they were rejected by doctors a total of 113 times.

One Alberta patient was refused by 26 doctors; another in Vancouver approached 37 physicians without finding a single one to sign off on the form.

Patients also face lengthy delays — as long as nine months — in having their medical marijuana applications processed by Health Canada.

“The body of evidence from Mr. Mernagh and the other patient witnesses is troubling,” Taliano wrote. “The evidence of the patient witnesses, which I accept, showed that patients have to go to extraordinary lengths to acquire the marijuana they need.”

Lawyer Alan Young, a longtime advocate of marijuana legalization, said the ruling is a step in the right direction.

“It’s significant because it’s a Superior Court ruling which has binding effect across the province,” Young said.

“By enacting a dysfunctional medical program the government now has to pay the high cost of losing the constitutional authority to criminalize marijuana.”

He said the real test, however, will be whether the judgment stands up in the Ontario Court of Appeal.

“If the government is not successful on appeal, they are going to be caught between a rock and a hard place because they don’t have an alternative program in mind,” he said. “They don’t have a plan B. They’re in trouble.”

The medical profession has been wary of the medical marijuana program since it came into effect in August 2001.

On May 7, 2001, the Canadian Medical Association wrote a letter to the federal health minister expressing concerns with recommending a drug that has had little scientific evidence to support its medicinal benefits.

“Physicians must not be expected to act as gatekeepers to this therapy, yet this is precisely the role Health Canada had thrust upon them,” the letter stated. Source.