Terry Parker Case -- Ontario Court Declares Medical Marijuana Prohibition Unconstitutional

Dec 10/97

Judge rules marijuana laws unconstitutional

TORONTO (CP) _ An Ontario judge ruled today that part of Canada's marijuana law is unconstitutional.

Judge Patrick Sheppard ruled that certain sections of the Controlled Drug and Substances Act are unconstitutional in cases where marijuana is used for medically-approved purposes.

Sheppard stayed charges of cultivation and possession of marijuana against 42.year-old Terry Parker, an epileptic who was charged in July 1996

But Sheppard convicted Parker of trafficking marijuana.

The judge ordered police to return 71 pot plants seized from Parker, who argued he needs marijuana to control epileptic seizures.

Sheppard said Parker's illness is best controlled with a combination of prescribed medication and smoking marijuana. Depriving Parker of marijuana is unconstitutional, he ruled.

Extensions should be made to the law for people who use marijuana for medically-approved purposes he said.

The Crown wants the ruling to apply to Parker alone.

Parker won a landmark ruling 10 years ago when he was acquitted of a possession charge. The acquittal was upheld by the Ontario Court of Appeal a year later.

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Canada: Pot; A Case For Fair Play

Source: Toronto Star Contact: lettertoed@thestar.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:

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``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.

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``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.''

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``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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Canada: Londoner Could Win Right To Use Pot

Source: London Free Press Contact: editor@lfpress.com Pubdate: December 12, 1997 Author: Trish Tervit -- Sun Media Newspapers With: files from Philip Lee-Shanok

LONDONER COULD WIN RIGHT TO USE POT

Terry Parker may soon have someone to toke with legally. Multiple sclerosis sufferer Lynn Harichy, 36, is headed to court in London in April to make the same case as Parker.

Her lawyer, Osgoode Hall law professor Alan Young, is optimistic they'll win the case, making Harichy the second person legally allowed to smoke marijuana for medicinal purposes in Canada.

"I'll go forward with the multiple sclerosis case," Young said, "and we'll probably win because of Terry's case" and the evidence of the helpful effects of marijuana on MS spasms and pain.

"This is the next serious claim being made." But before he wins, the lawyer will have to prove the debilitating and painful effects of Harichy's illness, that conventional treatments haven't helped and that pot is an effective remedy.

Harichy will be defending charges of possession at the three-day trial which begins April 27.

Crown attorneys have already tried to drop the charges, but Harichy says she won't let them.

"I want the laws changed and I'm not just going to walk away," said Harichy.

Meanwhile, Parker's lawyer Aaron Harnett said Crown attorneys are looking into tag-teaming their appeal with another case from August.

Hemp crusader Chris Clay, a former Londoner now in Vancouver, was found guilty of possessing and selling marijuana in August. His appeal and Parker's may go at the same time at the Ontario Court of Appeal, said Harnett.

"They sometimes hear appeals at the same time if they involve the same issues," Harnett added.

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Canada: Doctors Disagree On Drug's Effectiveness

Source: Toronto Star Contact: lettertoed@thestar.com Pubdate: December 12, 1997 Author: Donovan Vincent, Toronto Star Staff Reporter

DOCTORS DISAGREE ON DRUG'S EFFECTIVENESS

Few studies done due to `stigma of illegality'

When it comes to marijuana's medicinal benefits, there's no agreement among doctors.

Some are hopeful about how it seems to help cancer victims and HIV patients, while others say there are more effective prescription painkillers.

Toronto physician John Goodhew sees the merits of marijuana use for treating the side effects of illnesses like cancer, HIV and epilepsy.

``I'm not talking about waking up and rolling a joint. Small amounts, a half-hour before eating can increase one's appetite,'' Goodhew said, referring to the loss of appetite that accompanies some anti-HIV drugs.

Now that a judge has given a Toronto man the legal right to cultivate and possess marijuana for medical purposes, the ball is in Ottawa's court, Goodhew said. ``I'm hoping the federal health minister will take the initiative on this. We need a rational look at the issue. We don't need all the hysteria that says legalizing it will mean kids will be shooting heroin in the streets.''

Despite the landmark decision by Judge Patrick Sheppard of Ontario Court, provincial division, giving Terry Parker the right to grow marijuana for his epilepsy, the medical community is not singing from the same song sheet when it comes to its effectiveness as a medicinal agent.

``No one has seriously studied it because of the stigma around its illegality,'' said Dr. Malcolm Moore, oncologist at Princess Margaret Hospital in Toronto.

Moore said that years ago there were a number of young patients who used marijuana to combat nausea from chemotherapy. But this isn't as common now because there are highly effective anti-nauseants.

Still, he believes there are ``interesting compounds'' in marijuana that bear scientific scrutiny. ``There isn't a huge volume of data to make a conclusion either way (about how useful it is medicinally). But it's an interesting drug that should be studied under controlled research settings.''

Those in the pro and anti-marijuana camp cite different studies to back up their positions.

The Toronto-based Council on Drug Abuse points to a 1992 study out of Georgetown University School of Medicine, in which 170 cancer specialists were surveyed about the value of cannabis as a medical agent.

The study found cannabis ranked sixth in management of severe, post-chemotherapy nausea and vomiting.

But other high profile studies have pointed in the opposite direction.

Dr. John Paul Morgan, a professor of pharmacology at City University of New York Medical School, testified at Parker's trial that none of the drugs prescribed to epileptics is as safe or as effective as marijuana.

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Canada: Judgement Hailed As Major Step Forward

Source: Toronto Star Contact: lettertoed@thestar.com Pubdate: December 12, 1997 Author: Catherine Dunphy, Toronto Star Staff Reporter

JUDGEMENT HAILED AS `MAJOR STEP FORWARD'

But lawyer warns there's still no full immunity from prosecution

The president of an organization fighting to legalize marijuana is euphoric over a judge's decision giving a Toronto man the right to use the drug to treat his epilepsy.

``This is a major step forward,'' Umberto Iorfida, of the National Organization for the Reform of Marijuana Laws in Canada, said yesterday.

The landmark decision was handed down Wednesday by Judge Patrick Sheppard, who stayed charges of cultivation and possession laid by police in July of last year against Terry Parker

But the woman who is next in line to fight in court for the right to use marijuana as medical treatment says she is still discouraged.

``This victory is only for Terry Parker,'' said Lynn Harichy, a 36-year-old mother of four. Harichy, who has multiple sclerosis, is due to appear in a London, Ont., courtroom April 27 to face a charge of possession of a banned substance.

``There are still a lot of people out there suffering; marijuana should be available to anyone unless they are addicted.''

Harichy, a community college student on leave until her court case is heard, said she needs marijuana, along with her prescription medication to control both the pain and symptoms of multiple sclerosis.

She acknowledged her case has been boosted by Sheppard's ruling deeming parts of the Controlled Drug and Substance Act as unconstitutional and stating that Parker's rights were violated under the Canadian Charter of Rights and Freedom.

``Of course I'm going to win my case,'' Harichy said. ``But I never started this for it just to be about me.''

Her lawyer also sounded a note of caution yesterday.

``Anyone who reads that judgment and says this is absolute immunity (from prosecution) is in for a big surprise,'' said Osgoode law professor Alan Young.

But he said Sheppard's verdict was valuable because it was an ``icebreaker.''

``This decision will create a comfort zone for judges (to rule) without being branded as a maverick or a rebel, although legally the decision doesn't affect the law. Laws don't change until they reach the Ontario Court of Appeal or the Supreme Court of Canada,'' he said.

Sheppard is a provincial division judge.

Young said several critical cases similar to Parker's are scheduled to be heard in courtrooms across the country within the next two years.

One is being launched next month by AIDS activist Jim Wakeford who is filing a suit calling for a court declaration permitting people with AIDS to possess and consume marijuana, if recommended by a doctor.

He is also calling on the court to order the government of Canada to supply the marijuana which is currently grown on Ottawa's experimental farm.

Wakeford said he's used marijuana daily since 1995, when he experienced a sudden drop in weight and a reaction to the drug he was taken to combat his AIDS symptoms.

``It increases my appetite, combats nausea and some of the affects of all the chemicals I have to take now,'' he said. ``I consider it to be an essential part of my regime.''

He's launching his suit because ``I don't know how much time I have.

``I'm nervous and scared and I don't want to get busted.''

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DITORIAL

Marijuana ban should go to pot

Globe & Mail, December 12, 1997

Send a letter to the editor: letters@globeandmail.ca

On the balcony of Terry Parker, a 40-year-old resident of Toronto, a veritable forest of marijuana may now grow and thrive.

But if that same plant surfaced in the garden of his next-door neighbour, the police could swoop down, confiscate the demon weed, and lay criminal charges.

Mr. Parker suffers from severe epilepsy. His cultivation and use of marijuana was legally sanctioned this week when Judge Patrick Sheppard of the Ontario Court's Provincial Division ruled that Mr. Parker needed the substance to alleviate symptoms of his disease.

The onus is now on Parliament to resolve the absurd discrepancy between the rights of Mr. Parker and his next-door neighbour. A quarter of a century since the Le Dain royal commission recommended the decriminalization of marijuana in Canada, the Criminal Code remains obstinately in the throes of "Reefer Madness" -- insistent that possession and use of marijuana is a serious and dangerous problem for society.

Judge Sheppard said his ruling did not extend into that hazy world of recreational drug use, but revolved instead around Mr. Parker's rights to life, liberty and security of the person. He also said he was satisfied that marijuana is not addictive, does not lead to criminal behaviour and rarely leads to the use of harder drugs.

Although it's probably imprudent to let judges have the last word on the medical safety of certain drugs, it is high time -- pardon the pun -- for the country's lawmakers to explain why marijuana use remains such a strictly punishable offence. If the government cannot offer convincing medical evidence to buttress the criminalization of marijuana, then the question turns to what other reasons there may be to reasonably justify it. Legislators should be given one year to provide moral, medical or social reasons for a continued criminal fight against marijuana. It's not clear they will find enough ammunition for that battle.

Certainly there seems to be no great public outrage against marijuana use, especially when it comes to Mr. Parker's reasons for inhaling. Just last month, a full 83 per cent of Canadians surveyed said that marijuana should be legal when used for health purposes. That same week, TV's Murphy Brown lit up and inhaled in front of the prime-time viewing public -- for health reasons -- as part of this fall's continuing story line revolving around the fictional character's bout with breast cancer.

Nor does there seem to be any pressure from the legal community to keep the strict, criminal penalties on marijuana use. The Canadian Bar Association has been advocating the decriminalization of marijuana since 1976; the Canadian Police Association urged Parliament in 1993 to remove cannabis possession from the Criminal Code, lowering it to a mere ticketing offence, similar to a speeding violation.

And still, the Canadian Centre for Justice Statistics is reporting a steady increase in arrests for marijuana offences -- from 27,662 in 1994 to 29,562 in 1996.

Politicians have proven that they are willing to take up the cause over the years, yet little has been done. In 1996, senators such as Liberal Sharon Carstairs and Conservative Richard Doyle publicly supported decriminalization of marijuana. And back in 1980, a justice minister by the name of Jean Chr‚tien said his government intended to bring about changes to lessen the severity of penalties for marijuana possession. Seventeen years ago, Mr. Chr‚tien may well have been forced to explain why he would take such a step -- today, he should be asked why not.

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Canadian Press, Dec. 17, 1997

Crown appealing pot ruling By PAULA ARAB

TORONTO (CP) Smoking pot is illegal regardless of any medical benefits, the federal government says in an appeal of an Ontario case that legalized marijuana for a man with epilepsy.

A formal notice of appeal was served Wednesday to Terry Parker, a Toronto epileptic who won the right last week to smoke pot to control his seizures.

The Crown says Ontario Judge Patrick Sheppard was wrong Dec. 10 to stay charges against Parker of possession and cultivation of pot.

Sheppard's decision has broad implications for people suffering from illnesses such as AIDS and multiple sclerosis who say smoking mariujana helps ease the pain of their diseases and counter side-effects of strong medication.

In its appeal application, the Crown argued "the trial judge erred in law" in a number of areas, including his finding that sections of the federal marijuana law are unconstitutional and violate the Charter of Rights and Freedoms.

Aaron Harnett, Parker's lawyer, said a victory in the Ontario Appeal Court will give Sheppard's ruling more teeth.

"Essentially it gives us an opportunity to argue this at a higher level of court. And we're very confident the Court of Appeal is going to uphold this decision."

Crown lawyer Paul Evraire, who signed the notice of appeal, said the case may not be heard for another three to six months.

"It will be a fairly long and legal argument," said Evraire. "We think basically (Sheppard) went too far in this decision. It's not in accordance with the laws in Canada at this time."

His appeal comes as no surprise to Parker.

"I hope the judges will weigh the evidence seriously and recognize that marijuana has serious medical benefits," said Parker, who is still waiting for police to return his marijuana plants.

"In the meantime there have been a few people who have stopped me on the street to say: `Here Parker, congratulations.' I took a couple of puffs. I'm not trafficking to them, they're trafficking to me. So I keep my nose clean that way."

Police are still undecided about obeying Sheppard's order to return growing equipment and 71 pot plants to Parker, said Harnett. Parker's access to the drug was limited after police confiscated his plants for a second time in September.

"He was seizing a lot while awaiting his trial," said Harnett. It got so bad, he "had a seizure while crossing the street andwas struck by a speeding ambulance."

Parker, who suffered a broken pelvis and internal injuries, believes it has been legal for him to cultivate and smoke dope since Sheppard's ruling last Wednesday.

The Crown disagrees, saying the judge "exceeded his jurisdiction in purporting to order the return of the cannabis plants."

A three-judge panel is likely to hear the case by spring.

Another case being launched by marijuana advocate Chris Clay, of London, Ont., could be heard at the same time, said Harnett.

Clay lost a constitutional challenge earlier this year to remove the drug from the Criminal Code. He's appealing convictions of possession and trafficking.

"We're the only case dealing with the use of marijuana for medicine," said Harnett, "but the court generally likes to hear appeals dealing with the same piece of legislation at the same time so they don't come up with inconsistent decisions."