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Court rules in favour of medical marijuana users

Government joints not doing the job for patients

A federal court has decided that multiple patients can legally obtain medical marijuana from a grower other than the government.

The ruling, issued Thu, Jan 10, strikes down the law that states a private medical marijuana grower can only grow pot for one patient at a time. It will make it easier for patients not to use government marijuana, which many have argued is ineffective in treating their symptoms and too expensive.

“I’m obviously pleased that someone in authority agrees that something needs to be done to assist sick people who can’t access medicine,” says Alan Young, the lawyer representing the plaintiffs in the case, 30 patients who wanted to buy pot from a husband-and-wife growing operation.

The court did, however, decline to supervise the government’s implementation of the ruling. Young says he’s concerned the government will simply change the law to say a grower can only supply two or three patients. He says the government can also appeal the ruling to the Federal Court of Appeal.

“We may have to whack them again in court,” says Young. “But I’m hoping they’ll create a ratio of grower to patients that makes sense.”

In the hearing, which concluded at the end of November, Young argued that government marijuana was not addressing the needs of patients.

“Our case is based on the fact that the government supply does not meet the medical needs of patients,” says Young.

Young says the roots of the case stretch back to 2000 when a court first ruled that patients had the right to access marijuana for medical use. The government responded by issuing the Medical Marijuana Access Regulations which stated patients could either grow their own or register someone else to grow the plants solely for them and for no money.

A 2003 Ontario Court of Appeal ruling stated that registered growers should be able to grow for a number of patients and should be able to make money at it. But the court refused to order the government to enact such legislation and said the government could choose to supply marijuana itself.

Health Canada then decided to convert its own marijuana grower from growing pot for medical research use to growing pot for distribution. Patients were still allowed to grow their own and a supplier growing plants for one patient only was now allowed to sell it.

Young says the initial government pot was terrible, although he admits it has improved considerably since. But he says Health Canada will only grow one strain of pot, reducing the range of diseases that can be treated.

“Different strains have different therapeutic effects,” says Young. “This is pretty much accepted in medical circles. But the government’s position is that different strains are like different brands of rum.”

Young says the government strain is good for fighting nausea and inducing appetite — effective for cancer and AIDS patients — but much less effective at fighting pain or seizures, as in epilepsy or multiple sclerosis.

Young says the government has cut out medical testing completely since the Harper government took over.

“I’d like to know more but they only distribute one strain and they don’t check with patients,” he says.

The government’s stubborness, Young says, is based on a continued commitment to a war on drugs.

“They want to see it underground,” he says. “It’s all about optics. If they open up too much it suggests marijuana isn’t as dangerous as all the furor over grow-ops would suggest.”

Young also says the government should be distributing its pot for free instead of charging $150 an ounce.

“When they were forced to distribute it they went after cost recovery,” he says. “It may be an improvement on the black market price, but my clients could have sold it for $120 an ounce. And if a grower is allowed to grow for 30 or 40 patients in a secure warehouse they could sell it for as little as $20 an ounce.”

Young says that many patients are unable to obtain access to the government program because doctors are warned off by Health Canada or by insurance companies.

“Doctors do not want to participate,” he says. “A lot of people can’t get into the program. A lot of doctors won’t sign the papers.”

Many of those with the proper papers prefer to use other sources.

“Eighty percent of patients don’t use government marijuana,” says Young. “Probably the majority are buying from compassion clubs.”

Young says he represents two clubs — which sell pot to medically recognized patients — in Toronto with about 2,000 members each. He says the clubs are technically illegal although the police have not raided them since 2000 and, in that case, the prosecution was dropped.

“They have not successfully prosecuted a legitimate compassion club,” he says.

Such clubs will now be be able to sell to patients but only if they actually grow the pot themselves.