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Ontario Judge Rules in Favor of Medical Marijuana; Health Canada Says It Will Approve Marijuana Prescriptions


January 1998

Ontario Judge Patrick Sheppard ruled on December 10 that certain sections of Canada's Controlled Drug and Substances Act are unconstitutional in cases where marijuana is used for medically-approved purposes ((1997) O.J. No. 4923 (QuickLaw)) (Pearce Bannon, "Medical Use of Pot is Legal: Court Upholds Patient's Challenge of Drug Laws," Ottawa Citizen, December 11, 1997, p. A1; Rick Mofina and Steve Chase, "Judge Butts Out Pot Law," Calgary Herald, December 11, 1997, p. A1; "Pot: A Case For `Fair Play,'" Toronto Star, December 12, 1997; "Canadian Judge Allows Marijuana as Therapy," The Lancet, December 20, 1997, vol. 350, no. 9094).

Judge Sheppard stayed marijuana cultivation and possession charges against Terry Parker, 42, but convicted Parker of marijuana trafficking. Parker, who argued he needs marijuana to control epileptic seizures, admitted giving some of his marijuana to friends suffering from seizures. The judge ordered police to return three plants seized from Parker in a September 1997 raid. Police will keep 71 plants seized from Parker during a July 1996 raid. Parker was sentenced to one year's probation.

Exceptions should be made to the law for people who use marijuana for medically-approved purposes, the judge said. "Mr. Parker stands a daily risk of being deprived of his right to life, liberty and security," he said in his 26-page ruling. "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." Sheppard wrote, "Health is fundamental to the life and security of each person. ... 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."

Terry Parker escaped punishment in a landmark ruling 10 years ago when he pleaded medical necessity and was acquitted of a marijuana possession charge. The acquittal was upheld by the Ontario Court of Appeal a year later.

Aaron Harnett, Parker's lawyer, said he was notified by the Crown on December 16 that it had appealed Sheppard's ruling which will be reviewed by a three-judge panel of the Ontario Court of Appeal during 1998 (Philip Lee-Shanok, "Crown to Appeal Pro-Pot Decision," Toronto Sun, December 17, 1997).

"What I would really hope is that this articulate and careful judgement of His Honour will be read by members of Parliament, the minister of health, [and] the minister of justice, because ultimately it's going to be in their court," said Harnett.

Osgoode Hall law professor Alan Young, who recently defended Chris Clay in his constitutional challenge to Canada's marijuana law, said he would cite Sheppard's decision when he defends Lynn Harichy (See "Challenger of Canadian Marijuana Law Sentenced to Three Years Probation, Fined $750," NewsBriefs, September-October 1997). Harichy, who uses marijuana to control the pain and symptoms of multiple sclerosis, intentionally broke the law to mount a constitutional challenge (See "Canadian Woman to Mount Medical Marijuana Court Challenge," NewsBriefs, November-December 1997). This judgement isn't a resolution of the issue, but it's clearly a first step. It provides legitimacy to the claim of the medical necessity of marijuana consumption," Young said.

The case is being viewed as a "constitutional exception" for Parker alone. "Anyone who reads that judgement and says this is absolute immunity [from prosection] is in for a big surprise," said Young. He added, "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." Young said other medical marijuana cases are scheduled to be heard in courtrooms across Canada within the next two years (Catherine Dunphy, "Judgement Hailed As `Major Step Forward,'" Toronto Star, December 12, 1997).

One case being heard in January 1998 is that of Jim Wakeford, who says he uses marijuana to combat AIDS symptoms. Wakeford is calling on the court to order the Canadian government to supply marijuana to him. Marijuana is currently grown on Ottawa's experimental farm (Luiza Chwialkowska, "Patient Sues For Access to Marijuana," Ottawa Citizen, December 13, 1997).

The Parker ruling comes only weeks after Canada's federal Justice Minister Anne McLellan said the medical marijuana issue needs to be studied. "It's probably health-care professionals, patients and others in that area who are best placed to help others understand the dimensions of the debate," said McLellan. An Angus Reid poll of 1,515 Canadians found 83% responded in support of the legalization of marijuana for medical purposes (Stephen Bindman and Jim Bronskill, "Justice minister calls for national debate on medical marijuana," Ottawa Citizen, November 21, 1997).


On December 18, Health Canada said it is prepared to approve the medical use of marijuana for emergency situations (Jeremy Mercer, "`We'll Approve Marijuana Prescriptions,'" Ottawa Citizen, December 19, 1997; Jeremy Mercer, "Health Canada to Rule on Marijuana," Ottawa Citizen, December 19, 1997, p. A1).

Dann Michols, who is in charge of regulating all drugs and medical devices in Canada, says Health Canada will approve medical marijuana on a case-by-case basis. "Marijuana as a medicine is not an outlandish proposition. Marijuana is no different than morphine, no different than codeine, no different than Aspirin. There just has to be a process where we are able to say they have undertaken the right experiments and produced a result that shows the benefit is greater than the risk for the individual patients," said Michols.

Health Canada's Emergency Drug Release Program rejected such a request on December 18 by Jean Charles Pariseau, who suffers from AIDS, citing two technical flaws in his application. Pariseau's application is expected to be approved after changes are made. The Emergency Drug Release Program allows unauthorized medicines to be approved on an individual basis, usually within three days, if the patient's physician demonstrates that the unapproved drug helps the patient.

The two problems with Pariseau's application concern a research license. The program requires that the physician applying have a research license under Canada's Controlled Drug and Substance Act. Dr. Don Kilby, a physician at the University of Ottawa who applied to the emergency program on behalf of Pariseau, expects to receive a license soon. Application to the program requires the doctor to list the "manufacturer" of the medicine. The "manufacturer" must also have a research license. Most research institutes, universities and pharmaceutical companies have this research license. Kilby plans to find one organization willing to research marijuana and then promise to become a supplier.

Health Canada Emergency Drug Release Program - Holland Cross Bldg., Tower B, 1600 Scott St., 3rd Floor, Ottawa, Ontario, CANADA K1A 1B6 (Postal Locator 3103B), Tel: (613) 941-2108, Web:

Attorney Alan Young - Osgoode Hall Law School, 4700 Keele Street, North York, Ontario, Canada M3J 1P3, Tel: (416) 736-5595.

For a copy of Judge Sheppard's ruling in the Terry Parker case, contact Aaron Harnett - (416) 960-3676.