Thursday, 11 December 1997.
Source: Ottawa Citizen
Section: Front Page
Author: Pearce Bannon


TORONTO -- In a landmark legal decision, a judge ruled yesterday that it is legal to grow and smoke marijuana for medicinal use.

Ontario Justice Patrick Sheppard ruled in favour of Toronto resident Terry Parker's constitutional challenge to Canada's marijuana laws, saying the prohibition denies Mr. Parker his right to an effective medicine.

``Mr. Parker stands a daily risk of being deprived of his right to life, liberty and security,'' said Judge Sheppard in his 26-page ruling.

Judge Sheppard said that although Canada's drug laws were written to protect the health and well-being of Canadians, they hurt people such as Mr. Parker who benefit medically from smoking marijuana.

``Deprivation to (Mr. 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.''

Judge Sheppard stressed several times in his address to the court that any person granted ``medically approved use'' of marijuana by a doctor would be exempt from laws that prohibit the possession or growing of marijuana.

For Mr. Parker, who has smoked marijuana daily for the past 20 years to lessen the severity of his epileptic seizures, Judge Sheppard's ruling was both a major boost and a lifesaver.

``I believe this is a victory for everybody in Canada, medical users especially,'' Mr. Parker said outside the courthouse.

The 42-year-old Mr. Parker thanked Judge Sheppard for his ``courage'' in making his ruling and urged judges across Canada to follow Judge Sheppard's lead.

Aaron Harnett, Mr. Parker's lawyer, said Judge Sheppard's ruling will send a signal to other judges, the health and justice ministers and Parliament.

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

``Changes should be made by Parliament to ensure this is a nationwide change to the law,'' he added. ``The road map is in the decision that he made today. The facts are there, the law is there and now I hope Parliament takes up the challenge.''

In Washington, Justice Minister Anne McLellan said she would review the decision when she returns to Ottawa today, but said the ruling would be part of the governmental assessment currently under way on the issue.

``It's also hypothetical to comment on any possible change to the existing law; we're not anywhere close to that,'' she told reporters.

``We're going to review the situation. We're obviously going to take into account various things that have happened in various provinces and (yesterday's decision) is just one more of those events.''

Pro-medical marijuana advocates in Ottawa applauded Judge Sheppard's ruling, but cautioned against excessive enthusiasm.

``I'm extremely pleased with the judgment. The court has shown compassion where the government has been entirely unwilling to,'' said Eugene Oscapella.

``But it's still a lower court ruling and it doesn't hold weight outside Ontario. There's still a lot of work to be done, but in the meantime, it's probably giving a few people a happier Christmas.''

Mr. Oscapella is a founding member of the Canadian Foundation for Drug Policy, which supports the decriminalization of many drugs. He is also part of a group of local doctors and lawyers who are working to develop a legal protocol for providing marijuana to the seriously ill.

That group includes Dr. Don Kilby, who advises one of his patients with AIDS to use marijuana, and Aubert Martin, a marijuana grower who provides free or discount marijuana to a small circle of AIDS and cancer sufferers.

``I'm very happy, but people can still get charged, so we still have to work,'' said Mr. Martin after hearing of the decision.

``I still have to do what I do.''

Judge Sheppard's decision has already made legal waves.

Alan Young, the Osgoode Hall law professor who recently lost a high-profile constitutional challenge to the marijuana law, said he would cite the Sheppard decision when he defends Lynn Harichy.

Ms. Harichy, who has multiple sclerosis, challenged the marijuana law by trying to smoke a joint on the steps of the London police station in October. She was arrested and charged with possession of a narcotic.

``This judgment 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,'' said Mr. Young.

``It does not set a precedent but it does have great persuasive value. When I walk into court with Lynn Harichy, one of the first things I'm going to say is `What I'm going to present to you has been presented to another court.' There's no question the door has been opened.''

Mr. Oscapella says the Sheppard decision might have global ramifications.

``This will be significant in other countries. There are drug policy reformers around the world who are going to watch this,'' Mr. Oscapella said.

``You know, here's Canada, a democratic, supposedly humane, compassionate country that respects other people's rights and a judge in this country has said the (drug) law is unconstitutional because it offends the right to life, liberty and security of the person. That's going to have some effect.''

Judge Sheppard's ruling throws out charges of possession of a narcotic and cultivating a narcotic stemming from two separate raids on Mr. Parker's apartment in July 1996 and September 1997.

Noting the $5,000 Mr. Parker spends annually to buy marijuana from street dealers, Judge Sheppard ordered police to return the three marijuana plants seized from Mr. Parker's apartment during the 1997 raid.

Crown attorney Kevin Wilson said his office will consider appealing Judge Sheppard's ruling.

Mr. Parker was found guilty on a third charge of possession of marijuana for the purpose of trafficking stemming from the 1996 raid.

Judge Sheppard ruled Mr. Parker admitted his guilt when he told an arresting officer that he gave some of the marijuana he grew to people also suffering seizures.

Because Mr. Parker was found guilty, police will keep the 71 plants seized from the 1996 raid.

Judge Sheppard sentenced Mr. Parker to one year's probation. He also warned Mr. Parker that he can't give away marijuana ``willy nilly'' to anyone who asks, noting his ruling states the use of medical marijuana is to be decided between individuals and their doctors.

Mr. Parker has been suffering epileptic seizures since he was four years old -- sometimes as many as 14 a day.

During his October trial, the court was told that Mr. Parker discovered in the early 1980s that by smoking marijuana in addition to using his prescription medicine he was able to stave off a major attack, but still suffered smaller, petit mal seizures.

As a result of this discovery, Mr. Parker's physician came to the conclusion marijuana was medically beneficial for his patient.

The court heard from several marijuana experts who testified to the medical benefits of smoking marijuana for people suffering from a variety of ailments including AIDS, epilepsy and the subsequent nausea and vomiting from cancer treatments.

In 1987, Mr. Parker was found not guilty of simple possession of marijuana by a Brampton provincial court that accepted his argument of medical necessity. The Crown appealed, and the acquittal was upheld in 1988 by the Ontario Court of Appeals.

That decision allowed Mr. Parker to escape punishment, but said nothing about his right to possess and use the drug. Yesterday's ruling, if upheld, would guarantee that right. `This decision looks to the future,'' said Mr. Harnett.

In his written ruling, Judge Sheppard agreed with defence witnesses ``that the timely smoking of marijuana has a therapeutic effect in the treatment of'' several maladies, including epileptic seizures, chronic pain, migraine headaches and muscle spasticity particular to people with multiple sclerosis.

Cynthia Hood, director of community development for the Epilepsy Association of Metro Toronto, said her organization supports an individual's choice for treatment of epilepsy, including looking into alternative or complementing treatments.

She said there are many sufferers of epilepsy like Terry Parker who are searching for alternative treatments, including using marijuana. But she added her organization has also heard from epileptics who found marijuana didn't help them.

Ms. Hood said more epilepsy sufferers would probably use marijuana as part of their treatment if it were legal.

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