How A Canadian Lawyer Just Defeated Canada's Marijuana Laws

You asked me to elaborate on the J. Borenstein's ruling yesterday, so
here it is.

If you look back to the Parker judgment in July 2000, which is the
foundational case for arguing the invalidity of the criminal
prohibition, the government sought to defend the law on the basis that a
medically needy person could apply to the Minister of Justice for an
exemption. The court found that this wasn't good enough, since there
was no legislated standard upon which the minister would exercise his
discretion. They struck down the law, but suspended their judgment for
12 months to allow the government to respond.

The Marijuana Medical Access Regulations (MMAR) were introduced in July
2001 in response to Parker, and provided a regulatory scheme by which
someone could apply for a medical exemption.

(Note: The Parker decision relied up the passage of Prop. 215 to
recognize that medical cannabis patients had rights in Canada as
well. -SK)

The Ontario Court of Appeal eventually held (in Hitzig) that the MMAR
were also deficient, because although they provided a legal mechanism
for someone to obtain a medical exemption, they did not provide for a
way to obtain pot legally. Thus even someone with a legal exemption had
no way of obtaining pot without someone breaking the law to get it to
that person. As a result of that deficiency, the court held that the
pot possession law had been invalid from July 2001 (right after the 12
month expiry period from Parker) until the date of the judgment in
Hitzig - October 2003. However, in an effort to get the pot law back on
track, the court struck down parts of the MMAR, and having done so, held
that the pot law was back in effect, as the MMAR scheme was
constitutional.

The provisions the court struck down addressed the legal supply issue.
The court was attempting to legalize and foster the creation of
compassion clubs. Therefore, it struck out of the MMAR the prohibition
on paying someone to grow your med pot for you; it also struck out the
provisions that prohibited growing med pot for more than 3 people or
combining with more than 2 other people to grow med pot.

2 months later, the government *reintroduced* the regulations that
prohibit growing for more than 3 people and for more than 3 people from
combining to grow med pot. Instead, the government said it would start
supplying med pot and/or seeds itself. Health Canada developed a
"policy" under which it outlined who could apply, how much you could
get, how you could get it, and how much you had to pay for it.

Justice Borenstein held that by reintroducing the regulations struck
down by the court, the government rendered the law invalid again. The
Health Canada "policy" was an insufficient substitute, since it lacked
the force of law. It is a departmental policy that can be changed at
whim, or even ignored. An aggrieved party cannot go to court to seek
enforcement of a government policy. It basically vests discretion in
the hands of the minister - the very problem the court said in Parker
was unacceptable. The corollary to this is that if the Health Canada
policy was implemented by way of regulation, the law would likely be
valid.

The ruling is not a reflection of whether or not the Health Canada
policy is working or not. It isn't a reflection on whether the Court of
Appeal in Hitzig acted fairly or not. It is simply a reflection of the
fact that the government has once again, through its arrogance, screwed
up on the issue of pot.

---- Brian McAllister