VANCOUVER - The Federal Court of Canada lit a fire under Liberal marijuana legalization plans Wednesday, declaring the old Tory medical pot scheme unconstitutional.

In a stinging indictment, Justice Michael Phelan said the Conservatives' 2013 regulations on medical marijuana violated the liberty and security interests of the charter.

"The access restrictions did not prove to reduce risk to health and safety or to improve access to marijuana — the purported objectives of the regulation," wrote Phelan, who heard evidence in the case last spring.

"In sum, the law goes too far and interferes with some conduct that bears no connection to its objectives."

He gave the government six months to fix the legislation, suggesting a much more relaxed approach that allowed personal growing operations and dispensaries.

A longtime cannabis crusader, lawyer John Conroy said Ottawa should let the 30-day appeal period lapse and move quickly on new laws.

He envisioned a legalized regulatory environment similar to that for alcohol, with a role for all three levels of government, Ottawa setting excise taxes.

That would put the political hot potato of regulating legal pot into the hands of the provinces — the same as alcohol — with municipalities having a role in land-use, permitting and inspection of growing operations.

Phelan's ruling was a game-changer; it swept aside cant and introduced a sense of urgency — it will embolden the dispensary movement and perpetuate the quandary for police about who is subject to the criminal law.

An injunction that shielded former licensed growers from prosecution until Phelan's ruling was extended.

Although not part of any previous medical pot scheme, Phelan called the more than 100 illegal dispensaries across the country "the heart of cannabis access."

Kirk Tousaw, a Vancouver Island lawyer in the case, was overjoyed.

"His historic decision represents a nearly complete victory for patients using medical cannabis in Canada," he said.

"I call upon the prime minister to act much more swiftly and immediately end all criminal sanctions against medical cannabis patients and their providers. In addition, the justice minister should immediately dismiss all pending criminal cases involving medical cannabis producers and dispensaries."

Tousaw added that it is far past time to end the court battles and focus instead on healing the wounds caused by poor regulations and the criminalization of illness.

Phelan concluded the medical benefits of the plant are largely undisputed and recognized, though he acknowledged that much of the information about cannabis and its efficacy is anecdotal.

In the 103-page decision, he shredded Ottawa's defence of the regulations and the disinformation propagated by police and fire officials.

"Many 'expert' witnesses were so imbued with a belief for or against marijuana — almost a religious fervour — that the court had to approach such evidence with a significant degree of caution and skepticism," the judge added.

He completely dismissed the RCMP expert testimony on home invasions, violence and the diversion of pot by organized crime.

Health Canada, Phelan said, had no information licensed growers "ever overproduced, diverted marijuana to the black market, produced unsafely, caused smells, had any fires, produced any mouldy marijuana or suffered any negative health consequences from consuming their medicine."

For 15 years, the country has been trying to establish a working medical program after the Supreme Court of Canada at the turn of the century said seriously ill patients had a right of access to cannabis.

Phelan said "the judicial teachings were that access for approved medical patients is mandated by the charter and that restrictions on access, use and supply were to be strictly limited."

Under the Conservative government's 2013 rules only authorized licensed corporations were allowed to grow and sell medical cannabis.

The personal and designated-grower licences permitted under the old rules were eliminated in favour of a courier-and-mail-order delivery system.

But many growers and patients across the country challenged the constitutionality of those regulations saying they violated liberty and security rights.

The new Liberal administration has promised to legalize the weed and appointed parliamentary secretary to the justice minister, Bill Blair, Toronto's former top cop, to study the issue.

Although Phelan's judgment was not ostensibly concerned with recreational pot, it would be imprudent for the Liberals to forge a new medical plan without deciding how they will introduce legalization.

There are an estimated 38,000 or so licensed medical pot users across the country, about 17,000 who reputedly buy from the new firms.



(The decision is available on the court website.)

Imulgrew@postmedia.com

Facts and figures on medical marijuana in Canada

How many people use it?

About 28,000 people held licences under the old regime and are covered by a court injunction that allows them to grow their own marijuana until Wednesday's Federal Court decision.

What are the rules for obtaining it?

Dried marijuana is not an approved drug or medicine in Canada. However, the courts say people should be provided reasonable access to legal sources for medical purposes. Health Canada requires a health-care practitioner to set out the daily amount of pot required. Individuals can then register with a licensed producer.

Where can it be obtained?

Under the legislation struck down by the Federal Court, it is illegal for producers to provide medical pot through a storefront, compassion club or dispensary. However, the government has authorized 29 medical producers to distribute medical pot to registered patients. The producer is required to securely ship pot directly to either the patient, an individual responsible for the patient, or to the patient's health-care practitioner.

How much pot can be obtained?

Patients are allowed to possess a maximum of 30 times the daily amount identified by their health-care practitioner, or 150 grams, whichever is less. Authorized producers may only provide dried marijuana, fresh marijuana or cannabis oil.

Who produces medical marijuana?

A total of 29 producers are licensed by the federal government: 16 in Ontario, seven in British Columbia, two in Saskatchewan and one each in New Brunswick, Quebec, Manitoba and Alberta.

Some of Canada's biggest producers include Canopy Growth Corp., the parent group of Tweed Inc., Bedrocan Canada Inc., and Mettrum Ltd. Ontario-based Tweed Farms is housed in a former Hershey Chocolate factory, where it is licensed to grow cannabis plants in its 32,516 square-metre greenhouse and sell 3,500 kilograms of dried cannabis, Canopy Growth says.

Are there any storefront marijuana retailers?

Although marijuana retailers have opened across British Columbia, including more than 100 in Vancouver and 26 in Victoria, they remain illegal. However, the City of Vancouver has introduced a bylaw to regulate the stores and more than a dozen applicants have so far progressed through the stages of licensing.

What does research say about the effectiveness of medical pot?

The Canadian Centre on Substance Abuse says there is "sound evidence" from animal experiments and clinical trials involving humans that marijuana is effective for the relief of nausea, vomiting, certain types of pain, and the stimulation of appetite.

Some specific therapies include relieving vomiting caused by anticancer chemotherapy, stimulating appetite in AIDS patients and relieving pain related to multiple sclerosis and advanced cancer.

The centre found a lack of research examining the risks of medical marijuana, although states that studies of recreational users shows health risks related to smoking pot over the long term. It says no research to date has investigated the risks marijuana dependence, in the context of long-term supervised medical use.

The Canadian Press

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