From the Toronto Globe and Mail

Court gives pot back to epileptic

Return plants, judge tells police

Thursday, December 11, 1997
By Kirk Makin

TORONTO -- A Toronto man suffering from severe epilepsy has a constitutional right to cultivate, possess and smoke marijuana to alleviate his symptoms, a judge ruled yesterday.

Judge Patrick Sheppard ordered police to return the marijuana they seized in 1996 from Terry Parker, a 40-year-old who has spent 20 years fighting marijuana laws.

"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 in Canada," said Judge Sheppard, of the Ontario Court's Provincial Division.

If applied by other judges, the decision would open the door to sick people being allowed to use marijuana based on medical advice. Marijuana is especially useful in controlling nausea and relieving symptoms of glaucoma, multiple sclerosis and epilepsy.

"My suggestion would be that if a person has a legitimate medical need, they should go down to the nearest police station with a doctor's letter and make it known," Mr. Parker's lawyer, Aaron Harnett, said in an interview.

Judge Sheppard stressed that his decision had nothing to do with the recreational use of marijuana but was based on solid proof that the substance is an irreplaceable aid to Mr. Parker's health problems.

He said that to deny Mr. Parker the substance would be to interfere with his right to life, liberty and security of person. Liberty includes the right of an individual to make decisions of personal importance, the judge said, and health is surely one of them. "Health is fundamental to the life and security of each person."

Judge Sheppard said not only is it vital to Mr. Parker that he control his seizures, but it is in the interest of the community -- "the same community who pay his health-care costs."

He noted that Mr. Parker has been assiduous in seeking medication advice over the years. Doctors generally believed no medication was as capable of combatting his frequent seizures as speedily as marijuana taken in conjunction with pharmaceutical drugs.

The judge added that he is satisfied that marijuana is not addictive, does not lead to criminal behaviour and rarely leads to an individual's trying harder drugs.

It is also "relatively harmless" compared with hard drugs, alcohol and tobacco, Judge Sheppard said. "The general agreement of esaid. "The general agreement of experts appears to be that regular moderate use of marijuana causes no physical or psychological har

Mr. Parker has been in and out of court since 1977 fighting for the right to consume marijuana unmolested. He has smoked marijuana on a daily basis since 1969.

He said yesterday he has been fighting the law for so long it has not sunk in that he has finally won. "I appreciate the courage of Judge Sheppard and I hope many judges across the country will follow this decision."

In an affidavit to the court, Mr. Parker said he suffers virtually no seizures if he smokes marijuana. Without it, he has three to five grand mal seizures a week and 15 to 80 petit mal seizures.

Mr. Parker has been charged eight or 10 times for marijuana offences. He has been acquitted twice, and served one jail term of 60 days.

The latest charges were laid July 18, 1996, when police spotted several three- or four-foot marijuana plants growing on the balcony of Mr. Parker's Toronto apartment.

A search party seized a total of 57 plants on the balcony and 14 more plants growing indoors in a hydroponic setup.

The only charge Judge Sheppard convicted Mr. Parker of yesterday was trafficking. He said he could hardly do otherwise, in view of Mr. Parker's having told police he gives marijuana to friends who also suffer from seizures.

Mr. Parker received 12 months on probation for the offence.

"He is a chronic offender," Judge Sheppard said. "Barring a medical discovery, his need for marijuana will not abate."

Mr. Harnett said the decision leaves the law even more out of kilter. Those with a legitimate medical condition are now able to use marijuana but are unable to purchase it, he said.

"I think this will be the impetus to speed the process along in Parliament," Mr. Harnett said. "It is possible to see that as Canadian society grows used to seeing loved ones and children using marijuana for medical necessity, there will be a growing sense of the futility of continuing to prosecute."

However, Justice Minister Anne McLellan told reporters yesterday the decision will not push Ottawa to move any faster on a possible overhaul of the marijuana laws.

"We are obviously going to take into account various things that have taken place in various provinces," she said. "Today is just one more of those events."

Mr. Harnett said he expects the Crown to appeal the decision. Currently, the ruling is considered persuasive but not binding on other judges.

However, Mr. Harnett said he has spoken informally to many Provincial Division judges in the Toronto area, and yesterday's decision represents a general opinion.

"They don't see the need to haul small-scale users in to clog up provincial court and then mete out criminal sanctions," he said.

In his judgment, Judge Sheppard said the Parker case was ideally suited to the cause of challenging the law. He said Mr. Parker's cultivation of marijuana was a direct result of his medicinal needs.

"It allowed him to control the quality of the drug smoked, to maximize its benefit and minimize any risks from an unadulterated product," he said. "Further, it was an economic necessity for him to grow his own marijuana. All witnesses agreed that at illicit street prices, the marijuana used by Mr. Parker would cost approximately $5,000 annually."

If Mr. Parker were to be jailed for breaking the law, the judge said, he would face genuine harm from his seizures. "A jail cell containing hard objects, wall and floor would be a most dangerous environment in which to suffer a seizure," he said. "The anxiety from worrying about such an event could be a cruel and unusual punishment in itself."

Copyright © 1997, The Globe and Mail Company
All rights reserved.

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