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DGS: Doherty, Goudge, Simmons JJ.A.
DGS: [136] The first way in which the Hitzig applicants say
that the conditions of the MMAR do not comply with
fundamental justice is the daily dosage limit they place on
the amount of marihuana that an ATP holder can possess at
any point in time. They argue that this is unreasonable
because, given the unpredictability of the strength and
quality of the marihuana that is available, this limit may
well deprive the individual of sufficient medication to
properly control the symptoms of his or her serious
medication condition.
[137] This argument fails for two reasons. First, the state
has a substantial and compelling interest in ensuring that
the dosages of this medication are no greater than necessary
both to protect vulnerable patients from an untested drug
and to ensure against the diversion of any excess to the
illicit drug trade.
JCT: Protecting society from a non-toxic medicine?
DGS: A daily limit fixed by a doctor is a reasonable way to
achieve both ends. Second, if the daily dosage limit proves
inadequate to treat the symptom properly, the MMAR provide
for it to be raised on medical recommendation, so that the
individual's medical need is met. Thus, the daily dosage
limit cannot be said to impose an undue burden on individual
rights and represents a fair balance between the individual
interest and the state interest.
[138] The second attack on the barriers created by the MMAR
focuses on the use of physicians as gatekeepers in the sense
that every application must be supported by a doctor and it
is that doctor who must declare that marihuana is
recommended to mitigate the symptom involved. It is argued
that this places unwarranted power to determine whether an
individual receives a medical exemption in the hands of
physicians rather than letting the individual decide for him
or herself or having the Minister of Health do so. It is
further argued that the serious concerns of several central
medical groups about the gatekeeper role for physicians
means that doctors will not assist individuals to obtain
medical exemptions.
JCT: And the fact some doctors will help other people does
nothing for people whose doctors will not sign, ergo, MMAR
still can't work as long as all doctors don't participate.
Har har har har. I told them right at the start of the
medpot wars nothing but a doctor's prescription being
automatically exempted could comply and no one gets the
point yet. But they're treating it like we want no doctor
control.
DGS: [139] Again, we do not agree. Whether marihuana will
mitigate the particular symptom of an individual with a
particular serious medical condition is fundamentally a
medical question. Just as physicians are relied on to
determine the need for prescription drugs, it is reasonable
for the state to require the medical opinion of physicians
here, particularly given that this drug is untested.[11]
([11] Every jurisdiction in the United States that has
enacted a law to permit the medical use of marihuana by
seriously ill persons requires the prior approval of a
physician in order to access this drug. As of the time these
appeals were heard, eight states had enacted such laws:
Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon
and Washington. Similar bills were before the state
Legislatures in Iowa, Massachusetts, Minnesota, New York,
Rhode Island, Vermont and Wyoming.)
JCT: Not necessarily for non-toxic herbs though I could have
lived with it before the law died and now I won't take it
anymore until someone specifies an actual danger to health
and why marijuana has priority over alcohol and processed
tobacco.
DGS: The second argument is answered by Lederman J.'s
finding that despite the concerns of central medical bodies,
a sufficient number of individual physicians were
authorizing the therapeutic use of marihuana that the
medical exemption could not be said to be practically
unavailable.
JCT: More than 399,900 epileptics out of 400,000 haven't yet
got it and he said that's an acceptable performance. Imagine
a judge building a bridge. Har har har har.
DGS: This finding of fact is entirely reasonable on the
record in this case and we would not interfere with it.
JCT: Performance by judge's standards! Har har har har. A
few bridges don't fall down so nothing wrong with judges
building bridges. Har har har har. They find these kind of
performance stats acceptable?
DGS: Of course, if in future physician co-operation drops to
the point that the medical exemption scheme becomes
ineffective, this conclusion might have to be revisited.
JCT: Gee, if it drops to 1 in a million, maybe that's not
enough but 1 in 100,000 seems quite effective.
DGS: [140] The third attack on the conditions of the MMAR,
and the one focused on in the argument before us, rests on
the requirement that the physician support for a medical
exemption for individuals in category 2 and category 3 must
come from specialists. Again, the Hitzig applicants make two
arguments in mounting the attack.
[141] First, they say that because marihuana is an untested
medication there is no justification for requiring medical
support beyond the individual's own general practitioner
since the specialist has no knowledge advantage. They say
that when this is combined with the practical difficulties
that exist in accessing specialists, particularly in rural
areas, the specialist requirements for categories 2 and 3
constitute an unreasonable barrier which significantly
interferes with those in medical need from accessing the
medication they require.
[142] In our view, this argument too does not succeed. In
order to qualify for a medical exemption, both individuals
in category 2 and those in category 3 must have a
declaration from a specialist practising in an area of
medicine relevant to the treatment of the individual's
medical condition causing the symptom to be mitigated. The
declaration must say that all conventional treatments for
the symptom have been tried or considered and why each is
medically inappropriate. The requirement for a declaration
in this form serves substantial and compelling state
interests. First, it serves the state interest in protecting
the health and safety of its citizens in relation to an
untested drug. Second, it serves the state interest in
complying with international conventions aimed at
restricting the use of drugs such as marihuana save for
legitimate medical and scientific purposes. A specialist in
the treatment of the particular medical condition is likely
to have more knowledge than a general practitioner of the
complete range of possible treatments, including ones that
may just be emerging.
JCT: It's still no excuse to diss the doctor. If he thinks
he needs a specialist, he'll ask. It's not up to non-medicos
to dictate when his professional degree is deemed not
qualified enough. Engineers and doctors have a differnet
understanding of what professionalism is than lawyers. Even
though we're all called professions, law is like a voodoo
compared to medicine or engineering. These shamans prove
the point accepting performance standards that would be
laughable in another profession.
DGS: The specialist requirement thus better assures that
marihuana is used only if no other more conventional
medication is effective. Given that marihuana is an untested
drug,
JCT: It's incredible that it still hasn't penetrated their
thick non-scientific skulls that those millions of anecdotes
they cited earlier are the tests to show marijuana as one of
the most-ever-tested medicines in history.
DGS: this is a substantial and compelling state interest. So
too is compliance with international conventions that are
designed to restrict the use of drugs save for legitimate
medical and scientific purposes a state interest which the
specialist requirement also serves.
JCT: Compliance with international treaties just couldn't
balance 3,600 dead epileptics a year in my estimation. But
these jugdes built their own balance and it only works 1 in
100,000 times and certainly not this time.
DGS: [143] Moreover, on this record, the Hitzig applicants
simply have not shown that the specialist requirement is a
significant impediment to obtaining a medical exemption.
JCT: Notice that they still haven't handled the fact that
doctors associations have advised Parker's doctor not to
participate, the real MMAR killer.
DGS: Only one of these applicants, Ms. Devries, can point to
any difficulty, due to a lack of access, in getting
specialist support for her application, and there is some
doubt that this individual sought actively to meet this
requirement, because she first spoke to a specialist only a
few days before her cross-examination in this proceeding.
Here as well, Lederman Js finding of fact, at paras. 154-56,
that the specialist requirement does not make the medical
exemption practically unavailable, is entirely reasonable
and not open to interference by this court. However, as with
the concern over physician co-operation, should the passage
of time reveal that access to specialists is a significant
practical impediment a different conclusion might be
reached. Thus, on this record we conclude that the
specialist requirement does not constitute an undue
constraint on the individual's ability to get a medical
exemption and represents a fair balance between the
interests of the individual and the state.
JCT: Any constraint is too much. There is no level of due
constraint on epileptics getting their anti-seizure
medicine. They seem to have difficulty dealing with black
and white and seem stuck on grey contraint: some but not
undue.
DGS: [144] However, in our view, the second argument in this
attack does have merit. The Hitzig applicants simply say
that the requirement to have a second specialist support the
application for an individual in category 3 does little or
nothing to enhance the state's interest and in that sense
represents an arbitrary restriction.
JCT: The requirement to have more than 1 professional is the
problem. Judge's don't seem to grasp how real professionals
work. Real pros are doing their best already and know
when they need to call for help. They may not be challenged.
DGS: [145] We agree. The second specialist requirement is
clearly an additional restriction on the acquisition of a
medical exemption by those in category 3. Yet it is hard to
see that the second specialist adds anything that could be
said to advance the state interest. The second specialist is
no differently qualified than the first. Ironically, the
second specialist is not asked at all to opine about the
availability of other possible treatments, which is the
principal justification advanced by the state for any
specialist involvement. Rather, the second specialist is
required only to agree with the first specialist that
marihuana would mitigate the symptom and that the benefits
outweigh the risks. And in doing so the second specialist
does not see the individual but merely reviews the medical
file. In these circumstances the requirement for a second
opinion adds so little if any value to the assessment of
medical need that it is no more than an arbitrary barrier
standing between an individual in category 3 and a medical
exemption. In this particular only, the econditions of the
MMAR do not accord with the principles of fundamental
justice.
JCT: So three signatures is too much but two's okay.
DGS: (x) The s. 1 Analysis
[146] Having found that this scheme of medical exemption
violates s. 7, it remains to consider s. 1. Can the
Government demonstrate that the offensive aspects of the
MMAR constitute a reasonable limit that is demonstrably
justified in a free and democratic society? We agree with
Lederman J. that the answer to this is no. Indeed, we are in
substantial agreement with his reasons.
JCT: Which did not deal with the strongest point, life.
They're in agreement with the weakest points. What else to
expect?
DGS: [147] In the course of our s. 7 analysis, with respect
to both eand supply, we have undertaken a balancing between
the interests of the state and the interests of the
individual
JCT: Bet they left out the right to life from their
analysis.
DGS: and have concluded that the offending provisions
of the MMAR do not advance the collective interest
sufficiently to justify the limitation which they place on
the individual's rights.
JCT: It's not the MMAR that's limiting our rights, it's the
CDSA. Of course, as long as they keep mis-identifying the
law that is the problem, they'll be able to apply the
solution to the wrong problem.
DGS: The factors which we considered there are also germane
to the s. 1 analysis. Hence, we do not think it necessary to
repeat in detail the balancing exercise in relation to s. 1,
particularly since there, unlike s. 7 the onus of
justification rests on the state, making the state's task
that much harder.
[148] Suffice it to say that we agree with Lederman J. that
the MMAR seek to provide a medical exemption while pursuing
the objectives of better public health and safety and
effective narcotic drug control consistent with Canada's
international treaty obligations. We accept that these
objectives are pressing and substantial.
[149] However, like Lederman J., we conclude that both
offending aspects of the MMAR clearly fail the first step in
the proportionality test required by s. 1. There is simply
no rational connection between either of the two offending
aspects of the scheme of medical exemption and these
important objectives.
[150] The first aspect is the requirement that those
individuals in category 3 have the support of a second
specialist. As we have said, this requirement is at best
redundant. It adds no value to the application and does
little or nothing to advance the state objective. In
particular it does nothing to promote public health and
safety. And it is entirely irrelevant to effective narcotic
drug control. There is no rational connection between this
requirement and the state objectives.
JCT: Focusing on the really really minor points. With that
kind of an attitude, no wonder they can live with such
inferior performance. They're used to mediocrity so they
have to find it acceptable.
DGS: [151] The second aspect is the maintenance of
significant barriers between individuals with the medical
need to use marihuana and a licit supply of the medication
which they require. As we have described, the effect of the
MMAR is to force seriously ill individuals to seek the
medication they need from the black market with all the
risks of tainted product that this presents. Exposing these
individuals to these risks does not advance the objective of
better public health and safety. Rather, it is contrary to
it. Equally, driving business to the black market is
contrary to better narcotic drug control. Here again there
is an absence of rational connection with the state
objectives.
JCT: Focusing on the great risk from the black market let's
them ignore the bigger risks of dying by not getting any.
DGS: [152] Thus, neither aspect of the MMAR which we have
found to contravene s. 7 can be saved by s. 1.
JCT: And if the little problems cause the CDSA to fall,
imagine the big one of the thousands of dead epileptics.
DGS: (xi) The Appropriate Remedy
[153] Having found that the MMAR do not create a
constitutionally valid medical exemption to the criminal
prohibition in s. 4 of the CDSA, we must now shape a
declaration under s. 52 of the Charter which responds to the
constitutional shortcomings of the MMAR.
JCT: Here's where we argued for the declaration that the
CDSA prohibition is invalid since Terry Parker Day that Alan
Young did not argue for.
DGS: We must then determine whether that order should be
suspended. As we shall explain, we have concluded that a
precisely targeted declaration is appropriate and that it
should not be suspended. In this case, the same
considerations which dictate the relatively narrow focus of
our declaration of invalidity militate against any
suspension of that order. We will identify and address those
factors subsequently, as they apply to both the scope and
timing of the remedy we would grant. First, however, we must
turn to the order proposed by the Hitzig applicants.
[154] The Hitzig applicants argue that the appropriate
remedy for the constitutional deficiency in the scheme of
medical exemption crafted by the Government is the
declaration granted by Lederman J., namely that the MMAR in
their entirety are constitutionally invalid and of no force
or effect. In their cross-appeal they also seek a
declaration that the criminal prohibition against possession
in s. 4 of the CDSA is of no force or effect in relation to
marihuana.
JCT: So in their arguments before Lederman, Young went for
the misguided shot against the MMAR and then got permission
to take a shot at my target, the CDSA, in the cross-appeal.
Suddenly, Young tackles the CDSA and the court doesn't
mention that's it's our motion.
DGS: Of course, without the invalidity of the marihuana
prohibition in s. 4, an order declaring the MMAR to be of no
force or effect would leave those in medical need of
marihuana with no way to possess it without criminal
sanction.
JCT: Gee, that's what I've been saying all along and what
Alan Young told the world I had wrong. And now he's in
stealing credit for the very move he told everyone was
wrong. Har har har har. How embarassing.
DGS: [155] We find the remedy contended for by the Hitzig
applicants to be overly broad and inadequately tailored to
the constitutional deficiencies in the MMAR. Section 52(1)
of the Constitution Act, 1982 requires the court to strike
down any law that is inconsistent with the Constitution, but
only "to the extent of the inconsistency". This invites some
precision in selecting a remedy.
[156] Dealing first with the deficiencies in the MMAR, it is
true that the declarations sought by these applicants have
the effect of removing the barrier of criminal sanction for
possession of marihuana by those in medical need of it.
However, the remedy proposed by the respondents achieves
this result only by striking down the MMAR in their entirety
and by coupling this with the invalidation of the marihuana
prohibition in s. 4 of the CDSA.
JCT: Cute. Young's Hitzig's didn't ask for what we did but
they get credit for our move by its being "coupled." And the
court forgot they're not being asked to invalidate the CDSA,
the Parker court already did that, on Terry Parker Day. They
may talk about them also doing it, I suppose, but it seems
pretty laughable. When will these guys get their facts
straight?
DGS: The latter declaration would exempt from criminal
sanction all those who possess marihuana, not just those who
must do so out of medical necessity. Thus, the remedy sought
goes well beyond the deficiencies in the medical exemption
crafted by the appellant. In that sense the remedy sought by
these respondents is simply too broad.
JCT: But it's the remedy that was already been granted by
the Parker court, that the law died when they missed the
deadline. That they say the Parker Court's remedy is too
broad is not in their power to change. I like the Parker
Court's remedy just fine and I don't think it's too broad.
Regardless, they have no power to touch the Parker court's
too broad remedy. But they will, won't they?
DGS: [157] Turning to the supply deficiency in the MMAR, the
remedy proposed by these respondents does nothing to address
this constitutional defect. Even if the entirety of the MMAR
and the marihuana prohibition in s. 4 of the CDSA were
declared invalid, those with a medical need for marihuana
would remain without a licit source of supply. The proposed
solution is simply not tailored to meet that problem.
JCT: Of course, they're assuming that no one has to change
the legislation and that marijuana is still on the schedule
II for the other sections too. If they're wrong about
marijuana still applying to the other sections, then they're
wrong about sourcing problems once it's legal. Their premise
is always continued prohibition.
[158] Rather, we think that the remedy must be more
specifically targeted to the constitutional shortcomings
that we have identified in the MMAR.
JCT: The Parker Court had no MMAR to work with when they
handed down their remedy before these guys hand down theirs.
Sorry but I like the Parker Court's remedy a lot more than
these guys who don't have such power anyway.
--
Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel
for UNILETS interest-free time-based currency in U.N. resolution C6
to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel 519-756-1325 USENET: can.politics
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