Saturday, December 3, 2005
Court will allow couple's pot pleadings
Medical marijuana user, growers will have day after all, justice rules
Former federal health minister Anne McLellan has been exempted, but other officials face a lawsuit that they caused a Vancouver Island man and his wife nervous shock with their handling of his medical marijuana exemption renewal, the B.C. Court of Appeal has ruled.
The three appeal court judges said a B.C. Supreme Court judge had appropriately struck down most of the pleadings filed by Eric and Marlene Young, but decided the couple should be allowed to argue one of their rejected complaints.
In the initial stages of the couple's intended lawsuit, the Supreme Court judge sitting in chambers dismissed claims against McLellan and the government because he felt they had no hope of succeeding.
In a unanimous decision written by Justice Mary Saunders, the appeal panel said the couple may indeed have scant chance of winning but they had a right to pursue one aspect the Supreme Court justice rejected.
Young was given a medical prescription in June 1999 to use marijuana to ease the symptoms of multiple sclerosis. Subsequently, in March 2000 he received a federal exemption that allowed him to possess and grow pot. In December 2001, his wife also received permission to possess and produce marijuana.
On Aug. 21, 2003, for the second time, the Office of Cannabis Medical Access refused to confirm an extension of the Youngs' exemptions. The couple sought relief from the court and almost immediately Ottawa did an about-face.
On Aug. 28, 2003, McLellan renewed their exemptions but withdrew Eric's for cultivation. Later that day she restored it.
"The conduct of employees of Health Canada and Defendant Anne McLellan at the time when the Plaintiffs' exemptions were up for renewal was intended to harm the Plaintiffs by inflicting nervous shock," the Youngs say.
The appeal court said they should have a chance to prove that against the bureaucrats behind the decisions, but not against the minister.
The decision is interesting because it focuses on the Janus-faced response of Ottawa to medicinal use of marijuana.
On one hand, Health Canada is supposed to be running a program for patients; on the other, law-enforcement agencies, vocal political opponents of pot and bureaucrats are trying to scuttle the process.
While Ottawa allows Young and nearly 1,000 others to grow and smoke pot to relieve a variety of ailments, maintaining a good quality supply has proven to be problematic and Canadians have not yet grown accustomed to patients puffing pot in public or in their homes.
The Youngs have faced considerable opposition.
In 2003, other tenants in their subsidized Saanich housing complex complained the smell of marijuana was permeating their suites and the Youngs were ordered evicted by the Capital Region Housing Corp. They complained and in a separate legal action, sought relief from the B.C. Supreme Court to stop their eviction.
"If it were not for cannabis, I would be sitting at home barely able to walk, barely able to feed myself, barely able to live," Eric told the court. "We are quiet folks who live a quiet life."
The couple caused no damage to the suite and was committing no crime.
Still, Supreme Court Judge Malcolm Macaulay said the corporation had every right to throw them out.
"The evidence suggests that accommodating Mr. Young's disability would require the CRHC to deprive many other tenants of the enjoyment of their suites," he decided . "It is also likely that the CRHC would continue to lose tenants. This result would undermine the very purpose for the CRHC's existence, to provide quality housing, particularly to those living at low incomes."
In their latest suit, the B.C. Supreme Court judge excised several sections of the Youngs' statement of claim and removed McLellan as a defendant. The appeal panel agreed with the lower court bencher on all but a single count -- the final tort regarding the effect of the officials involved.
The Youngs say they sustained nervous shock on two occasions: when police arrived and accused Young, falsely he says, of making a bomb threat; later, a nervous shock came with the alleged delay in renewing their exemptions.
The appeal court found this claim grounded in an allegation of negligence, an act in which it was foreseeable that it would cause mental anguish or nervous shock. In other words, intentional harm.
"While it may not be an easy claim to advance, I cannot say, on the pleading as it stands, that it is clear and obvious that the claim will not succeed," Saunders wrote for the panel. "That being so, I would allow the appeal.
She and her two colleagues agreed with the Supreme Court judge and saw no basis to allow McLellan to be personally pursued.