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Sometimes no law is the best law: Aaron Harnett

Article Originally Published on November 2, 2011 by Advocate Daily. 

Eleven years after Canada’s pot prohibitions were struck down, medical marijuana regulations have been spinning in a “vicious circle,” says Toronto criminal lawyer Aaron Harnett.

“Patients need medicinal marijuana. The federal government really doesn’t want anyone to use it, as is obvious from Prime Minster Steven Harper’s latest escalation in the war on drugs,” says Harnett. “But, because of the Charter, the feds have to give access to it to some seriously ill people.”

Harnett was reacting to a recent story that reveals most doctors are still declining to sign the declarations patients need to get legal access to medical marijuana. That word comes in the wake of proposed changes in how Health Canada regulates access to the drug. Read Story

“If the federal government is sick of the hassles of trying to administer the drug to the hard-to-define group of people who can actually demonstrate they really, really need it, they have to allow the loopholes in the prohibition. So now they are going to hand over the reins on this issue to the doctors,” says Harnett. “The doctors don’t want to be stuck with the job, because so long as the drug is otherwise illegal, and because they can’t rely on big-pharma studies to immunize themselves from troubles, it is more hassle than it’s worth. Big pharma doesn’t want to get involved, because there is no money in a drug that granny can grow in her back yard for free.

“Doctors will refuse to be part of this regime, sick people won’t have access, some will use it anyway, they will get arrested, and we will all go back to court, again, and the court will strike down the laws, again,” says Harnett.

“This feedback loop is a natural outcome in any process based on illogic. You can’t make sense of something that is fundamentally senseless, as in the criminalization of an essentially harmless, ubiquitous and very popular drug-bearing plant with a very long history of use by humans,” he notes.

Harnett says, “This all started when the Ontario Court of Appeal in 2000 struck down the pot prohibition in a case called R. v. Parker. The court struck it down because it was obvious to them that for some seriously ill people, using the plant was a reasonable thing to do, and throwing them in jail for doing so was highly unreasonable.”

Says Harnett: “If the federal government had simply done nothing in the aftermath of that decision, as in the federal government’s lack of response to the legal vacuum post-Morgentaler, we would have the same equilibrium on pot that we now have on abortion.

‘Sometimes no law is the best law.”

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