By Phillip Smith
An Ontario Superior Court judge Tuesday threw out the sections of Canada's Controlled Drugs and Substances Act that bar marijuana possession and cultivation. The ruling came in the case of R. v. Mernagh, in which a medical marijuana patient argued that Health Canada's Marihuana Medical Access Regulations (MMAR) were so burdensome that the effectively barred patients from gaining legal access to marijuana.
Matt Mernagh is a medical marijuana patient and activist who used the herb to relieve the symptoms of scoliosis, seizures, and fibryomyalgia. Mernagh was unable to find a doctor willing to sign the paperwork to allow him to become a legal patient under the MMAR, and was raided and arrested for growing his own plants without a license.
In the ruling, Justice Donald Taliano gave the government 90 days to come up with a solution in line with the Canadian Charter of Rights and Freedoms. The government could appeal the decision. If the government does not act within 90 days, marijuana will be legal across the province of Ontario, and the Ontario precedent could be considered by courts in other provinces.
The MMAR and the sections of the Controlled Drugs and Substances Act that prohibit marijuana possession and cultivation are "constitutionally invalid and of no force and effect," Taliano found.
There is some irony in the decision. A decade ago, in R. v. Parker, the Ontario Court of Appeals struck down Canada's marijuana laws because they failed to provide access for medical marijuana patients. The MMAR was ultimately the Canadian government's response, but now it is held to be part of the problem.
"The road to marihuana approval is a virtual obstacle course which few patients can navigate," Taliano wrote in the opinion. "Rather than providing access to medicinal marihuana, the MMAR raise so many barriers to access that the defense is meaningless and illusory for most patients... Seriously ill persons who need marihuana to treat their symptoms are forced to choose between their health and their liberty. If they choose their health, they must go to significant lengths to obtain the marihuana they need, including lengthy trips to purchase the drug, resort to the black market, and living with the constant stress that at any time they could be subject to criminal prosecution. These already sick individuals must further cope with the added stress of the stigma and social rejection of friends, family and members of the public who see them as criminals. This is not to mention the real fear of losing one's doctor simply by inquiring about the drug and damage to the patient-doctor relationship."
Judge Taliano also found that Canadian physicians' reluctance to okay medical marijuana use made the MMAR, under which patients require a doctor's approval, unworkable. Their "overwhelming refusal to participate in the medicinal marijuana program completely undermines the effectiveness of the program," Taliano noted. "The requirement for a medical doctor's declaration has rendered the MMAR unconstitutional," he concluded.
"Complaints about the doctor-as-gatekeeper role, from patients and physicians, have been a constant feature of this flawed system," said Kirk Tousaw, a British Columbia attorney and head of the pro-legalization Beyond Prohibition Foundation. "This decision represents a huge step forward for critically and chronically ill Canadians that want to access this safe and effective medicine without being turned into criminals for doing so."
"I know how hard it has been to find a supportive physician," said Jacob Hunter, policy director for the foundation and a medical marijuana patient. "There are a million medical cannabis consumers in Canada and, in ten years, less than 10,000 have been able to become legal. That just isn't right."
The Ontario ruling also excited other legalizing lawyers. "It's significant because it's a Superior Court ruling which has binding effect across the province," marijuana lawyer and legalization advocate Alan Young told the Toronto Star. "By enacting a dysfunctional medical program the government now has to pay the high cost of losing the constitutional authority to criminalize marijuana."
The real test, Young said, will be what the Ontario Court of Appeal decides, assuming that the government does appeal the decision. "If the government is not successful on appeal, they are going to be caught between a rock and a hard place because they don't have an alternative program in mind," he said. "They don't have a plan B. They're in trouble."
Plaintiff Mernagh was pleased as punch, he told Cannabis Culture magazine in a Tuesday night interview. "It definitely hasn't sunk in yet," Mernagh said. "I got everything I believed I could get. We put a lot into this case. [Lawyer] Paul Lewin and I worked literally from Labor Day till the day we went into court. I'm still really overwhelmed when I think about it. It's groundbreaking."
Now, the Canadian federal government has 90 days to either file an appeal, which is almost certain, or to come up with a workable legislative model that allows patients access to marijuana in line with the Charter of Rights and Freedoms. Or not.
"Who knows?" speculated Tousaw, "The government could always choose not to re-legislate, as it did with the abortions laws after the Morgentaler decision [striking down Canada's abortion laws], and finally put an end to the harms being caused by marijuana prohibition."
Who knows, indeed? Prime Minister Stephen Harper and his Conservative government are avowed foes of marijuana law reform. But Canadian voters go to the polls May 2 to elect a new national government, and by the time election day is over, Canada could once again be led by the Liberals. They failed to even decriminalize marijuana the last time they were in power, but perhaps they would be willing to think again in 2011.