Ontario Judge Rules Canada's Marijuana Laws Unconstitutional
CANNABIS CULTURE - In a case with wide-ranging implications, an Ontario Superior Court judge struck down Canada's laws prohibiting the possession and production of marijuana on Tuesday, giving the federal government 90 days to fix the country's medical marijuana program before the ruling comes into effect and effectively legalizes cannabis.
In an April 12 ruling in the case of R. v. Mernagh, Justice Donald Taliano found that Canada's Marihuana Medical Access Regulations (MMAR) and "the prohibitions against the possession and production of cannabis (marihuana) contained in sections 4 and 7 respectively of the Controlled Drugs and Substances Act" are "constitutionally invalid and of no force and effect".
The case centers around medical marijuana activist (and frequent Cannabis Culture contributor) Matt Mernagh, who has long used medical marijuana to relieve the symptoms of fibromyalgia, scoliosis and seizures, but has not been able to find a doctor willing to sign the required paperwork that would allow him to become a legal marijuana user. Mernagh was raided and arrested for growing his own plants without a licence.
Judge Taliano wrote in his decision:
the road to marihuana approval is a virtual obstacle course which few patients can navigate. Rather than providing access to medicinal marihuana, the MMAR raise so many barriers to access that the defence is meaningless and illusory for most patients. [...]
The deleterious effects of the MMAR on Mr. Mernagh and other similarly situated individuals are clear. 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."
Ultimately, the judge found that doctors' "overwhelming refusal to participate in the medicinal marijuana program completely undermines the effectiveness of the program" and that "the requirement for a medical doctor's declaration has rendered the MMAR unconstitutional".
Because the government has not been able to provide an effective system granting patients access to medical marijuana – as required by the 2000 Ontario Court of Appeal ruling in the case of R. v. Parker (which forced the creation of the MMAR) – the judge struck down the prohibitions on possession and production, giving the government 90 days to come up with an alternative.
At the time of the Parker ruling in 2000, the court deemed simple possession laws unconstitutional but granted the government one year to establish the MMAR rules, which it did. The laws were again thrown out in 2003 when a court ruled the government had failed to change the laws adequately – and an appeal court upheld the decision. This eventually led to activist Marc Emery's Summer of Legalization Tour, where he traveled the country testing pot laws by puffing joints in front of police stations, and had charges thrown out due to the Ontario decision.
Cannabis was eventually reclassified and possession laws were reinstated.
Years later in 2011, medical marijuana users are still fighting for access to medicine, but Tuesday's court decision is another step in the right direction.
"It definitely hasn't sunk in yet," Mernagh told Cannabis Culture in a telephone interview just minutes after he read the judge's decision. "I got everything I believed I could get. We put a lot into this case. [Lawyer] Paul Lewin and I worked literally from Labour Day 'till the day we went into court. I'm still really overwhelmed when I think about it. It's groundbreaking."
As part of the judge's ruling, he granted Mernagh a personal exemption to possess and produce cannabis during the 90 day period of suspension.
Mernagh said he expects the government to appeal the decision, which would bring the case back in front of a court, but the activist said he is willing to go all the way to the Supreme Court of Canada to fight for his rights.
"Our people have waited way too long for this," he said. "This could very well be the final kick."
The evidence in the case stood for itself, Mernagh said, and he is happy the judge actually made serious considerations.
"The judge really listened to us, and we brought a great body of evidence before him," he said. "We spent six months doing prep work, we brought 20 witnesses from across Canada – there were people from Vancouver that testified on our behalf and there were people from P.E.I. that testified on our behalf. We didn't just show him a little piece of the puzzle and fandangle him – we showed him the whole pie."
Drug policy experts and activists have repeatedly criticized Health Canada's flawed medical marijuana program, which has failed to provide proper access to adequate medicine, leading to the proliferation of technically illegal but tolerated medical marijuana dispensaries. Health Canada has also been responsible for long delays in issuing medical marijuana licences and renewals, leading to the harassment of patients by law enforcement.
"Complaints about the doctor-as-gatekeeper role, from patients and physicians, have been a constant feature of this flawed system," said Kirk Tousaw, a BC lawyer and Executive Director of the 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."
Pro-pot Lawyer Alan Young told the Toronto Star the ruling was "significant" and a "step in the right direction".
"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."
Though there's still a lot of work to be done, the ruling is undoubtedly a big win for members of Canada's cannabis community – and some of them are celebrating already.
"It seriously feels like I just won the Stanley Cup," Mernagh said. "And when star athletes win the Stanley Cup they always say, 'I'm going to Disneyland'. So yeah, it feels like I just won the Stanley Cup, and I'm going to Vansterdam!"