The Crown on Monday urged Ontario’s Court of Appeal to overturn a controversial ruling that struck down the federal legislation governing access to medical marijuana.
The case centres on Toronto marijuana activist Matthew Mernagh, who uses the drug to treat his symptoms from fibromyalgia, scoliosis and seizures. Facing a charge of illegal marijuana production, Mr. Mernagh launched a constitutional challenge last year, arguing that the federal Marihuana Medical Access Regulations (MMAR) constitute an unfair barrier for sick people.
The trial judge agreed, striking down both the MMAR and related sections of the Controlled Drugs and Substances Act — a ruling that is on hold pending the federal government’s appeal.
“[Those findings were] extravagant and wholly unsupported by the record,” Crown attorney Croft Michaelson told the Appeal Court Monday, suggesting Superior Court Justice Donald Taliano erred in concluding that Canadian doctors have engaged in a “massive boycott” of the medical marijuana program.
“You cannot say on this record that the majority of physicians in Canada are opposed to the MMAR… It’s mere speculation,” Mr. Michaelson said.
The MMAR require any patient seeking access to medical marijuana to obtain a signed declaration from a doctor. During his trial, Mr. Mernagh brought forward about two dozen seriously ill witnesses who said they encountered major difficulties in finding a doctor who would sign a declaration, prompting Judge Taliano to cite an “overwhelming refusal” by Canadian physicians to participate in the scheme.
Mr. Michaelson contended that finding was groundless, noting between 1998 and 2010, the number of doctors signing declarations each year rose to more than 2,000 from fewer than 10. No evidence was adduced at trial, however, to indicate how many Canadian residents with valid medical needs requested and were denied a medical marijuana prescription, leaving a contextual gap.
Mr. Michaelson said the trial judge made numerous errors by relying on inadmissible evidence, misapprehending the legal effect of previous amendments to the MMAR and having improper regard for the opinions of treating physicians.
“The trial judge essentially substituted his opinion for the opinions of the doctors,” Mr. Michaelson contended.
Lawyer Paul Lewin, who represents Mr. Mernagh, said the trial judge got it right, calling the case an issue of fundamental liberty.
“When you’re really sick, you should be able to decide if [marijuana]is what you want,” Mr. Lewin told the court, noting many patients are currently forced to go doctor-shopping in order to find one willing to sign a declaration. He called for an overhaul of the MMAR, possibly by creating a registry of physicians educated about the potential benefits and drawbacks of marijuana.
A large number of Mr. Mernagh’s supporters turned out for Monday’s hearing, one hoisting a Canadian flag emblazoned with a cannabis leaf in place of the traditional maple.
The case has resonated with many people who obtain relief from the drug, Mr. Mernagh asserted.
“They find it helps them. They can wake up in the morning and continue,” he said outside court, noting the hearing was about more than his own personal interest in avoiding a production conviction.
“We need [the medical marijuana]program to be working. This program needs to change,” Mr. Mernagh said. “It needs to be accessible to Canadians.”
The Appeal Court is expected to reserve ruling after the hearing wraps up Tuesday.
– Article orginally from The National Post.