Layman’s Summary of the Court of Appeal’s Decision in R. v. Mernagh

CANNABIS CULTURE – Ontario’s Court of Appeal released its 60 page decision today in the case of R. v. Mernagh. In layman terms, the decision can be summed up as follows:

1. Facts: The three judges of the court agreed that there was insufficient evidence for the trial judge to conclude that physicians were refusing to give eligible individuals the documentation they need to prove their exemption from Canada’s cannabis prohibition laws. Without sufficient evidence of such a boycott, there was no evidence that the government’s exemption system (the MMAR) was illusory. The court essentially said that, “logically”, for Mr. Mernagh to have won the appeal, he would have to have tendered medical evidence that he was eligible for exemption under the MMAR, but that doctors would not provide him with that medical evidence. How was Mr. Mernagh to collect the medical evidence that doctors refused to give him? The court didn’t elaborate on that, but it was certain that – in the absence of such evidence – there was no reason to assume that doctors are refusing to provide such evidence. In short: One must have evidence that X is true in order to prove that one cannot obtain evidence that X is true.

2. Re Law: Justice Doherty added a legal argument to the decision: even were a person to have compelling evidence that all physicians were refusing to provide medical evidence of eligibility for exemption, the resulting inability of people to get exempted would not render the regulations unconstitutional. The reason: only governmental barriers to getting an exemption could cause the regulation to be unconstitutional. Because physicians aren’t government, if physicians refuse to sign, that’s not a government decision. Put another way: if the doctor’s don’t play ball, that’s not the government’s fault, so the law cannot be said to be unconstitutional.

It is not normally the case that one can appeal findings of fact. That did not appear to be the case in this appeal concerning cannabis prohibition. The bulk of the decision to allow the appeal was based upon the finding that the trial judge got the facts wrong.

It is perhaps for this reason that Justice Doherty provided the legal conclusion he did. His legal analysis would certainly discourage one from bothering with trying to marshal the evidence the court said was lacking in this case. What would be the point, if even a rock solid proof that physicians are boycotting the federal exemption regulation would not cause the court to conclude that the regulation provides only illusory access to an exemption, and would not cause the court to strike down Canada’s cannabis prohibitions as unconstitutional?

The court allowed the crown’s appeal, quashed the trial judge’s orders, and ordered a new trial. It left it up to the Crown to decide whether or not to reinstate the charges against Mr. Mernagh.

I have provided a link to the text of the decision above, and encourage the reader to judge for himself whether my oh-so-brief summary of the decision captures its essence, or unintentionally misses its essence. Your informed comments are welcome.

Disclaimer: None of the above should be relied upon as legal advice. It is not legal advice, and is not provided as such.

Paul McKeever is a lawyer, writer, filmmaker and leader of the
Freedom Party of Ontario. Read his blog at

Photo of Matt Mernagh by Victoria Janelle Polsoni



  1. Anonymous on

    I agree. Because it was a test case / charter case, they should’ve had all their i’s dotted and t’s crossed before going in. Big mistake. Too much to say here.

  2. Anonymous on

    For those putting blame directly on Mr. Mernagh or Mr. Lewin I think you are way out of line.

    First of all, this case was not a preordained matter. Rather, Matt got arrested for growing plants. It is the obligation of his lawyer to, as far as possible, raise every argument and defence. In this case, one option was to challenge the constitutional validity of the charges. From the point of view of providing legal services to his CLIENT (i.e. not the rest of us) he did exactly that: at trial he kept Matt out of jail and even losing the appeal Matt will have benefited from 2-4 years delay in being sentenced for the original crime. So regardless of your feelings about Matt, he got caught – he had to do something. I dont think it would have helped the movement any more had he just plead guilty to possession charges. To put this another way, if any of you were arrested tomorrow for a cannabis offence (knock on wood) and your lawyer said a constitutional argument might keep you out of jail, but who knows if it will work, wouldn’t you take the chance?

    Second, those who do not practice in the area of health law have no idea how difficult it is to get doctors to testify. They rarely will do it voluntarily and it is hard to get a judge to subpoena a doctor. This makes it very difficult to prove what the judges at the Court of Appeal asked for. Essentially, if Matt could find a doctor to testify couldn’t he just find a doctor to sign his MMAR papers?

    Third, even where doctors do agree there is expense. A recent successful charter challenge to the Supreme Court of Canada was the Case of Daniels v Canada involving non-status Indians. This case won. However, counsel for the applicant spent OVER EIGHT MILLION DOLLARS on the case. This means millions were spent on expert evidence, gathering other evidence and expert legal analysis. I do not know what Mr. Mernagh’s budget was, but I think its fair to say millions were NOT spent on this case. I dont’ see how that is Mr. Mernagh’s fault nor do I see how that is Mr. Lewin’s fault.

    Finally, even if this case lost it is massively successful. It was in almost every Canadian news publication and many were sympathetic. The Globe even had an editorial saying they couldn’t understand why we would waste public funds prosecuting a man growing some plants because he is sick. This is good for us.

    At the end of the day, real change comes from the legislature. The courts only have blunt tools to strike down legislation or read out constitutionally offensive language. Crafting new, positive laws is the role of the legislature. Although this case lost the day, it has had positive impact on average Canadian’s views about medical cannabis, in my opinion.

  3. reggaesmoker on

    I think the next step should be holding doctors accountable to their oaths. Denying someone medicine that can help them and is available should be a crime. At the very least we need a doctor to lose his job due to refusal to sign the exemption forms.

    I’m no expert but i feel like the real problem here is the docs are more scared of the government then they are of the people.

    We need to change this

  4. blindpig on

    So the government makes a legal road to acquire medicine but doesn’t make the gate keepers take part? This makes no friggin sense to me. So the government is claiming that if the doctors don’t take part that it’s not their fault? What a crock of shat. It is their fault, they were the ones who constructed the very program that outlined the doctors as gate keepers. So yes it is their responsibility to make the doctors aware and empower them with regulations regarding access for the patients. If they commission a program they should take responsibility to make sure the program is feesable in every aspect. Stating that the responsibility for the programs failure is the doctors alone would suggest that we take the doctors to court for failing a program that the government installed. What an injustice.

  5. Anonymous on

    Wikipedia Supreme Court of Canada. You think harper appointments might have had anything to do with this? Ezzz No Ree!

    Legalize + Tax = No incentive for mass profits that go into the criminal underworld. A world that is regulated by gun violence and corruption (Mexico & States).

    Tax revenue becomes a mass base for Infrastructure spending, Health-Care/Social Programs, Education!

    This is just insane. Wake up Albertians! Just because you work in the oil fields doesn’t mean you can’t be a social liberal!

  6. Anonymous on

    Political ruling.

    Very sad to see here in Canada.

    We’re suppose to be the country of rational actors.

  7. awesomesound on

    I am sorry and stunned to here about matt’s Case the evidance is overwhelming,what will happen exit? will he go further to the supreme Court?
    Looking forward, My major Worry is the changes to the Health Canada medical marijuana program, If Harper forces my Club out of business I will have to consume Health Canada’s so called medicine from Harper’s Commerical box store Pot Farms. if your Commerical Grower{Your Choice} does not have the strain you want, you have to go to your doctor for another prescription to take to another Grower.
    I my self am serviced by a Compassion Club they are serviced by Individual growers who produce a variety of strains for a variety of illnesses and about half of them are at subsidized prices at 5-7 dollars a gram. If my Club gets forced out of business and they (“don’t care what you say” Health Canada} can’t provide the service I need I will be returning to my dealer.
    To all Doctors & Politicians go to then click on Cannabis Videos-Updated Daily, Here you find information videos on everything from Dispensaries and how they work to Accredited Doctors explaining the usages, effects, side effects of Cannabis. Look further into this site and you will find studies, research modals and findings. Or if you choose just search Google and you will find all the necessary information you will need including Prescriptions and Dosages per day. Please Do Not say there is not enough Research or Studies for you or your patients to make a honest responsible choice for Cannabis as a medical treatment if the prognosis is warranted, the critically ill and chronic pain suffers don’t have 15 years for Cannabis to be “Accepted “ by the Medical Profession, the Government and Society.
    I pose this question: Would you be more concerned with a Patient that has chronic debilitating pain that is taking Opioids that is incognative or a Patient that is taking 4-8 grams of Cannabis per day and is lucid and able to do at least some of his daily activities? Because that is the difference for Patients that are on the MMAR program.
    If Health Canada’s commercial growers are to equal the service and compassion of the Dispensaries they will need to not only grow but be able to breed specific strains for all illnesses not just 1 strain as they do right now, and also offer a few strains at subsidized prices at 5-7 dollars a gram for Patient that are on fixed incomes and if they are going to price per strain as they do at the Dispensaries top price CAN NOT exceed 12 dollars per gram for the best strains or we will all go back to our dealers or what the Government calls the Black Market.The Harper Government mite what to consider licensing the growers & breeders that are already growing safe quality medical Cannabis.Please feel free to use this to further our cause. f The Patient

  8. awesomesound on

    MMAR Impact Statement
    Through a Patients Eyes

    I Paid Just Over $500.00 for my ATP because my doctor would not sign, but I meet the criteria of the MMAR program through any Physician. Until all Physician are mandated to accept there patients needs over there own (ignorance}in brackets because tests are done, research is in, Guess What? Cannabis IS MEDICALLY BENIFICAL. .

    To start off a little history of the HELL I went through to get my ATP certification:

    I asked my doctor and gave him the app and the waiver he said he would look in to it. At my next appt he said he took the matter to the ethics board and was told that he would open himself up to rev can audit, and did not want that. So I went to with with my MRI that says I have Osteoarthritis. I got doctors appt and was told that she was filing a B2 app for me because Osteoarthritis is not a B1 illness and that I may be Rejected because the doctor at the pain clinic that sent me for the MRI is not a registered specialist as required on a B2 app. 2 Months later I received notice from Health Canada to find a specialist. Its now 2 Months later I have sent out 4 referrals from my doctor, 2 have responded with a refusal of the referral saying simply I can not Help this patient.
    Another month has gone by and I got review of my App, I have specialist report stating chronic pain due to osteoarthritis and doctor has stated cannabis as a pain reliever, health Canada has denied report because doctor is not a Royal Colleges of Physicians degree. My Doctor is now trying to convince them on the merit of the specialist, and in all this I asked my Doctor about Her Contact at health Canada and if there is any Medical people there she said no, How in the heck is it Legal for a non medically licensed government person to be making decisions on My HEALTH CARE. The law was struck down because” patients are unable to find a Doctor to sign the app”, I have 2 Doctors that are recommending cannabis.
    Just had it out with Health Canada, They are not budging Royal Colleges of Physicians degree or NO ACCSESS!!!!
    I am Just a guy in pain trying to continue to work and take care of my disabled wife and by the way it takes her 8-10 months to get a specialist. It really is a case of the compassion of medicine hitting the burecrtic brick wall.
    I am in my 4th month of pursuing my MMAR license, I have finally had my specialist appt with a doctor who is FRCPC Runatoligest and Royal Colleges of Physicians Accredited. Not to make light of his stroke a few years back but this doctor was on more Meds that I could only dream about, I mean this guy was as
    high as a kite. The first hour of the Appt was discussing where my pain is and my med list, half the hour was taken up with lecturing me on how bad it is for me to
    be getting allergy shots every 2 weeks, the 2nd part of the hour was recommending that I stop using Celebrex and baclifen which are the 2 meds that are helping the swelling and back spasams,.the 2nd hour was the physical exam in which he twisted and turned me until I was in pain and in conclusion determined that all can be fixed by exercise, weight loss and quitting smoking, He did on the other hand diagnose me with Fibermyalga which my wife and I have suspected for years.
    All in all he gave me no real ideas or suggestions on how to manage pain like my pain specialist did. But at least I will have a report from a specialist that health Canada will accept. I should know within a month.
    Going into my 5th month I find the “Proposed Redesigned Program” Insane that I have spent 3 months looking for a specialist/specialist when the “Proposed Changes will eliminate A Specialist. So still after 4 months the only safe place I can medicate is my Bathroom, and even at that I am breaking the law.
    So in my 8th month and finely have my app in to Health Canada they had it for two weeks so
    I called to check on progress and I was told they will call in a few weeks, basically saying
    Don’t call us Will call you,” so here we sit”
    Nov 8th finally received my ATP certificate (Card) I put card in brackets because there is no Card any more, anyway Legal now for the next 10 months and do it all over again for renewal, I think Health Canada has issues with that to.

  9. Ivankov on

    Your exactly right. It was Matts teams job to prove its hard to get licensing through doctors and they failed to do it. Maybe he was too busy parading around acting like a rock star, instead of preparing for the trial and going over things with his lawyers. Things like finding people that can provide evidence they needed for the trial.

  10. Anonymous on

    you end that diatribe with peace………………hypocrite.

  11. Anonymous on

    This might be a stupid question, but don’t we have some kind of a right not to be subjected to arbitrary laws?

    Shouldn’t someone, somewhere have to show some kind of proof that our current laws aren’t just arbitrary. I might just be willingly blind or something, but I’m not aware of any valid evidence that pot causes harm.

    Just saying

  12. Anonymous on

    Agreed, maybe it just wasn’t a winnable case. One thing really bothers me though…..I though on appeal the courts weren’t supposed to revisit the facts and evidence – just review the case for the proper application of the law?

  13. Moots on

    I agree, same page.

    My issue is that the ruling does not mean that the courts aren’t for the people. Technically, they aren’t supposed to be “for the people” they aren’t “for” anyone. It simply shows that a judge felt the arguments and evidence brought forth did not prove Mernagh’s case/or the prior ruling was wrong.

    “The justice system is the mechanism that upholds the rule of law. Our courts provide a forum to resolve disputes and to test and enforce laws in a fair and rational manner. The courts are an impartial forum, and judges are free to apply the law without regard to the government’s wishes or the weight of public opinion. Court decisions are based on what the law says and what the evidence proves; there is no place in the courts for suspicion, bias or favouritism. This is why justice is often symbolized as a blindfolded figure balancing a set of scales, oblivious to anything that could detract from the pursuit of an outcome that is just and fair.”
    -Canadian Superior Court Judges Assoc.

    If the government won’t change the law, it means when we get our chances to fight it in the courts that we be exhaustive in our evidence.

  14. Anonymous on

    Actually I did……and if you don’t think a Charter violation isn’t about blowing up a law, respectfully you need to learn a tad more about law. Don’t forget we’re on the same page and that page is made of hemp!

  15. Anonymous on

    If you read the case carefully I think there is a strong suggestion that if you “wink wink” show the court(s) how the system doesn’t work better next time we may be on your side……just not today folks with your “puffeed friend”……

  16. Anonymous on

    The courts are deaf and blind to justice, that’s one thing for sure. The doctors are pimps for pharmaceutical companies. That’s why they won’t recommend marijuana–it’s competition for their corporate friends. Marijuana is SAFER than all the pharmaceuticals it competes with. The so-called clinical trials that “drugs” go through to get “approval” are rigged and biased, with researchers paid off by the pharma companies. So the doctors have failed, the courts have failed, and the Canadian people have failed. How? Because the Canadian people have gone too far to the Harper Reich. They should have voted Green and progressive, and gotten rid of the Alberta tar sands Mafia and other right-wing tools who now run Canada as a vassal of the USA. F the doctors and the courts. We will continue to grow, use and distribute the safest medicine known to humans!!!

  17. Moots on

    Obviously you didn’t actually read the ruling. This case was not about prohibition, nor ending it.

    Which is why Mernagh lost this case. So focused on ending prohibition that he forgot to make the actual case of Doctors boycotting.

    A court does not give a ruling based on what Canadians want, but on the evidence and arguments of the case.

    Blame Mernagh and his team, not the courts. They did their job, Mernagh did not.

    A lack of evidence is a lack of evidence. Judges can’t just say “Well we know Canadians want this, so despite a lack of evidence, I rule in favour of Mr Mernagh”

  18. Anonymous on

    Not upset about the ruling. Upset that pot is still illegal but the ruling seemed reasonable when this case is looked at individually.

    Much of it seems to be the fault of Mernagh and his team. If you are arguing that doctors are boycotting the program, patient witnesses with hard evidence documenting their difficulties might have been a good start. As the judge pointed out;

    “One had not even asked a physician to sign a declaration after the 2005 amendments to the MMAR and five others had only asked one physician to sign during that time period. Respectfully, these efforts fail to demonstrate a profession-wide “boycott” of the MMAR.”

    1 didn’t apply post 05 amendments? 5 only asked 1 physician? Getting one no and giving up hardly demonstrates a boycott.

    Mernagh’s journey seems to be riddled with similar issues. He didn’t consult a specialist when advised to do so, nor did he appear to apply for an exemption for nearly 3 years after

    He did apply for an exemption again in 2010 it seems. He relied on anecdotal evidence that showed he was not a recreational user, but not enough solid evidence that he qualify for an exemption.

    I’m sorry, but when seeking an exemption for a illegal substance (whether we agree with the law or not) having as much evidence to back you up as possible seems like a good idea.

    I’d also like to point out something that has been bothering me for a while now here. Mernagh mostly used this case as a way to go from patient to “Cannabis champion of the world”

    It’s hard to see someone as a suffering patient, when while waiting for a ruling he’s off gallivanting as a self proclaimed pot super star.

    Often it’s hard to tell if Mr Mernaugh is more concerned with helping patients across Canada or becoming a celebrity in the pot world. Take his “about me” description from his website.

    “Matt Mernagh a/k/a Mernahuana is the Cannabis Champion of the World. He won the title on Apr. 12, 2011 when the Ontario Superior court struck down Canada’s personal marijuana possession and production laws, decimated Health Canada’s medical marijuana program and granted him an exemption to produce his own personal supply. This victory against prohibition is known as The Mernagh Ruling or in legal speak R v. Mernagh.”

    I do not doubt Mernagh’s illnesses or suffering, but that statement says it all. A victory against prohibition. Not a victory for patients suffering across Canada.

    If this were about patients not prohibition maybe he wouldn’t have gone years without seeking an exemption, or saw that specialist when advised to do so.

    It shows a lack of credibility and hurts both the fight against prohibition and access for patients. Fighting prohibition through the medical system isn’t the way we need to do this.

    You know how a lot of Prohibition supporters often say that medical is a trojan horse for legalization when medical cases end up in courts?

    Well Mr Mernagh, congratulations you’re practically the poster boy for that argument.

    We can give patients open access through legalization, but we cannot win recreational access via medical rulings. It just won’t work.

    So hooray. A step back for Canadian patients. My heart goes out to you.

  19. Anonymous on

    I really thought this would be the end of prohibition, I really thought the courts were for the people, I really thought plants I chose would be OK to grow in my garden, I really thought our government cared about sick people……I really thought they cared about anybody, I really thought………………

  20. Anonymous on

    Right on Brother! MMAR could easily have worked if the government wanted it to. Instead MMAR is nothing more than a reasoned (but albeit evil) attempt to stop the Cannabis laws in Canada from being crushed by that evil Charter that actually considers people not the almighty dollar or conservative losers who want to control our lives?? I

    I’m convinced that we are indeed close to victory…..this case just wasn’t going to make the history books I’m afraid…..

  21. Anonymous on

    Right on Brother! MMAR could easily have worked if the government wanted it to. Instead MMAR is nothing more than a reasoned (but albeit evil) attempt to stop the Cannabis laws in Canada from being crushed by that evil Charter that actually considers people not the almighty dollar or conservative losers who want to control our lives?? I

    I’m convinced that we are indeed close to victory…..this case just wasn’t going to make the history books I’m afraid…..

  22. Anonymous on

    Unfortunately this decision may be difficult to overcome in future pot cases. Doherty has ruled in favour of medical marijuana cases in the past: Keep in mind, this decision for medical marijuana came even while Turmel was dancing around shouting “genocide” and making a joke of the cause.

    Anyways, move on; time to stop crying over spilled milk. Harper is making big changes to medical marijuana in Canada. Better to spend time considering the upcoming landscape. Doctors will soon be allowed to sell cannabis. He’s probably thinking that since they’re already nervous to prescribe, no one will ever sell, and there’s the end of the MMAR, as TECHNICALLY it fulfills the legal requirements.

    Advocacy should start to put pressure on the medical industrial complex to empower and embolden doctors to sell.

  23. Anonymous on

    There’s a difference between decoding, or being able to just read and pronounce technical jargon, and comprehension, which means understanding what we’re reading. Some lawyers have made constitutional challenges look easy because they’re good at explaining what went on in a case. However, to mount a case from scratch requires understanding the law. No simple task. Matt’s lawyer, not Matt himself, had the job of providing evidence for the arguments. That’s what lawyers go to law school for. To specialize in constitutional law, that’s even harder. Even some lawyers don’t understand there is no “right to” anything. Charter laws are negative laws. They’re only designed to stop the government from hurting too many people with their laws. It’s hard to prove, and if you don’t put the right legal word in the right argument, you’re screwed on a constitutional challenge. This case was first won pulling heartstrings of the judges. The legal arguments didn’t stand up. Read Hitzig. The arguments and evidence were good. The case wasn’t based on smoking a joint in front of tv cameras and vanity. A lot of lawyers study that case. But now the legal landscape has changed again. People need to work together, not on their own for their own glory. Doing the right thing is at times thankless.

  24. Anonymous on

    This is clearly a political ruling in the sense that every excuse the court could find to discount the evidence was taken. Just like the medical community does not want to deal with this hot potato issue neither do the courts. Surprising? Not really given that this ruling could have had far more implications than just medical marijuana but all illegal drugs. This court simply did not want to be one to tap on big governments shoulder and say “Hey you guys got it wrong”

    So any good news out of this? I say the we all know the governments MMAR rules don’t work and those who are ill should document all the failings of the system. The facts have a nasty way of getting in the way of the government’s policy and apparently the courts don’t like to make the master upset. Once more concrete failing are proven the government will simply have no choice but to legalize (or more likely decriminalize.

    Finally, this issue is far more reaching than medicine. The money hungry USA is full steam ahead on the marijuana industry and as usual Canada likes to think we are ahead of the curve when we are in fact way behind. People need to talk about this and spread the word (and forums Like CC are exactly what we need). Its only a matter of time my friends~

  25. Anonymous on

    Lets have a referendum on this put it to the god damn people what laws we want to live under!

    Its not the governments fault doctors wont sign? what a joke it was the government that formed the legislation that has the doctors acting like gatekeepers. Then the government uses intimidation tactics like they have with Dr. Kamermans and expect doctors to actually sign?…. Is it so hard for our government to pick up the phone and call the president of Portugal to see what he is doing that has actually lowered drug use while legalizing all drugs!!!…. So sick of living under these totalitarian laws “The True North Strong and FREE” yea what a load of shit that is.

  26. Anonymous on

    the glove was not payed for and supplied to the doctors by the government. the doctors have said in a survey that they wanted the trial work done before they would feel it was safe to recommend as a medicine. the government pulled the funding leading doctors to shy away as keepers. who would have thought that the unwillingness to do the trials that would prove it works and is safe and at what doses and under what delivery methods would result in a judge some day in the future to rule that the government (as opposed to doctors) have made the program illusory. this is what should happen next. the evidence is there the doctors wont sign for lack of info supplied by govt, the evidence is there the government pulled trial funding, and that there is no trial work being done, if the evidence of trials were complete, it would no longer be a non conventional drug. the court might not strike the program down entirely, but mernagh will be let go, and the court could order the govt do the trials, with a timeframe this time. mernagh was trialled in court, then mernagh ran his trials on medication. GW trials are not completed but vaporiser trials have been done in the USA that showed less tar, and these results were not given to doctors by health canada.