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