Pubdate: Wed, 13 Apr 2011
Source: Toronto Star (CN ON)
Copyright: 2011 The Toronto Star
Author: Jennifer Yang
Referenced: The Decision
Bookmark: (Cannabis - Canada)


An Ontario Superior Court judge has ruled that the federal medical
marijuana program is unconstitutional, giving the government three
months to fix the problem before pot is effectively legalized.

In an April 11 ruling, Justice Donald Taliano found that doctors
across the country have "massively boycotted" the medical marijuana
program and largely refuse to sign off on forms giving sick people
access to necessary medication.

As a result, legitimately sick people cannot access medical marijuana
through appropriate means and must resort to illegal actions.

Doctors' "overwhelming refusal to participate in the medicinal
marijuana program completely undermines the effectiveness of the
program," the judge wrote in his ruling.

"The effect of this blind delegation is that seriously ill people who
need marijuana to treat their symptoms are branded criminals simply
because they are unable to overcome the barriers to legal access put
in place by the legislative scheme."

Taliano declared the program to be invalid, as well as the criminal
laws prohibiting possession and production of cannabis. He suspended
his ruling for three months, giving Ottawa until mid-July to fix the
program or face the prospect of effectively legalizing possession and
production of cannabis.

The judge's decision comes in a criminal case involving Matthew
Mernagh, 37, of St. Catharines who suffers from fibromyalgia,
scoliosis, seizures and depression.

Marijuana is the most effective treatment of Mernagh's pain. But
despite years of effort, he has been unable to find a doctor to
support his application for a medical marijuana licence.

Mernagh resorted to growing his own cannabis and was charged with
producing the drug.

Taliano found doctors essentially act as gatekeepers to the medical
marijuana program but lack the necessary knowledge to adequately give
advice or recommend the drug. He also found that Health Canada has
made "no real attempt to deal with this lack of knowledge."

Taliano said the issue is Canada-wide.

Twenty-one patients from across the country testified in the case,
saying they were rejected by doctors a total of 113 times.

One Alberta patient was refused by 26 doctors; another in Vancouver
approached 37 physicians without finding a single one to sign off on
the form.

Patients also face lengthy delays - as long as nine months - in having
their medical marijuana applications processed by Health Canada.

"The body of evidence from Mr. Mernagh and the other patient witnesses
is troubling," Taliano wrote. "The evidence of the patient witnesses,
which I accept, showed that patients have to go to extraordinary
lengths to acquire the marijuana they need."

Lawyer Alan Young, a longtime advocate of marijuana legalization, said
the ruling is a step in the right direction.

"It's significant because it's a Superior Court ruling which has
binding effect across the province," Young said.

"By enacting a dysfunctional medical program the government now has to
pay the high cost of losing the constitutional authority to
criminalize marijuana."

He said the real test, however, will be whether the judgment stands up
in the Ontario Court of Appeal.

"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."

The medical profession has been wary of the medical marijuana program
since it came into effect in August 2001.

On May 7, 2001, the Canadian Medical Association wrote a letter to the
federal health minister expressing concerns with recommending a drug
that has had little scientific evidence to support its medicinal benefits.

"Physicians must not be expected to act as gatekeepers to this
therapy, yet this is precisely the role Health Canada had thrust upon
them," the letter stated.  
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