Pubdate: Fri, 04 May 2012
Source: Lawyers Weekly, The (Canada)
Copyright: 2012 LexisNexis Canada Inc.
Contact:  http://www.lawyersweekly.ca/
Details: http://www.mapinc.org/media/4556
Author: Megan O'Toole

CANNABIS RULES CHALLENGED

Federal Government Seeking To Uphold MMAR Provisions

Ontario's top court is hearing an appeal of a ruling that struck down
key provisions of the law governing access to marijuana for medical
use.

In asking that the decision be set aside, the federal government will
rely on what it argues is a series of "palpable and overriding errors"
by Superior Court Justice Donald Taliano, who last year stayed a
production charge against Toronto marijuana activist Matthew Mernagh.

The appeal, scheduled to begin on May 7, is the latest legal battle
over the federal government's medical marijuana scheme, aspects of
which have been ruled unconstitutional by courts a number of times
over the past decade. The Canadian Civil Liberties Association, the
B.C. Civil Liberties Association and a coalition of groups
representing people who are HIV-positive have been granted intervener
status by the Court of Appeal in R v. Mernagh.

In his decision, Justice Taliano accepted Mernagh's contention that
the federal Marihuana Medical Access Regulations (MMAR) made it too
difficult for patients in need to access the drug. The Superior Court
judge simultaneously struck down the regulations and the associated
prohibitions against marijuana production and possession in the
Controlled Drugs and Substances Act-although the declaration of
invalidity has been put on hold, while the case is before the Court of
Appeal.

"The combined effect of the CDSA and the MMAR is to make sick people
sicker," said Toronto lawyer Paul Lewin, who represents Mernagh.

The federal Crown meanwhile, is arguing that the findings of Justice
Taliano lacked an evidentiary foundation. "He relied on inadmissible
evidence, misapprehended the legal effect of amendments that were made
to the MMAR, substituted his own opinions for those of the treating
physicians, and engaged in speculation," says Crown attorney Croft
Michaelson, in written arguments filed with the court.

"There was simply no basis to conclude that medical practitioners in
Canada had acted in any manner other than the best interests of their
patient," he adds.

The MMAR requires applicants to obtain a signed declaration from a
doctor, before they can receive government authorization for medical
use.

After a constitutional challenge to the scheme in 2003, certain
conditions in the MMAR were relaxed so that doctors were no longer
required to recommend a daily dosage of marijuana for patients or
indicate that the benefits of such a treatment outweighed the risks.

But Mernagh - ​who uses marijuana to treat his
symptoms from fibromyalgia, scoliosis and seizures - ​argued
in court that the revised regulations remain illusory, saying he has
been unable to find any doctor willing to sign a medical marijuana
declaration. He was therefore precluded from accessing the drug
legally, Mernagh argues.

Justice Taliano noted: "The physicians of Canada have massively
boycotted the MMAR and their overwhelming refusal to participate in
the medicinal marihuana program completely undermines the
effectiveness of the program."

The Crown says the judge erred on a number of fronts, citing no
evidence of a "massive boycott." It stated that between 1998 and 2010,
the annual number of doctors who signed medical marijuana declarations
rose to more than 2,000 from fewer than 10.

The judge's suggestion that physicians were failing to meet the
legitimate demands for medical marijuana was additionally problematic,
Michaelson wrote, because there was no evidence adduced at trial to
determine how many Canadians had a valid medical need for the drug.

"The Charter does not mandate that physicians rubber-stamp their
patients' treatment preferences," the factum states, noting that the
only way to ensure marijuana is restricted to those with valid medical
needs, is to require a doctor's declaration.

Lewin disagrees. He suggested the current regulatory framework simply
encourages "doctor-shopping" among desperate patients.

"The doctors made it abundantly clear they are not knowledgeable with
this unapproved plant therapy," said Lewin. "They're not comfortable
dealing with the potential legal repercussions."

"The doctor-as-gatekeeper idea has been a bad fit from day one...and
from day one the government has denied there was a problem," Lewin's
responding factum states, noting some doctors became "hostile" or
discontinued treatment when patients requested a marijuana
declaration.

There are other ways to regulate marijuana use, such as creating a
registry of doctors educated about marijuana where patients can turn
for a prescription, Lewin suggested. 
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