Pubdate: Sat, 02 Feb 2013
Source: Standard, The (St. Catharines, CN ON)
Copyright: 2013 St. Catharines Standard
Author: Karena Walter


A landmark ruling that could have paved the way for legalizing 
marijuana in the country was overturned by the Ontario Court of Appeal Friday.

The Appeal Court found a lower court judge erred in an April 2011 
decision that found Canada's medical marijuana laws were 
unconstitutional in a decision involving St. Catharines native Matthew Mernagh.

Mernagh, who now lives in Toronto, argued he required medical 
marijuana to help ease symptoms of fibromyalgia, scoliosis and a 
seizure disorder.

He was charged in April 2008 with producing marijuana after Niagara 
Regional Police police seized 70 pot plants from his St. Catharines apartment.

Before his trial began, Mernagh's lawyer argued Canada's Marijuana 
Medical Access Regulations are unconstitutional in the way they're 
implemented because doctors are refusing to participate.

In a April 2011 judgement, St. Catharines Superior Court Judge Donald 
Taliano agreed, finding Canada's medical marijuana program failed to 
give legal access to sick people who need the drug, largely because 
many family doctors refuse to endorse the required paperwork on 
behalf of patients.

Taliano struck down Canada's laws against possessing and growing 
marijuana as part of the ruling and told Ottawa to overhaul the 
medical marijuana program or effectively legalize possession and 
production of pot.

The judge also stayed the charges against Mernagh.

The Court of Appeal said in its decision released Friday that the 
trial judge erred in finding medical exemptions are practically 
unavailable under the Marijuana Medical Act Regulations.

"The evidence in this case fails to prove that the vast majority of 
physicians in Canada refuse to participate in the MMAR scheme," the 
decision said.

It said the judge wrongly interpreted a previous court decision in 
finding people have a constitutional "right" to use medial marijuana.

And it found the trial judge relied on anecdotal evidence to conclude 
Mernagh qualified for exemptions under the Marijuana Medical Act Regulations.

The Court of Appeal has ordered a new trial.

The Canadian HIV/AIDS Legal Network, which was an intervener in the 
trial, said it was disappointed by Friday's ruling.

"People shouldn't have to risk going to prison in order to get the 
medicine they need," Executive Director Richard Elliott said in a 
press release.

He said allowing current regulations to stand unchanged will leave 
many people with serious health conditions without effective access 
to legal use of cannabis.


The Ontario Court of Appeal has dealt with medical marijuana 
constitutional issues three times in just over a decade:

1. R v. Parker, 2000 - The court ruled a blanket criminal prohibition 
on possession and cultivation of marijuana was unconstitutional 
because it didn't provide an exemption for people who used it for 
valid medical purposes. This lead to parliament's Marijuana Medical 
Access Regulations

2. Hitzig v. Canada, 2003 - The court struck down some aspects of the 
MMAR but upheld a requirement that physicians act as "gatekeepers" to 
determine who should receive an exemption from criminal liability for 
possessing or producing marijuana.

3. R. v. Mernagh, 2013 - The court the MMAR does not violate the 
charter of rights and freedoms as there was no evidence physicians 
were boycotting the scheme.

- - Court of Appeal for Ontario, R. v. Mernagh
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