Ontario court strikes down Canada’s pot laws
An Ontario court has struck down Canada’s laws against possessing and growing cannabis as part of a ruling that found the country’s medicinal marijuana program is failing to provide access to the drug for those who need it.
Smoking up, however, is not legal just yet: the federal government has three months to launch an appeal or change its regulations to fix the problems identified by the court.
Mr. Justice Donald Taliano of the Ontario Superior Court struck down the Marihuana Medical Access Regulations, arguing they aren’t doing enough to ensure patients can obtain the necessary approvals to use the drug. Simultaneously, he ruled two sections of the Controlled Drugs and Substances Act – those that prohibit simple possession and cultivating marijuana – are unconstitutional, since they can be used to criminally charge medicinal users who haven’t been able to obtain such approval.
The ruling means the government must either improve its system for licensing medicinal marijuana patients within 90 days, or it will become legal to use or grow the drug for any purpose. The government can, however, buy itself more time by appealing the ruling.
The government office handling the case could not be immediately reached for comment on what it planned to do.
The ruling is not the first time the courts have come to the assistance of those who use cannabis to alleviate their illnesses. A 2000 Ontario Court of Appeal ruling compelled the government to create the medicinal marijuana program or have its prohibitions against cannabis thrown out altogether. Other court rulings have pointed to specific problems with the medicinal marijuana rules.
This, however, is the first time a court has thrown the whole thing out, said Jacob Hunter, policy director with the Vancouver-based Beyond Prohibition Foundation. Even though the current ruling applies only to Ontario, he said it would have ramifications across the country.
“We know historically that decisions in Ontario have had an effect nationally, especially on this issue,” said Mr. Hunter, who is also a licensed medicinal marijuana user.
The court decision hinged on the difficulty medicinal users have in finding a doctor willing to sign the necessary paperwork. The problem, Judge Taliano ruled, is that the government requires patients to obtain the approval of a doctor to take marijuana legally but does not give physicians adequate training or fund sufficient clinical trials of the drug. As a result, much of the medical community refuses to approve its use.
“Rather than promote health – the regulations have the opposite effect. Rather than promote effective drug control – the regulations drive the critically ill to the black market,” he wrote. “Surely, the right to choose belongs to the patient, not to government that has failed to create the environment for better research into the drug’s effectiveness and harmful qualities.”
The case was brought forward by Matthew Mernagh, a 37-year-old man from St. Catharines, Ont., who couldn’t find a doctor to approve his use of marijuana to relieve the symptoms of several illnesses, including fibromyalgia and scoliosis. He was charged with cultivating his own cannabis, charges that were also staid by Judge Taliano.
Several other medicinal users of the drug testified they faced similar problems, and that Health Canada would take months to process their applications.
Judge Taliano agreed with Mr. Mernagh’s argument that criminally charging patients who had to resort to illegally buying cannabis amounted to a violation of their Charter right to liberty.
Proponents of medicinal marijuana have long argued that Health Canada’s system is flawed and that the roughly 10,000 people approved to use the drug represent only a tiny fraction of those who should qualify for the program.
“For the last nine years, patients have been complaining about the ineffectiveness of the medicinal marijuana program,” said Ron Marzel, a Toronto lawyer who has represented medicinal marijuana clients. “This judge finally accepted those concerns.”
A day after an Ontario court stayed charges of growing and possessing marijuana against him, Matthew Mernagh wasted no time exercising his newly acquired freedom to consume medicinal cannabis, setting some seeds germinating in a paper towel and paying a visit to Vapour Central in downtown Toronto.
The same ruling that granted Mr. Mernagh, who suffers from seizures and fibromyalgia, the right to use the drug to manage his symptoms also struck down the government’s medicinal marijuana program – arguing it was too difficult for patients to obtain the necessary licence to use cannabis legally – and ruled the country’s laws against possessing and growing the drug unconstitutional.
“It’s unbelievable. It feels like we won the Stanley Cup and brought it home,” said Mr. Mernagh, 37, as he celebrated with supporters. “We’re all just sitting here, awestruck.”
But while he was free to partake immediately, the rest of the ruling will not come into effect for three months, leaving other medicinal users without licences to wait and see whether the government would appeal the ruling or re-tool the program.
Previous court decisions on the subject have either faced appeal or forced the government to change the law to help medicinal users obtain cannabis.
On Wednesday, civil servants refused to tip their hands as to which path they would follow this time. Political parties vying for power, however, suggested they were open to rewriting the rules.
The Public Prosecution Service, which must decide whether to appeal the case, declined to comment on what it would do. A spokeswoman for Health Canada said it was too soon to say what would happen.
The Conservatives, meanwhile, said plans to overhaul the Marihuana Medical Access Regulations were already being worked out.
“We are disappointed with this decision,” wrote Tim Vail, a spokesman for Tory Health Minister Leona Aglukkaq, in an e-mail. “We are currently considering longer-term measures to reform the medical access program and its regulations.”
Mr. Vail refused to specify what those measures are.
The Liberals issued a similar response, reiterating their opposition to legalizing the drug, but leaving the door open to decriminalizing possession of small amounts and revisiting the regulations for medicinal users.
“We need to study the decision in more detail,” said party spokesman Michael O’Shaughnessy. “In government, we would work with the Department of Justice and Health Canada to see what could be done to ensure the system works efficiently for Canadians in need of this treatment.”
The NDP campaign could not be reached for comment.
Mr. Mernagh’s lawyer, meanwhile, said he expected the government would appeal, which would mean the ruling would not come into effect until after the case was decided in a higher court. In the meantime, however, the current decision could help people facing similar charges in Ontario by setting a legal precedent they could raise in their own cases.
“Anyone currently facing growing or possession charges can say ‘I am being charged under a law that’s been found to be unconstitutional,’” said Paul Lewin.
One of those people is Robert Neron, a resident of a small northern town near Kapuskasing. He has been licensed to use marijuana to relieve his cervical dystonia for more than a decade, but says Health Canada has taken more than seven months to process his application to renew his licence and, while waiting on the renewal, police seized his plants and charged him. He is due in court next week.
“I hope all my charges will be dropped – [the Mernagh decision] will have an impact on my case,” he said. “This court just reaffirmed what we’ve been fighting for all these years.”
Mr. Mernagh, for his part, said he was ready to continue the legal battle to make sure he and other medicinal users can get their pot. Marijuana is the only drug that’s helped control his pain while still allowing him to function, he said.
“This is my medicine of choice and I wouldn’t know what to do without it,” he said.