Ontario Court Strikes Down Canada’s Marijuana Laws

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Photo: Matt Mernagh
The case was brought by prominent Canadian cannabis activist, patient and writer Matt Mernagh, above, a contributor to Toke of the Town.

An Ontario court has struck down Canada’s marijuana laws. The court struck down laws against possessing and growing cannabis as part of a ruling that found the country’s medical marijuana program is failing to provide access to the herb for patients who need it.

BUT. (And don’t you hate this?) That doesn’t mean smoking pot is legal yet, reports Adrian Morrow at The Globe and Mail. The federal government now has three months to launch an appeal or change its regulations to fix the problems identified by the court.
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 permission to use cannabis.


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Photo: Matt Mernagh
Matt Mernagh won a big one Tuesday in Ontario.

​He also ruled that 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 cannabis users who haven’t been able to obtain government approval.
The ruling means the government must either improve its system for licensing medical marijuana patients with 90 days, or it will become legal to use or grow cannabis for any purpose. The government can, unfortunately, buy itself more time by appealing the ruling.
This ruling is not the first time the Canadian courts have come to the aid of medical marijuana patients. A ruling in 2000 by the Ontario Court of Appeal ordered the government to create the medical marijuana program or have its prohibitions against cannabis thrown out completely. Other court rulings have pointed to specific problems with the medicinal cannabis rules.
This, however, is the first time a court has thrown the whole marijuana law out, according to Jacob Hunter, policy director with the Beyond Prohibition Foundation, based in Vancouver. Even though the ruling only applies to Ontario, Hunter said it would have effects across Canada.
“We know historically that decisions in Ontario have had an effect nationally, especially on this issue,” Hunter said.
The court’s decision related to the difficulty medical marijuana patients have in finding a doctor willing to sign the necessary paperwork. The problem, Judge Taliano ruled, is that the government requires patients to get the permission of a doctor to use marijuana legally, but does not give physicians adequate training or fund enough clinical trials of pot.
As a result, much of the medical community refuses to approve its use.
“Rather than promote health — the regulations have the opposite effect,” the judge wrote. “Rather than promote effective drug control — the regulations drive the critically ill to the black market. 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 by my friend and Toke of the Town contributor Matthew Mernagh, a 37-year-old man from St. Catharines, Ontario, who couldn’t find a doctor willing to approve his medicinal use of cannabis to relieve symptoms of several illnesses, including fibromyalgia and scoliosis. Mernagh was charged with growing his own cannabis, charges that were dismissed by Judge Taliano.
Several other medical marijuana patients testified they faced similar problems, and that Health Canada would take months to process their applications.
Judge Taliano agreed with Mernagh’s argument that criminally charging patients who had to resort to illegally buying cannabis was a violation of their Charter right to liberty.
Medical marijuana advocates have long argued that Health Canada’s system is flawed and that the 10,000 or so people who are approved to use cannabis are only a tiny fraction of those who could benefit from 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 medical marijuana clients. “This judge finally accepted those concerns.”
“I think it represents a dramatic step forward for critically and chronically ill Canadians,” B.C. lawyer Kirk Tousaw said Tuesday night, reports Sarah Boesveld at Postmedia News. “It is undoubtedly going to progress through the court system … but it’s gratifying to see a court has accepted what so many thousand medical marijuana patients have been saying for years — that it’s incredibly difficult if not impossible to access medical marijuana.”
“I would argue that if marijuana is legal in Ontario, you can’t realistically have it illegal in the rest of the country,” Tousaw said.
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