Today in R v. Mernagh the Ontario Superior Court of Justice found the entire regulatory scheme governing medical marijuana (the Marihuana Medical Access Regulations) to be invalid. As a result sections 4 (prohibiting possession) and 7 (prohibiting production) of the Controlled Drugs and Substances Act were stricken. The government has been given 90 days to fill the legislative void or it will become legal to possess and produce marijuana.
The basis for the decision was that the government’s controversial decision making allopathic physicians the only gatekeepers to patient access created a scheme that was too restrictive and made it too difficult for Canadians to lawfully acquire the medicine. In the Court’s words “…it is long past time for the government to provide the medical access to marihuana that was directed by the Parker court over ten years ago…” Parker was a 2000 decision of the Ontario Court of Appeal that gave rise to the MMAR scheme.
“Complaints about the doctor-as-gatekeeper role, from patients and physicians, have been a constant feature of this flawed system,” said Kirk Tousaw, the Foundation’s Executive Director and a BC lawyer that successfully argued R v. Beren, in which the BC Supreme Court found certain supply-side aspects of the scheme to violate the Charter. “This decision represents a huge step forward for critically and chronically ill Canadians that want to access this safe and effective medicine without being turned into criminals for doing so.”
Jacob Hunter, the Foundation’s Policy Director and an authorized medical cannabis consumer, also hailed the decision: “I know how hard it has been to find a supportive physician. There are a million medical cannabis consumers in Canada and, in ten years, less than 10,000 have been able to become legal. That just isn’t right.”
The Foundation urges the upcoming new government of Canada to work with patients, producers and distributors of medical cannabis over the next 90 days to craft a legislative model that works. “Who knows,” speculated Tousaw, “the government could always choose not to re-legislate, as did with the abortions laws after the Morgentaler decision, and finally put an end to the harms being caused by marijuana prohibition. ”
The Foundation congratulates Mr. Mernagh and counsel Paul Lewin for their outstanding efforts and salutes all those that assisted in the case.