Pubdate: Tue, 08 May 2012
Source: National Post (Canada)
Copyright: 2012 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Megan O'Toole

POT RULING 'EXTRAVAGANT,' CROWN CONTENDS

Medical Marijuana

Challenge Argues Regulations Are an Unfair Barrier

The Crown on Monday urged Ontario's Court of Appeal to overturn a 
controversial ruling that struck down the federal legislation 
governing access to medical marijuana.

The case centres on Toronto marijuana activist Matthew Mernagh, who 
uses the drug to treat his symptoms from fibromyalgia, scoliosis and 
seizures. Facing a charge of illegal marijuana production, Mr. 
Mernagh launched a constitutional challenge last year, arguing that 
the federal Marihuana Medical Access Regulations (MMAR) constitute an 
unfair barrier for sick people.

The trial judge agreed, striking down both the MMAR and related 
sections of the Controlled Drugs and Substances Act - a ruling that 
is on hold pending the federal government's appeal.

"[Those findings were] extravagant and wholly unsupported by the 
record," Crown attorney Croft Michaelson told the Appeal Court 
Monday, suggesting Superior Court Justice Donald Taliano erred in 
concluding that Canadian doctors have engaged in a "massive boycott" 
of the medical marijuana program.

Vyou cannot say on this record that the majority of physicians in 
Canada are opposed to the MMAR.... It's mere speculation," Mr. Michaelson said.

The MMAR require any patient seeking access to medical marijuana to 
obtain a signed declaration from a doctor. During his trial, Mr. 
Mernagh brought forward about two dozen seriously ill witnesses who 
said they encountered major difficulties in finding a doctor who 
would sign a declaration, prompting Judge Taliano to cite an 
"overwhelming refusal" by Canadian physicians to participate in the scheme.

Mr. Michaelson contended that finding was groundless, noting between 
1998 and 2010, the number of doctors signing declarations each year 
rose to more than 2,000 from fewer than 10. No evidence was adduced 
at trial, however, to indicate how many Canadian residents with valid 
medical needs requested and were denied a medical marijuana prescription.

Mr. Michaelson said the trial judge made numerous errors by relying 
on inadmissible evidence, misapprehending the legal effect of 
previous amendments to the MMAR and having improper regard for the 
opinions of treating physicians.

"The trial judge essentially substituted his opinion for the opinions 
of the doctors," Mr. Michaelson contended.

Lawyer Paul Lewin, who represents Mr. Mernagh, said the trial judge 
got it right, calling the case an issue of fundamental liberty.

"When you're really sick, you should be able to decide if [marijuana] 
is what you want," Mr. Lewin told the court, noting many patients are 
forced to go doctor-shopping in order to find one willing to sign a 
declaration. He called for an overhaul of the MMAR, possibly by 
creating a registry of physicians educated about the potential 
benefits and drawbacks of marijuana.

A large number of Mr. Mernagh's supporters turned out for Monday's 
hearing, one hoisting a Canadian flag emblazoned with a cannabis leaf 
in place of the traditional maple.

The case has resonated with many people who obtain relief from the 
drug, Mr. Mernagh asserted.

"They find it helps them. They can wake up in the morning and 
continue," he said outside court, noting the hearing was about more 
than his own personal interest in avoiding a production conviction.

"We need [the medical marijuana] program to be working. This program 
needs to change," Mr. Mernagh said. "It needs to be accessible to Canadians."

The Appeal Court is expected to reserve ruling after the hearing 
wraps up Tuesday.
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MAP posted-by: Jay Bergstrom