Pubdate: Fri, 01 Feb 2013
Source: Globe and Mail (Canada)
Copyright: 2013 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Kirk Makin
Referenced: R. v. Mernagh, 2013 ONCA 67:
http://www.ontariocourts.ca/decisions/2013/2013ONCA0067.htm

COURT UPHOLDS CANADA'S MEDICAL MARIJUANA LAWS

The Ontario Court of Appeal has upheld medical marijuana provisions
that require those with serious illnesses to obtain a physician's
approval before they can legally acquire cannabis to alleviate their
pain.

The 3-0 decision overturned a lower court decision that had earlier
struck down the laws as being impractical and difficult to comply with.

The appellate judges ruled that the case under appeal had failed to
establish that patients at the heart of the case were systematically
unable to obtain medical marijuana.

"In the absence of admissible evidence as to whether they qualified
for exemptions and the reasons for which their requests for
declarations were rejected, this court cannot accept that the
difficulties faced by these individuals render the entire Marijuana
Medical Access Regulations regime unconstitutional," it said.

The ruling was a major disappointment to civil libertarians and
advocates for HIV-AIDS patients, who had argued that it is virtually
impossible to obtain the medical approval the law demands.

"Allowing the current regulations to stand unchanged will leave many
people with serious health conditions without effective access to
legal authorization to use cannabis as medicine, and this means they
are exposed to the risk of criminal prosecution," said Richard
Elliott, Executive Director of the Canadian HIV/AIDS Legal Network.

"People shouldn't have to risk going to prison in order to get the
medicine they need," he said.

Medical marijuana has proved helpful in reducing appetite loss,
nausea, anxiety and depression associated with some medical conditions.

Created in 2001, the regulatory scheme was intended to help those who
need cannabis for medical purposes to avoid criminal prosecution for
production or possession of the drug.

The litigant at the centre of the case, Matthew Mernagh, was charged
in 2008 with producing marihuana illegally. At the outset of his
trial, he applied for a declaration that the law violated his
constitutional right to life, liberty and security.

Mr. Mernagh, who suffers from fibromyalgia, scoliosis, epilepsy and
depression, claimed that he was unable to obtain a medical marijuana
exemption because no physician was willing to sign his medical
declaration.

His lawyer also argued that doctors have refused en masse to
co-operate with the medical marijuana regime.

However, the court majority concluded today that Mr. Mernagh and
several interveners in the case were unable to prove that access to
the medical exemption scheme was illusory.

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

Mr. Elliott criticized the medical regime for leaving many of those
afflicted with serious illness in limbo.

"In practice, the requirements of the regulations are often
unworkable, meaning people suffering with serious health conditions
are unable to overcome the hurdles currently in place," he said in a
release. "As a result, they are treated as criminals under the
Controlled Drugs and Substances Act , which makes it a crime to
produce or possess cannabis without authorization."
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MAP posted-by: Jo-D