Pubdate: Sat, 02 Feb 2013 Source: Standard, The (St. Catharines, CN ON) Copyright: 2013 St. Catharines Standard Contact: http://www.stcatharinesstandard.ca/letters Website: http://www.stcatharinesstandard.ca/ Details: http://www.mapinc.org/media/676 Author: Karena Walter POT LAWS UPHELD A landmark ruling that could have paved the way for legalizing marijuana in the country was overturned by the Ontario Court of Appeal Friday. The Appeal Court found a lower court judge erred in an April 2011 decision that found Canada's medical marijuana laws were unconstitutional in a decision involving St. Catharines native Matthew Mernagh. Mernagh, who now lives in Toronto, argued he required medical marijuana to help ease symptoms of fibromyalgia, scoliosis and a seizure disorder. He was charged in April 2008 with producing marijuana after Niagara Regional Police police seized 70 pot plants from his St. Catharines apartment. Before his trial began, Mernagh's lawyer argued Canada's Marijuana Medical Access Regulations are unconstitutional in the way they're implemented because doctors are refusing to participate. In a April 2011 judgement, St. Catharines Superior Court Judge Donald Taliano agreed, finding Canada's medical marijuana program failed to give legal access to sick people who need the drug, largely because many family doctors refuse to endorse the required paperwork on behalf of patients. Taliano struck down Canada's laws against possessing and growing marijuana as part of the ruling and told Ottawa to overhaul the medical marijuana program or effectively legalize possession and production of pot. The judge also stayed the charges against Mernagh. The Court of Appeal said in its decision released Friday that the trial judge erred in finding medical exemptions are practically unavailable under the Marijuana Medical Act Regulations. "The evidence in this case fails to prove that the vast majority of physicians in Canada refuse to participate in the MMAR scheme," the decision said. It said the judge wrongly interpreted a previous court decision in finding people have a constitutional "right" to use medial marijuana. And it found the trial judge relied on anecdotal evidence to conclude Mernagh qualified for exemptions under the Marijuana Medical Act Regulations. The Court of Appeal has ordered a new trial. The Canadian HIV/AIDS Legal Network, which was an intervener in the trial, said it was disappointed by Friday's ruling. "People shouldn't have to risk going to prison in order to get the medicine they need," Executive Director Richard Elliott said in a press release. He said allowing current regulations to stand unchanged will leave many people with serious health conditions without effective access to legal use of cannabis. [sidebar] The Ontario Court of Appeal has dealt with medical marijuana constitutional issues three times in just over a decade: 1. R v. Parker, 2000 - The court ruled a blanket criminal prohibition on possession and cultivation of marijuana was unconstitutional because it didn't provide an exemption for people who used it for valid medical purposes. This lead to parliament's Marijuana Medical Access Regulations 2. Hitzig v. Canada, 2003 - The court struck down some aspects of the MMAR but upheld a requirement that physicians act as "gatekeepers" to determine who should receive an exemption from criminal liability for possessing or producing marijuana. 3. R. v. Mernagh, 2013 - The court the MMAR does not violate the charter of rights and freedoms as there was no evidence physicians were boycotting the scheme. - - Court of Appeal for Ontario, R. v. Mernagh - --- MAP posted-by: Jay Bergstrom