Pubdate: Thu, 07 Feb 2013
Source: View Magazine (Hamilton, CN ON)
Copyright: 2013 View Magazine
Contact:  http://www.viewmag.com/
Details: http://www.mapinc.org/media/2393
Author: Willy Noiles

MEDICAL POT ROLLER COASTER

The legal roller coaster that chronic pain patients like Toronto 
resident Matthew Mernagh have been riding for the last four years has 
just come down from the apex but is trying to build up steam to climb 
the next hill. The Ontario Court of Appeal overturned a Superior 
Court ruling from 2011 that had tried to strike down the country's 
medicinal marijuana laws.

The ruling was a setback for Mernagh and others who have been 
following his case. The Canadian HIV/AIDS Legal Network and HIV & 
AIDS Legal Clinic Ontario, who were interveners in R. v. Mernagh, 
said the decision was a disappointing missed opportunity. "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," Canadian HIV/AIDS Legal 
Network Executive Director Richard Elliott said in a statement. 
"People have to risk going to prison in order to get the medicine they need."

This is a setback, but not the end for Mernagh, though. In an 
interview with Pot TV, he said the next stop is the Supreme Court, 
where he and his lawyers felt the case was headed from the start. 
"This is absolutely appealable. We will seek leave to appeal." 
Mernagh has been riding this roller coaster since being charged by 
Niagara Regional Police with producing marijuana in his apartment 
back in April 2008. Unable to find a doctor to support his 
application for a medicinal marijuana license, Mernagh took to 
growing his own. Mernagh suffers from fibromyalgia, scoliosis, 
seizures and depression and has found marijuana provides the best relief.

Three years later, in an April 11, 2011 ruling, Justice Donald 
Taliano ruled the federal medical marijuana program is 
unconstitutional because, he said, doctors across the country have 
"massively boycotted" the program and largely refuse to sign off on 
forms giving sick people access to necessary medication. With the 
help of lawyer Paul Lewen, Mernagh rounded up 21 patients from across 
the country to testify in the case. One Alberta patient had been 
refused by 26 doctors while another in Vancouver had approached 37 
physicians without finding a single one to sign the form. The 
patients also reported lengthy delays-as long as nine months-to have 
their applications processed by Health Canada.

"The body of evidence from Mr. Mernagh and the other patient 
witnesses is troubling," Taliano wrote in that decision. "The 
evidence of the patient witnesses, which I accept, showed that 
patients have to go to extraordinary lengths to acquire the marijuana 
they need." He wrote that doctors essentially act as gatekeepers to 
the medicinal marijuana program but lack the necessary knowledge to 
given advice or recommend the drug. He also found Health Canada has 
made "no real attempt to deal with this lack of knowledge."

One witness Mernagh's team lacked, though, was a doctor. Something 
the Court of Appeal took exception to. The Appeal Court found Taliano 
was wrong to interpret an earlier ruling as creating a constitutional 
right to use medical marijuana. "Given that marijuana can medically 
benefit some individuals, a blanket criminal prohibition on its use 
is unconstitutional," the Appeal Court ruling stated. "(However), 
this court did not hold that serious illness gives rise to an 
automatic right to use marijuana."

Mernagh said, "It's shocking in that they bought the argument that 
the federal government came and fed them." He acknowledged his legal 
team knew the fact they were unable to find a physician to testify 
might hurt them. But it wasn't for a lack of trying, he said. "They 
didn't see it as being in the best interests, shall we say."

That, in itself, should come as no surprise to many who have followed 
various rulings around this program since former Liberal Health 
Minister Allan Rock launched it in August 2001. This was the third 
time the Appeal Court reviewed the medical marijuana program. The 
Canadian Medical Association has been wary of the program from the 
start. "Physicians must not be expected to act as gatekeepers to this 
therapy, yet this is precisely the role Health Canada has thrust upon 
them," a May 7, 2001 CMA later stated.

Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario, 
said in theory the program should make it possible for people in need 
of cannabis for medical purposes to get a license to produce or 
possess the drug. But the reality has proven to be different. In 
practice, he stated, the requirements of the regulations are often 
unworkable, meaning people suffering with serious health conditions 
are unable to overcome the hurdles currently in place. The current 
regulations require a physician to provide a medical declaration to 
accompany a person's application for a license. But as Mernagh and 
many others found, properly informed doctors or ones willing to 
fairly consider a patient's request are few. In addition, the 
regulations do not require a doctor to provide any reason for 
rejecting a patient's request. "The current regulations set up 
physicians as gatekeepers," Peck said, echoing Taliano's earlier 
ruling. "A doctor's decisions about whether a pat! ient should get a 
license exempting him or her from criminal liability for medical use 
of cannabis effectively determine whether or not the person faces 
possible criminal prosecution. But the current scheme is arbitrary and unfair."

Dr. Ann Pollett, a Toronto-area doctor, spoke about the doctor's side 
in a lecture in St. Catharines two years ago. Pollett said many 
doctors are indeed worried about signing the forms because they fear 
reprisals. She had said she would sign the declaration, but only 
after exhausting all other pharmaceutical options. Doing this helped 
to bolster the case, but prevented blowback from the CMA and others, 
she'd stated.

In December, federal Health Minister Leona Aglukkaq announced Ottawa 
would no longer grant medical marijuana licenses to users, and only 
doctors would be able to prescribe pot. But the HIV groups say this 
still won't address the problem faced by Mernagh and others because 
it doesn't ensure access to a medical decision-maker who can, if 
warranted, provide the medical documentation. "The underlying problem 
is that the federal government maintains an overall prohibition on 
possession of cannabis for personal use," Elliott said. 
"Decriminalizing possession of cannabis for personal use, as has been 
repeatedly recommended over decades, would solve this problem. But if 
the government won't do this, then it has an obligation to ensure 
that the threat of criminal prosecution doesn't impede access for 
medical purposes."

Elliott added Aglukkaq's proposed regulations seek to limit further 
any involvement in ensuring access for medical purposes. "It's not 
good enough to criminalize cannabis, set up a faulty system for 
people seeking exemptions from criminal liability to use cannabis as 
medicine, and then try to avoid any responsibility for the barriers 
created by that system."

Osgoode law professor Alan Young, a longtime advocate of legal 
marijuana, said the Appeal Court decision shouldn't be seen as an 
endorsement of the federal program. "They simply didn't feel the 
evidence was sufficient. The case is important to show people that 
the program is still failing."

For Mernagh, who has never disputed the crime, the fight continues. 
He noted the Supreme Court has never ruled on the medical marijuana 
program. "I'm not cooked yet."
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