Opponents of laws criminalizing marijuana use received a seemingly great piece of news this week. A ruling by theÂ Ontario Superior Court declared unconstitutional provisions of the Controlled Drug and Substance ActÂ that prohibitÂ the possessionÂ and production of marijuana. Â A closer look at the court’s reasoning, however,Â gives limited basis for hope thatÂ Canada’s judicial branch of governmentÂ will eventually force a decriminalization or legalization of cannabis.
The case, R v. Mernagh, is centered around the plight of Matthew Mernagh, a 37 year old man who lives in constant painÂ as a result ofÂ fibromyalgia, scoliosis, seizures, and depression. As the medicine that doctors prescribedÂ failed to ameliorate his condition, Mr. Mernagh tried marijuana and found that it significantly alleviated his symptoms.
Since 2001, individuals have been permitted a medical exemption from the prohibition on marijuana. To legally obtain itÂ for medical purposes, a person has to get a doctor,Â usually a specialist, to declare that marijuana is an appropriate treatment. Mr. Mernagh appealed to this exemption, but could find no doctor willing toÂ approve his request.
Many doctors are unwilling to provide the necessaryÂ declaration because the treatment has not been adequately tested in medical trials. Doctors also fear incurring liability in the event a patient’s condition seriously worsens after cannabis use.
This is why the Ontario Superior Court struck downÂ theÂ ban on marijuana possession and production.Â Thanks to a 2000 Ontario Court of Appeals decision, a blanket prohibition had already been deemed a violation of the Charter’s Section 7Â guarantee ofÂ the right to life, liberty, and security of the person. In that ruling, known as the Parker case, it was deemed that the marijuana ban could only pass constitutional muster if a medical exception was granted. As it now turns out that the frameworkÂ which the federal government subsequentlyÂ instituted fails to deliver marijuana to those who medically require it, the Ontario Superior Court ordered the government back to the drawing board. It’s been given three months to come up with a better medical exemption process.
Now let’s assume the government doesn’t appeal or, that even if it does, higher courts upholdÂ the ruling. Still, the only way this canÂ ultimatelyÂ lead to the legalization or decriminizalationÂ of marijuana is if the government fails toÂ implement a workable regime for the medical use of cannabis.Â
The government,Â no matter who happens to beÂ in power, will certainly do their best to try. The Ontario Superior Court has even been so kind as to offer a few suggestions: allowing practitioners of alternative medicine to give declarations and the creation of a public registry of doctors willing to provide them. Â
This will not be like theÂ Morgentaler case. There, the Supreme CourtÂ threw out Canada’s abortion laws on the grounds that the existing legislation allowingÂ the procedureÂ underÂ hospital approvalÂ did not provide women adequateÂ access to medicallyÂ necessary care, asÂ mandated by Section 7 of the Charter.Â Â There was, and still is, veryÂ little political desire to revisit thatÂ divisive issue.Â Regulating marijuana use is nowhere near as politically explosive. Nor can it forgotten that Canada’s government is under strong pressure to heed the hardline stance taken on drugs by our neighbours south of the border. Â Â Â
Until the political equation changes, with public opinionÂ solidly moving against the criminalization of marijuana,Â we cannot, alas,Â expect a judicialÂ abolition of our unjust drug laws.