The Ontario Court Marijuana Decision

Opponents of laws criminalizing marijuana use received a seemingly great piece of news this week. A ruling by the Ontario Superior Court declared unconstitutional provisions of the Controlled Drug and Substance Act that prohibit the possession and production of marijuana.  A closer look at the court’s reasoning, however, gives limited basis for hope that Canada’s judicial branch of government 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 pain as a result of  fibromyalgia, scoliosis, seizures, and depression. As the medicine that doctors prescribed 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 it for medical purposes, a person has to get a doctor, usually a specialist, to declare that marijuana is an appropriate treatment. Mr. Mernagh appealed to this exemption, but could find no doctor willing to approve his request.

Many doctors are unwilling to provide the necessary 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 down the ban on marijuana possession and production. Thanks to a 2000 Ontario Court of Appeals decision, a blanket prohibition had already been deemed a violation of the Charter’s Section 7 guarantee of 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 framework which the federal government subsequently 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 uphold the ruling. Still, the only way this can ultimately lead to the legalization or decriminizalation of marijuana is if the government fails to implement a workable regime for the medical use of cannabis. 

The government, no matter who happens to be 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.  

This will not be like the Morgentaler case. There, the Supreme Court threw out Canada’s abortion laws on the grounds that the existing legislation allowing the procedure under hospital approval did not provide women adequate access to medically necessary care, as mandated by Section 7 of the Charter.  There was, and still is, very little political desire to revisit that divisive issue. 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.    

Until the political equation changes, with public opinion solidly moving against the criminalization of marijuana, we cannot, alas, expect a judicial abolition of our unjust drug laws.

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