Ontario judge rules against medical marijuana rules

TORONTO – An Ontario Superior Court judge has ruled that the medical marijuana program is unconstitutional and has given Ottawa three months to fix the system.

The judge’s ruling could effectively legalize possession and production of cannabis but it will likely be appealed.

Justice Donald Taliano found that sick people cannot get access to medical marijuana through appropriate means and must resort to illegal actions.

He says that brands ill people who should be able to get the drugs as criminals.

The St. Catharines justice declared the program to be invalid, as well as the laws prohibiting possession and production of cannabis.

In an April 11 ruling, Taliano found that doctors across Canada have "massively boycotted" the Health Canada’s medical marijuana program and largely refuse to sign off on forms giving sick people access to necessary medication.

"The effect of this blind delegation is that seriously ill people who need marijuana to treat their symptoms are branded criminals simply because they are unable to overcome the barriers to legal access put in place by the legislative scheme."

The judge’s decision comes in a criminal case involving Matthew Mernagh, 37, of St. Catharines who suffers from fibromyalgia, scoliosis, seizures and depression.

Marijuana is the most effective treatment of Mernagh’s pain. But despite years of effort, he has been unable to find a doctor to support his application for a medical marijuana licence.

Mernagh resorted to growing his own cannabis and was charged with producing the drug.

Twenty-one patients from across Canada testified in the case, saying they were rejected by doctors a total of 113 times.

One Alberta patient was refused by 26 doctors; another in Vancouver approached 37 physicians without finding a single one to sign off on the form.

Patients also face lengthy delays – as long as nine months – in having their medical marijuana applications processed by Health Canada.

"The body of evidence from Mr. Mernagh and the other patient witnesses is troubling," Taliano wrote. "The evidence of the patient witnesses, which I accept, showed that patients have to go to extraordinary lengths to acquire the marijuana they need."

Lawyer Alan Young, a longtime advocate of marijuana legalization, said the ruling is a step in the right direction.

"It’s significant because it’s a Superior Court ruling which has binding effect across the province," Young said.

"By enacting a dysfunctional medical program the government now has to pay the high cost of losing the constitutional authority to criminalize marijuana."

He said the real test, however, will be whether the judgment stands up in the Ontario Court of Appeal.

"If the government is not successful on appeal, they are going to be caught between a rock and a hard place because they don’t have an alternative program in mind," he said. "They don’t have a plan B. They’re in trouble."

Lawyer Ron Marzel told CTV nothing will change immediately.

"Health Canada is constantly being dragged to do the right thing and the court has finally said enough is enough. You really need to fix the program and we are giving you 90 days to do it this time. But of course they will appeal and that will hold up the decriminalization of marijuana."