R v Mernagh
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R v Mernagh was a Canadian court case revolving around access to medical marijuana. The basic overview of the entire case is that Canada's Marihuana Medical Access Regulations (MMAR) are ineffective and prevent suffering people from obtaining the most effective medicine with the least side effects to treat their conditions. On April 11, 2011, Justice Taliano, the judge hearing R v Mernagh, released his decision in which he declared MMAR as well as the personal possession and cultivation sections of Canada's federal drug laws to be unconstitutional and unenforceable by law. The government immediately appealed, putting the changes on hold, and the oral arguments were finally heard on May 7 and 8, 2012, after over a year of postponed court dates. The appeal court granted the government's appeal and ordered a new trial, overturning the Taliano decision.
Matt Mernagh suffers from four debilitating conditions: fibromyalgia, epilepsy, scoliosis, and a brain tumor that causes seizures. He was prescribed conventional pharmaceutical medications for his conditions, but the side effects were severe and the medications frequently had little to no effect. Mernagh tried marijuana in college and found that it was therapeutic for the symptoms of his medical conditions.
Mernagh was able to access medical marijuana through a Toronto compassion club. However, when he moved back home to St. Catharines in 2002, he had trouble finding a doctor who would sign his Health Canada forms for MMAR. He first had trouble actually finding a doctor, as the area was suffering a doctor shortage and no St. Catharines doctors were taking new patients. His own family doctor had closed down her practice to start a family. Finally, in 2006, he found a doctor who'd accept new patients. She turned his MMAR forms down and offered him morphine instead.
Then, Mernagh heard about a doctor in Bradford (a two-hour trip each way) who might help sign his Health Canada forms. However, after he got there, he discovered that the doctor instead would only sign essentially a note stating that marijuana was helping Mernagh's symptoms. He refused to sign the necessary forms that would've legally allowed Mernagh to grow his own medicine. The RCMP, however, don't care about doctor's notes.
A brief overview of MMAR
Marijuana in Canada was entirely prohibited until R v Parker was finally decided in the Ontario Court of Appeal in 2000, over an epileptic who used marijuana to treat his condition. The court ruled that prohibition was unconstitutional because it did not provide for any exemptions for medical use. This left Health Canada to do the best they could. Canada's medical marijuana program has been mired in controversy and problems since its birth in July 2001. Fundamentally, what MMAR was supposed to do was regulate the access to cannabis for individual patients that are better served by it than by conventional medication. Health Canada defines two categories of conditions that are appropriate for medical marijuana (there were formerly three). The first category covers debilitating physical conditions such as chronic pain (by fibromyalgia, arthritis, and similar severe conditions), nausea (such as from the effects of cancer treatments or suffering from HIV/AIDS), and epilepsy. Category two is the "Other" column, and is a catch-all for debilitating conditions without being specific. Health Canada also permits marijuana for end-of-life compassionate care in terminal patients, and their Health Canada applications are processed immediately and as fast as possible upon receipt (everyone else gets a turnaround of four to six weeks).
Two attempts were made to decriminalize personal amounts of marijuana in Canada (2002 and 2004). Both died on the table due to the parliamentary session ending before the bill could be voted on (prorogued in 2002, Paul Martin's government fell to a no-confidence vote in 2004). Not to mention that the Drug Enforcement Agency in the US was putting intense pressure on Canada because of their own war on drugs.
The application process
In order to participate in the MMAR program and legally possess your own personal medical cannabis, the current process roughly goes like this:
- The patient asks his/her physician for medical marijuana.
- Assuming the doctor approves, the doctor and patient must complete all of the necessary paperwork, detailing the conditions the patient suffers from. This is sent to Health Canada.
- Health Canada processes the forms and determines if they are complete. If not, the forms package is returned with feedback on what's missing. If so, the forms are given to a specialist to decide if the patient should be approved for medical marijuana.
- Assuming the specialist approves the application, the patient receives confirmation of the approval and an ID card to keep with them that identifies them as a licensed medical marijuana user in the event that they are confronted by the authorities. It's important to note that the MMAR application process is a confidential process between Health Canada, the patient, and the physician involved, and at no time are the RCMP or other local authorities contacted to inform them that a patient in their community has been licensed to possess marijuana for medical purposes.
The MMAR as originally created had more stringent requirements, such as requiring a second specialist's approval and requiring the doctor to make assertions about the benefits being greater than the risks or recommend specific dosages, but the program has been
hammered on with a wrench amended in its lifetime.
Currently, MMAR provides for two ways in which you can obtain medical marijuana legally:
- Grow your own
- Designate someone to grow it for you
If you choose to grow your own, the paperwork you must fill out includes an application for the licenses necessary to cultivate, harvest, and cure marijuana as well as possess it. As part of the cultivation license, you must detail how you will keep your grow op secure from criminal elements, and you must inform the local RCMP that you are conducting a grow op and inform them of the location and your security measures. If you choose to designate someone else, the paperwork for cultivation and harvesting falls on them, instead, as well as accessory forms for you to officially designate them as your licensed grower. They are responsible for taking all of the same steps you would be with respect to securing the grow site and notifying law enforcement. (There have been multiple incidents over the years where the RCMP ignored cultivation licenses and busted legal patient grow-ops anyway; they knew exactly where they were already. This is another thorn in MMAR's side, but it's not directly involved with R v Mernagh.)
From mail-order to grow-ops and back
In its original incarnation, MMAR was set up such that Health Canada cultivated and provided medical marijuana directly to approved patients, by mail. Quality was poor, however, and it was difficult for patients to obtain their medicine because the only licensed grower in all of Canada grew the cannabis in Manitoba and then processed it in Saskatchewan. The program also started to struggle to keep up with demand.
R v Long (2007) threw this single-site section under the bus, because Health Canada had arranged so that they were the only licensed source, but they did not create a legal obligation on the government to supply medical marijuana. The court found that MMAR and its limitations were unconstituional, since without any legal obligations, access to medical marijuana was a matter of policy, not law. The ruling permitted MMAR-approved patients to grow their own plants under fairly strict limitations based on how many plants their dosage entitled them to grow at any given time, based on the expected yield and whether you're growing outdoors, indoors, or a mix of both. They could also designate a grower to grow for them, but a grower could only be one patient's designated source.
Sfetkopoulos v. Canada (2008) loosened the limitations slightly more. As a result of this case, designated MMAR growers can serve multiple licensed people, which has led to licensed, organized commercial operations that perform Health Canada's mail-order-medicine role.
Ironically, Health Canada is now looking to reverse course again after false reports that the MMAR program conducted no inspections surfaced alongside allegations that MMAR growers were not obeying the terms of their license by either growing more plants than allowed, or not destroying plants and harvested cannabis when their yield exceeded their licensed limits, and instead selling the excess. Health Canada released a statement that it does perform inspections, but it doesn't have enough in the budget to effectively inspect the 20,000-plus patients licensed under MMAR.
R v Mernagh
Health Canada's plans to go back to centrally controlling the supply may not matter anyways, as R v Mernagh is pending an appeal decision and will eliminate the program and the need for it if the decision is upheld. Matt Mernagh's case boils down to this: He went through multiple doctors who either flatly refused to recommend marijuana and instead wanted to give him pharmaceuticals or agreed that marijuana would be best but refused to sign the paperwork. So, this left him with no choice but to violate the law. Then he got busted.
Justice Taliano heard the case in Ontario Superior Court, with evidence from both sides. Some of the main elements addressed included:
- Doctors were hesitant to sign MMAR forms because, due to the vague way MMAR is structured, it's unclear what immunity from liability the physician has in the event that a patient they referred to Health Canada is arrested for dealing the cannabis they're supposed to need for medical purposes.
- Doctors were advised in several provinces specifically not to sign MMAR forms due to perceived liability and a supposed lack of evidence demonstrating that marijuana does less harm than benefit.
- The stigma of marijuana concerned many doctors, with the arguably-justified fears, given that they were being told not to participate in MMAR over liability issues, that they would develop a reputation for being a pot doc. This would cause a flood of new patients, above capacity, and this would not only increase the risk of legal liability if someone misbehaved with their license, but it might also impact the physician's credibility and standing in the medical community as well as in their actual local community.
- Some doctors flat-out told their patients (according to testimony from the patients giving evidence in support of Mernagh's case) that cannabis had no valid medical use, while others stated that the risks and benefits were untested and unknown. This occurred in some cases even when the doctor was fully aware that their patient had been benefitting from marijuana for extended periods of time.
- The Canadian Medical Protective Association (CMPA), the insurer for most physicians in Canada, also advised doctors not to participate in MMAR, arguing that marijuana was untested and the risks and benefits were unknown, resulting in the physician's paperwork being nearly impossible to complete in the original MMAR rules, as these were requirements. Liability again swings in, because this was the doctor's own insurance company warning against being involved, so it's easy to infer how much they'd want to support a doctor being held liable for a patient's actions.
- Big Pharma employs "detailers" who are supposed to go around and inform doctors about the details of their company's products. They really should be called sales reps, instead, and have a vested interest in making sure doctors are very aware about all of the wonderful medications available from Company X, compounding the lack of awareness about marijuana.
- Abuse of (and addiction to) prescription opioids, and their sometimes-fatal side effects and interactions with other prescription drugs, is a real problem in Canada, and often these medications are prescribed for chronic pain relief.
Justice Taliano found that medical marijuana had key benefits for patients in need of it, and he found that forcing doctors to accept liability for their patients' actions meant that MMAR was on paper there to help Canadians, but in practice was near-impossible to attain. Taliano upheld previous court rulings that stated that patients with genuine needs should be able to access marijuana legally, and he found that, as currently in place, MMAR violates Section 7 of the Charter of Rights and Freedoms by effectively denying access to medication they have every right to access. As a result, Justice Taliano declared that the entirety of the MMAR was unconstitutional, and also struck down the personal possession and cultivation sections (Sections 4 and 7, respectively) of the Controlled Drugs and Substances Act as also unconstitutional and unenforceable. However, in order to give the government and communities time to react, these changes were held for three months. Justice Taliano also permanently stayed the cultivation charge against Mernagh and granted him a personal exemption to possess and grow, effective immediately, during the suspension.
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It goes without saying that the government appealed Justice Taliano's decision to the Ontario Court of Appeal (the highest court below the Supreme Court of Canada, in Mernagh's jurisdiction), and the three-month grace period before legal marijuana was postponed in order to allow the appeal to be heard. The oral hearing for this appeal was finally heard on May 7 and 8, 2012, with the Crown's arguments heard on day one, and Mernagh's arguments on day two.
From statements made by Matt Mernagh after the hearings concluded, the Crown's case was fairly weak, and when asked by the chief justice (Justice Doherty) a question about how the government would go about dealing with the outcome if Mernagh won his case. The Crown's response was that they'd use the Notwithstanding Clause to block the change in law. Mernagh reported that Justice Doherty looked at the Crown lawyers and said that if they were going to be relying on the clause, they could count on a loss in the court case. The Notwithstanding Clause is a section of the Charter of Rights and Freedoms (Canada's bill of rights) allows the government to effectively ignore specific sections of the Charter for up to five years, with a majority vote, for a specific law and keep it in force even if it's been found unconstitutional. It's a legislative mechanism unique to Canada, and even mentioning it is to invite a PR nightmare. When used like this, it's also known as taking your ball and going home, and the judges of the highest court in Ontario (only the Supreme Court of Canada is higher in judicial power) do not take kindly to this sort of childish bullshit.
Mernagh and his counsel were sure to point out, however, that the justices gave both sides tough questions during the portion of the hearing, so it's not easy to guess how the case is going to shake out. However, at one point, while going through submitted patient witness testimony, Mernagh's counsel brought up T.T., a male patient who was unable to find a doctor who would sign his license forms. T.T. admitted in his testimony to going to his neurologist and asking him to sever his spine so he didn't have to live with the incredible agony below his waist. Mernagh said that when Justice Doherty heard that, he stopped listening and picked up the written testimony that was being referenced, and then he put his face in his hands.
Justice Doherty did, however, end the hearing with a positive sign, according to Mernagh and his counsel, as the judge recognized that something has to be done. The appeals court has a goal of six months or less to reach a decision, although this can vary.
On February 1, 2013, the court upheld the Crown appeal and overturned Taliano, ordering a new trial for Mernagh. Early reading of the decision suggests that the judges were not convinced that doctor non-participation was an intentional outcome designed by the government.
- R. v. Mernagh, 2011 ONSC 2121 CanLII, April 11, 2011
- Indepth: The 38th Parliament CBC News
- "Health Canada to drop medical marijuana grow-op licenses" The Toronto Sun, July 5, 2012
- The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), c 11, s 7 CanLII
- Mernagh went to Toronto's Vapour Central, a vapour lounge, and held a chat on a video stream (while vaping the marijuana he legally can possess under Justice Taliano's decision, of course).
- Raw footage of Mernagh and his counsel talking outside the courthouse after the end of the hearing, discussing the appeal case. (YouTube)