OP/ED: The implosion of Canada's medical marijuana regulations

By Contributor
June 1st, 2011

On April 4, 2011 in the Ontario Superior Court of Justice, Justice D. J. Taliano in the case of Regina versus Mernagh handed down a decision supporting on individual’s rights to access medical marijuana.   Although the medical use of marijuana has been legal in Canada since 2001, the Marihuana Medical Access Regulations (MMAR) program has exposed ill citizens to criminal charges. Mernagh, a legally licensed medical marijuana user, successfully demonstrated in court that his rights to “life, liberty and security of person,” (Canadian Charter of Rights and Freedoms, section 7), were infringed upon when his ability to access legal medical marijuana was restricted.   Justice D. J. Taliano agreed with Mernagh, found both the MMAR and the Controlled Drugs and Substances Act (CDSA) unconstitutional, and gave the federal government three months to correct the regulations.  The federal government appealed the decision and the three-month countdown was put on hold.   Because of the government’s failure to create a reasonable process to access marijuana for medical purposes, Ontarians are one court-decision away from outright legalized marijuana. If the federal government loses the appeal, and, assuming the three months have expired, Ontario (where the decision would be binding) will have no law against anyone possessing or producing marijuana.  Through subsequent court challenges, this could arguably be extended across Canada using the Mernagh decision as case law.  Health Canada’s MMAR program was doomed from its very creation. The government of the day neither listened to objections by some Canadian doctors and their professional associations nor consulted other medical associations about whether medical doctors should be the gatekeepers of medical marijuana.  Canadian medical associations collectively cautioned their member-doctors against signing the Health Canada application forms enabling legal access ill Canadians. Their logic was that they were prescribing an “untested medicine.”   Marijuana is probably the most studied plant on earth. Scientific literature contains 20,000 plus studies on the medical use marijuana and its active ingredients. In all of human history, this substance has not caused one fatality. In the United States alone, 40,000 deaths are attributed to the prescription drug Vioxx. Our medical practitioners and their related associations would rather recommend a known lethal drug over one that is benign.   Since our conventional medical profession is reluctant to be associated with marijuana for medical purposes, Justice Taliano recommended that unconventional health care practitioners such as “naturopaths or herbalists, who by the very nature of their training have a more extensive knowledge of alternative forms of medicine” should be able to sign the Health Canada application forms.  In 2010, Justice Taliano found that only 0.012% of all Canadian doctors were signing Health Canada forms. Most doctors, reluctant to sign the form, will make their patient exhaust all conventional pharmaceuticals before granting access to marijuana. Justice Taliano wondered, “How is it justified to permit the use of medicinal marihuana only as a drug of last resort, given its reputation as a fairly benign drug…”  For more than 10 years, Canadian courts have repeatedly stated that the federal government must enable unobstructed legal access to marijuana for sick Canadians who with the support of a health care practitioner choose to use it.  

Since the MMAR is now officially unconstitutional for giving the “illusion” of access to medical marijuana, the Ontario Court of Appeal now holds the hopes of ill Canadians across the country as it addresses the issue of access.  


The article was written by the Grand Forks Compassionate Society for publication.