Colin McConnell/Toronto Star File Photo
An Ontario Superior Court judge has ruled that the federal medical marijuana program is unconstitutional, giving the government three months to fix the problem before pot is effectively legalized.
In an April 11 ruling, Justice Donald Taliano found that doctors across the country have “massively boycotted” the medical marijuana program and largely refuse to sign off on forms giving sick people access to necessary medication.
As a result, legitimately sick people cannot access medical marijuana through appropriate means and must resort to illegal actions.
Doctors’ “overwhelming refusal to participate in the medicinal marijuana program completely undermines the effectiveness of the program,” the judge wrote in his ruling.
“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.”
Taliano declared the program to be invalid, as well as the criminal laws prohibiting possession and production of cannabis. He suspended his ruling for three months, giving Ottawa until mid-July to fix the program or face the prospect of effectively legalizing possession and production of cannabis.
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.
Taliano found doctors essentially act as gatekeepers to the medical marijuana program but lack the necessary knowledge to adequately give advice or recommend the drug. He also found that Health Canada has made “no real attempt to deal with this lack of knowledge.”
Taliano said the issue is Canada-wide.
Twenty-one patients from across the country 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.”
The medical profession has been wary of the medical marijuana program since it came into effect in August 2001.
On May 7, 2001, the Canadian Medical Association wrote a letter to the federal health minister expressing concerns with recommending a drug that has had little scientific evidence to support its medicinal benefits.
“Physicians must not be expected to act as gatekeepers to this therapy, yet this is precisely the role Health Canada had thrust upon them,” the letter stated.