Court ruling found fault with medical marijuana law

Representatives from provincial and territorial ministries, medical associations, police forces, municipalities and users of medical marijuana have been invited to offer feedback on the federal medical marijuana access law before Ottawa introduces changes to the law. Health Canada is holding closed-door talks Wednesday and Thursday in Ottawa.

Changes to the 2001 law, which established the Marihuana Medical Access Program, would revise the conditions under which individuals can smoke medicinal pot - but would keep doctors as the gatekeepers for approval of the drug for medical use.

The Canadian Medical Association is not pleased with that provision - and it has come under fire in the courts as well.

The Liberal government of the day introduced the Marihuana Medical Access Regulations after it was established that Canadians have the right under the Canadian Charter of Rights and Freedoms to possess and smoke marijuana to treat their illnesses. The law has been subject to many legal challenges, including a case the Ontario Superior Court heard last January and February, R v. Mernagh. The judge issued his ruling on April 11, 2011.

R v. Mernagh

A St. Catharine's, Ont., man took the federal government to court after he was arrested for growing and possessing marijuana. Matthew Mernagh has a variety of illnesses including fibromyalgia, scoliosis, seizures and depression. Prescription pills didn't work. And after being unable to find doctors willing to prescribe medical marijuana, he grew his own and was charged with the production of marijuana.

Mernagh was joined by 21 witnesses, all of whom testified about the problems they experienced finding a doctor.

In his ruling in favour of Mernagh, the judge gave examples of the difficulties medical marijuana users faced in acquiring the drug, including a man in his 60s identified by the initials "WW" who suffered from Lyme Disease.

"His illness is painful and disabling.... his doctor refuses to sign WW's declaration and won't explain why... He is forced to resort to the dangerous and illegal practice of buying the (marijuana) he requires to treat his pain from illicit sources.... WW is not a criminal but he is forced to engage in criminal activity to survive," the judge wrote.

Another patient in British Columbia, unable to find a doctor to sign his approval form, regularly travelled 950 kilometres to a compassion centre in Vancouver to get his marijuana, the judge noted along with other examples.

The judge concluded that "the vast majority of doctors in Canada are refusing to participate in this program.

Citing the withdrawal of federal research funding into the efficacy and safety of medical marijuana, the judge added, doctors "are obliged by the ethics of their profession not to do anything to harm their patient, and therefore cannot knowingly approve the use of a product whose benefits and risks have not been verified by clinical studies."

In its defence, the federal government argued the law wasn't to blame because its only obligation is to permit access to the drug, not market it, or educate doctors. The judge disagreed.

Paul Lewin, the lawyer who represented Mernagh, said during testimony he encountered "hostility" from doctors who refused to sign consent forms.

John Haggie of the Canadian Medical Association says it's extreme to characterize unwilling physicians as hostile. Still, he concedes that many doctors are uncomfortable with prescribing medical marijuana. Ironically, he says they're more comfortable prescribing opioids, such as oxycodone, to relieve a variety of symptoms, even though those drugs have known side effects.

In his ruling in the Mernagh case, the Ontario Superior Court judge echoed the concerns about the law expressed in previous court cases. Health Canada was unable to say how many times the program has been challenged, explaining in an e-mailed response that "every time a person is charged... for a marijuana related offence, that accused may challenge the constitutionality of the (law) as a defence."
 
The federal government's appeal will be heard next March.