Marijuana ruling lights path to legalization

An Ontario court ruling that could legalize the possession of marijuana in the province will be reviewed by the federal government, officials say.

Appeal of medical marijuana case pondered by Ottawa

An Ontario court ruling that could legalize the possession of marijuana in the province will be reviewed by the federal government, officials say.

"The government of Canada is reviewing the decision and will consider its options," Leslie Meerburg, spokeswoman for Health Canada, said Wednesday in an email.

A worker touches a cannabis plant at a growing facility for medical marijuana in Israel. ((Nir Elias/Reuters))

Justice Donald Taliano gave Ottawa until July to fix the federal medical marijuana program or face the prospect of effectively legalizing possession and production of cannabis. 

In a ruling released earlier this week, Taliano found the program to be unconstitutional because sick people cannot get access to medical marijuana through appropriate means and must resort to illegal actions such as growing their own supply.

As a result, ill people who should be able to get the drugs are branded as criminals, he said in the decision.

The St. Catharines justice declared the program to be invalid, as well as the laws prohibiting possession and production of cannabis, since they can be used to criminally charge medical users unable to get the drugs through legal avenues.

Appeal likely

If left to stand, the decision — which takes effect in 90 days — would make possession and production of marijuana legal in Ontario, said Alan Young, a Toronto lawyer involved in several other challenges to Canada's cannabis law. 

That would encourage judges in other provinces to strike down the law in their jurisdictions when confronted with similar cases, he said. 

The matter would likely end up before the Supreme Court of Canada, which can rule on federal laws, he said.

"Health Canada has no Plan B," Young said Wednesday. "So the knee-jerk reaction will be to appeal" and fight vigorously to obtain a stay of judgment that would keep the law in place until the appeal is resolved, he said.

"This case is just exposing the tip of the iceberg in terms of potential litigation against the government of Canada, so they can defend this all they want by appealing, but they're not going to escape the onslaught," he added.

"It makes more sense to concede defeat, surrender and come up with something that really helps Canadians."

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

Unable to find a doctor who would support his application for a medical marijuana licence, Mernagh began to grow his own and was eventually charged with producing the drug. 

Taliano found that doctors across the country widely ignored Health Canada's medical marijuana program and refused to sign off on forms that allow sick people to legally obtain cannabis. 

Mernagh's lawyer, Paul Lewin, said he's confident the decision will be upheld by the Ontario Court of Appeal.

Meanwhile, Mernagh has been granted an exemption that allows him to smoke and grow cannabis.

"I've already started sprouting seeds," he said.

Canada's medical marijuana program was created in 2000 after the Ontario Court of Appeal upheld a Toronto man's right to smoke pot to alleviate his epileptic seizures.

 In that case, the court gave Ottawa a year to change the law so that sick people could access the drugs they need, or see it struck down altogether.