MMAR, possession and production found unconstitutional in Ontario today!

[Green&Gold]

FOR IMMEDIATE RELEASE
April 12, 2011
COURT STRIKES DOWN MARIJUANA LAWS, GIVES GOVERNMENT 90 DAYS TO FIX CHARTER ISSUES

http://whyprohibition.ca/blogs/jaco...s-gives-government-90-days-fix-charter-issues

Click here to read the decision

Today in R v. Mernagh the Ontario Superior Court of Justice found the entire regulatory scheme governing medical marijuana (the Marihuana Medical Access Regulations) to be invalid. As a result sections 4 (prohibiting possession) and 7 (prohibiting production) of the Controlled Drugs and Substances Act were stricken. The government has been given 90 days to fill the legislative void or it will become legal to possess and produce marijuana.

The basis for the decision was that the government's controversial decision making allopathic physicians the only gatekeepers to patient access created a scheme that was too restrictive and made it too difficult for Canadians to lawfully acquire the medicine. In the Court's words "...it is long past time for the government to provide the medical access to marihuana that was directed by the Parker court over ten years ago..." Parker was a 2000 decision of the Ontario Court of Appeal that gave rise to the MMAR scheme.

"Complaints about the doctor-as-gatekeeper role, from patients and physicians, have been a constant feature of this flawed system," said Kirk Tousaw, the Foundation's Executive Director and a BC lawyer that successfully argued R v. Beren, in which the BC Supreme Court found certain supply-side aspects of the scheme to violate the Charter. "This decision represents a huge step forward for critically and chronically ill Canadians that want to access this safe and effective medicine without being turned into criminals for doing so."

Jacob Hunter, the Foundation's Policy Director and an authorized medical cannabis consumer, also hailed the decision: "I know how hard it has been to find a supportive physician. There are a million medical cannabis consumers in Canada and, in ten years, less than 10,000 have been able to become legal. That just isn't right."

The Foundation urges the upcoming new government of Canada to work with patients, producers and distributors of medical cannabis over the next 90 days to craft a legislative model that works. "Who knows," speculated Tousaw, "the government could always choose not to re-legislate, as did with the abortions laws after the Morgentaler decision, and finally put an end to the harms being caused by marijuana prohibition. "

The Foundation congratulates Mr. Mernagh and counsel Paul Lewin for their outstanding efforts and salutes all those that assisted in the case.

Contacts
Kirk Tousaw
Jacob Hunter
*

 

[bobthegrower]

Lets wait for the 90 days Ok.......I have seen this a few times before.

Good timing with election tho.....maybe they forget to contest it!

 

[Green&Gold]

Ron marzel one of the lawyers battling the mmar will be on ctv tonight at 11:30 to talk about this....

 

[Smokerman]

Pot Law Unconstitutional

Pot Law Unconstitutional

In a stunning decision, Ontario Superior Court Donald Taliano has ruled that Canada’s medical marijuana program is run in such a manner that it compels sick people to break the law to get relief, therefore it is unconstitutional and so are the laws prohibiting acquisition and use of cannabis, at least in the province of Ontario.
Justice Taliano noted that the federal program is almost nonfunctional, with some patients waiting nine months for their applications to be processed, and that many doctors simply refuse to sign forms giving their patients legal access to their medication. “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”, he was quoted in the Toronto Star.
According to the Vancouver Sun, a court case determined that the Canadian Charter of Rights and Freedoms guarantees people with serious medical conditions the right to use marijuana if it relieves their pain. This led to the creation of Canada’s medical marijuana program, so Justice Taliano’s ruling essentially says that you can’t have a medical marijuana program in name only; it has to actually help sick people or it’s unconstitutional. (State governments in Montana, New Jersey, and Maryland, take note!)
This ruling gives the province 90 days to essentially fix the problem, or risk have all laws against marijuana go away as well. Considering the political problems that anti-marijuana Prime Minister Stephen Harper are having right now, I’d say it’s time he started thinking outside the box. BC Bud, anyone?

 

[Spiritu]

so what do you guys think will most likely come of this? especially given the current political climate and pending election, 90 days is not a lot of time for government to figure this out. Or is the election un-important since this is more of a provincial matter at this point?

 

[CANNATOPIA]

Very Informative post. Thank you.

 

[gaiusmarius]

wow that's interesting, wonder how it will go.

 

[Bodah]

Via the Toronto Star website...


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.

http://www.thestar.com/news/article/973886--pot-laws-ruled-unconstitutional?bn=1

 

[Bodah]

Media outlets are apparently recieving huge volumes of traffic due to this story... Hundreds of thousands of hits across the world in only a few hours~ Personally, I'm not going to get excited over all the hoopla, yet... The last time a similar scenario played out like this in the courts the mmar program was introduced, but I'm sure things could just as easily easily turn the other way. Its up in the air, and in 90 days we MAY find out where it lands...

The more realisic projection is that health canada will have made zero headway in the 90 day period, leaving them to file a long and costly appeal to try and get the case thrown out, or at the very least buy them some time to throw together another dyslexic helter skelter access program~

I am optimistic about this, but reason keeps on butting in ~

Cheers,
Bod~

 

[Bud Bug]

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.

Whats funny about this how many doctors give out free pills for testing. My gf's old family doctor had a whole room filled with samples. She use to come home with crazy amounts of pills to try. We had 100's of Novopharm from the doc for free. Best part is when she asked about medical cannabis she was shot down and the doc wanted nothing to do with weed.

 

[MaryJane51]

Whats funny about this how many doctors give out free pills for testing. My gf's old family doctor had a whole room filled with samples. She use to come home with crazy amounts of pills to try. We had 100's of Novopharm from the doc for free. Best part is when she asked about medical cannabis she was shot down and the doc wanted nothing to do with weed.

It only took a decade for a court to find that this system is messed up and hardly any doctors even want to participate. Why can't we start making doctors accountable for turning down patients for medicinal cannabis when they'll give you any other drug in the book?

 

[Green&Gold]

The best part of the decision is that the judge found that having the doctors as gatekeeper was the reason the mmar program is invalid. Because the government did nothing to enable doctors to sign patients.

 

[B. Friendly]

step by step
can't wait to see how this comes down
I like the abortion comment. after enough the courts get fed up with government bs
good to know

 

[madback]

Canada is all squirrelled again...

Canada is all squirrelled again...

THE GLOBE AND MAIL:

An Ontario court has struck down Canada's laws against possessing and growing cannabis as part of a ruling that found the country's medicinal marijuana program is failing to provide access to the drug for those who need it.

Manitoba's NDP government is loosening the purse strings in a pre-election budget that boosts spending on education, child care and municipal infrastructure.

http://www.reuters.com/article/2011/04/13/pressdigest-canada-idUSL3E7FD1HL20110413

 

[CareFreeLivin]

step by step
can't wait to see how this comes down
I like the abortion comment. after enough the courts get fed up with government bs
good to know

This is just it. The dam can only hold so long before it breaks.

 

[skinzilla]

Great decision by the court, but a horrible time for Harper and the Conservatives to be in power. They'll want tighter restrictions, not looser ones. They're definitely no friends of the medical marijuana community.

 

[OneTokeOver]

About time, a Judge with balls!

I'm nine months and waiting........

 

[Chimera]

The crown will likely ask to stay the ruling, and appeal to the supreme court... this one won't be settled in 3 months.

Good for the judge involved, moreover he made the right ruling.... the congrats should go to the legal team who put up 26 patient witnesses who together failed to get approval to the program from their respective doctors over 121 visits... ouch. Access the the system doesn't work, which is essentially why the MMAR was created in the first place..... the section 56 program was de facto non-existent, since nobody could access the program.

-Chimera

 

[jdkronyk101]

Ontario judge strikes down marijuana laws

Ontario judge strikes down marijuana laws

check this out folks!

Ontario judge strikes down marijuana laws

By Eric W. Dolan
Wednesday, April 13th, 2011 -- 4:49 pm
Share6 76 50Share6Share8Share2

A Canadian court ruled the government has three months to revise its unconstitutional medical marijuana program before the drug will become effectively legal to possess and produce in the country.

Ontario Superior Court Justice Donald Taliano ruled that Canada's medical marijuana program is invalid because regulations made it too difficult for sick Canadians to lawfully acquire the drug.

"Rather than promote health – the regulations have the opposite effect," he wrote in his decision [PDF]. "Rather than promote effective drug control – the regulations drive the critically ill to the black market."

Sections 4 and 7 of the Controlled Drugs and Substances Act, which prohibit the possession and production of marijuana, and the Marijuana Medical Access Regulations were stricken down, but the judge suspended his ruling for three months to give the federal government time to revise the medical marijuana program.

"There are a million medical cannabis consumers in Canada and, in ten years, less than 10,000 have been able to become legal," Jacob Hunter, policy director for the Beyond Prohibition Foundation, said. "That just isn't right."

The government is reviewing the decision and weighing whether to appeal it, a spokeswoman told the The Canadian Press.

The ruling stemmed from the constitutional challenge of Matthew Mernagh, a 37-year-old man who suffers from several illnesses, including fibromyalgia, seizures and scoliosis, which cause severe pain in his spine.

Mernagh was arrested in 2008 after police officers seized 70 marijuana plants from his apartment. He claimed he was forced to grow the plants because he was unable to find a doctor to support his application for a medical marijuana license.

Justice Taliano granted Mernagh a "personal exemption" to possess or produce marijuana during the 90 days his ruling is stayed.

 

[Frostynugz]

Sounds like this is going to finally get HC to straighten up their act.(Or at least b

Sounds like this is going to finally get HC to straighten up their act.(Or at least b

http://www.vancouversun.com/health/ruling+expected+face+federal+appeal/4613580/story.html


Nice to see someone in a position of power with common sense. Being from Ontario myself, I hope this helps me get a bit closer to getting a signature whenever HC presents it's response on how they're going to improve things