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Canada: Pot stays illegal in Canada after appeal court overturns ruling Zoe McKnight Vancouver Sun Saturday 02 Feb 2013 Canada’s ban on marijuana will remain in effect following a unanimous ruling by the Ontario Court of Appeal, despite the high hopes of marijuana activists. In overturning a lower provincial court ruling, the appeal court said the trial judge had erred in striking down Canada’s medical marijuana laws by relying on anecdotal evidence presented at trial, by misinterpreting case law and suggesting there is a constitutional right to access medical marijuana, and by wrongly inferring medical marijuana is practically impossible to obtain. A new trial was ordered, but B.C. pot activist Dana Larsen said the court missed an opportunity to improve the medical marijuana system. “Like many of us who were hoping for some kind of positive change, we’re disappointed the ruling didn’t acknowledge what seems to be the case, which is that doctors across Canada are effectively boycotting the medical marijuana access program. A lot of patients are having a very difficult time finding a doctor who will prescribe them cannabis medicines,” said Larsen, who runs two dispensaries in Vancouver and is involved with Sensible B.C., an advocacy group that wants to see marijuana decriminalized. “I disagree with the decision, but I’m not a judge.” The ruling stems from the case of longtime pot advocate and self-styled “cannabis champion of the world” Matthew Mernagh, 37, who has fibromyalgia, scoliosis, seizures and depression. He was unable to find a doctor to support his application for a medical marijuana licence and began to grow his own pot at his home in St. Catharines, Ont., which resulted in criminal charges in 2008. In 2011, Ontario Superior Court Justice Donald Taliano ruled that barriers to obtaining marijuana were unconstitutional because the medical marijuana scheme was flawed. The federal government created the Marijuana Medical Access Regulations in 2001 when it was determined preventing someone with a serious illness from accessing marijuana if it could relieve their suffering was a violation of their Charter rights. Under the federal regulations, a licence to grow or possess pot must be supported by a doctor, some of whom are reluctant to sign off on a licence, and many marijuana users are forced to go outside the Health Canada approval system, Taliano said in his 2011 ruling that declared the medical marijuana regime invalid. In the ruling, laws prohibiting possession and production of marijuana were also struck down as unconstitutional, but the decision was put on hold pending the federal government’s appeal, which was heard last May. What happens next is uncertain, said Vancouver lawyer Ryan Dalziel, who represented the British Columbia Civil Liberties Association as an intervener in the case, adding his client’s disappointment with the ruling was “limited.” “The nub of the ruling was simply that the evidence adduced by Mr. Mernagh was too frail,” Dalziel said. Mernagh’s case centred on the inability of him and other patients to find a doctor willing to prescribe marijuana, which the appeal court said was unfounded. The court also found he did not adequately prove he was eligible in the first place. “In that sense the ruling is most significant to this particular individual and this particular case and it’s difficult to see this as a total vindication of the medical marijuana scheme as it stands,” Dalziel said. “If somebody has a better body of evidence, I don’t think we can say the door is shut to further litigation,” he said, adding it’s still possible the case could make it to the Supreme Court of Canada. If the 2011 decision had been upheld, then Parliament would have been forced to reconsider its drug laws. In its ruling, the Court of Appeal noted this is the third time in a decade they have heard a case related to the marijuana regulatory scheme, and that some changes were being made. In December, Health Minister Leona Aglukkaq announced Ottawa would no longer grant medical marijuana licences to users, and only doctors would be able to prescribe pot. Part of the Crown’s evidence showed that in 1998, the first year an exemption was issued under the Controlled Drugs and Substances Act permitting marijuana possession, four doctors signed off. In 2009, the last year for which full data was available, 2,698 doctors signed off. http://www.vancouversun.com/health/stays+illegal+Canada+after+appeal+court+overturns+ruling/7907876/story.html
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