Concerns persist about illusory access to medical marijuana

February 4, 2013

The Ontario Court of Appeal has released its decision in R. v. Mernagh, a challenge to the constitutionality of the Medical Marijuana Access Regulations. The Regulations are supposed to allow ill Canadian suffering from serious, debilitating illnesses to access to a legal source of dried marijuana for medical purposes. Individuals’ experiences from across the country, however, strongly suggest that patients are having significant difficulty accessing the drug, largely because it can be very difficult to find doctors that are willing to sign the medical marijuana form required by the Regulations.

In the lower court’s 2011 decision, Justice Taliano ruled that the government program established in 2001 to regulate the medical use of marijuana was ineffective and struck down the Regulations as unconstitutional. The judge found that medical practitioners were boycotting the program en masse, therefore making extremely difficult, if not impossible, for seriously ill patients to access marijuana for medical purposes. Medical practitioners have expressed concern that they have been made the gatekeepers to access medical marijuana considering the relative lack of research and education around the medical benefits of the controversial drug.

The Court of Appeal overturned the decision, largely because it found there were problems in the lower court’s factual findings and evidentiary record. The CCLA is concerned that the evidentiary burden the Court of Appeal has placed on defendants in similar situations – namely to find and pay a doctor to assess their individual circumstance and testify to their MMAR eligibility – will be too onerous for many individuals who are criminally charged after using marijuana to alleviate debilitating symptoms.

CCLA is also disappointed that the Court did not use this opportunity to change one of the most significant barriers to legally accessing medical marijuana – the requirement that doctors confirm that conventional treatments have been tried or considered, and found to be ineffective or medically inappropriate. This essentially requires patients to make marijuana a medication of last resort, and it can be a particularly difficult standard for individuals that have not been able to find or keep a primary physician. As was evidenced by Mr. Mernagh, new physicians may suggest retrying all ‘conventional’ treatments, including pharmaceuticals with debilitating side effects, before considering a patient’s request for marijuana. We do not believe that such a rigid regime is necessary to fulfill the government’s objectives, and will continue to watch for opportunities to ensure that ill individuals can effectively access their preferred treatment without risk of arrest or incarceration.

To read CCLA’s factum in this case click here.

To read the Court of Appeal’s decision click here.