Cannabis Rules Challenged

May 1, 2012

Fed­eral Gov­ern­ment Seek­ing To Uphold MMAR Pro­vi­sions Ontario’s top court is hear­ing an appeal of a rul­ing that struck down key pro­vi­sions of the law gov­ern­ing access to mar­i­juana for med­ical use. In ask­ing that the deci­sion be set aside, the fed­eral gov­ern­ment will rely on what it argues is a series of “pal­pa­ble and over­rid­ing errors” by Supe­rior Court Jus­tice Don­ald Tal­iano, who last year stayed a pro­duc­tion charge against Toronto mar­i­juana activist Matthew Mer­nagh. The appeal, sched­uled to begin on May 7, is the lat­est legal bat­tle over the fed­eral government’s med­ical mar­i­juana scheme, aspects of which have been ruled uncon­sti­tu­tional by courts a num­ber of times over the past decade.  The Cana­dian Civil Lib­er­ties Asso­ci­a­tion, the B.C.  Civil Lib­er­ties Asso­ci­a­tion and a coali­tion of groups rep­re­sent­ing peo­ple who are HIV-positive have been granted inter­vener sta­tus by the Court of Appeal in R v.  Mer­nagh. In his deci­sion, Jus­tice Tal­iano accepted Mernagh’s con­tention that the fed­eral Mar­i­huana Med­ical Access Reg­u­la­tions ( MMAR ) made it too dif­fi­cult for patients in need to access the drug.  The Supe­rior Court judge simul­ta­ne­ously struck down the reg­u­la­tions and the asso­ci­ated pro­hi­bi­tions against mar­i­juana pro­duc­tion and pos­ses­sion in the Con­trolled Drugs and Sub­stances Act-although the dec­la­ra­tion of inva­lid­ity has been put on hold, while the case is before the Court of Appeal. “The com­bined effect of the CDSA and the MMAR is to make sick peo­ple sicker,” said Toronto lawyer Paul Lewin, who rep­re­sents Mer­nagh. The fed­eral Crown mean­while, is argu­ing that the find­ings of Jus­tice Tal­iano lacked an evi­den­tiary foun­da­tion.  “He relied on inad­mis­si­ble evi­dence, mis­ap­pre­hended the legal effect of amend­ments that were made to the MMAR, sub­sti­tuted his own opin­ions for those of the treat­ing physi­cians, and engaged in spec­u­la­tion,” says Crown attor­ney Croft Michael­son, in writ­ten argu­ments filed with the court. “There was sim­ply no basis to con­clude that med­ical prac­ti­tion­ers in Canada had acted in any man­ner other than the best inter­ests of their patient,” he adds. The MMAR requires appli­cants to obtain a signed dec­la­ra­tion from a doc­tor, before they can receive gov­ern­ment autho­riza­tion for med­ical use. After a con­sti­tu­tional chal­lenge to the scheme in 2003, cer­tain con­di­tions in the MMAR were relaxed so that doc­tors were no longer required to rec­om­mend a daily dosage of mar­i­juana for patients or indi­cate that the ben­e­fits of such a treat­ment out­weighed the risks. But Mer­nagh - ​who uses mar­i­juana to treat his symp­toms from fibromyal­gia, sco­l­io­sis and seizures - ​argued in court that the revised reg­u­la­tions remain illu­sory, say­ing he has been unable to find any doc­tor will­ing to sign a med­ical mar­i­juana dec­la­ra­tion.  He was there­fore pre­cluded from access­ing the drug legally, Mer­nagh argues. Jus­tice Tal­iano noted: “The physi­cians of Canada have mas­sively boy­cotted the MMAR and their over­whelm­ing refusal to par­tic­i­pate in the med­i­c­i­nal mar­i­huana pro­gram com­pletely under­mines the effec­tive­ness of the pro­gram.” The Crown says the judge erred on a num­ber of fronts, cit­ing no evi­dence of a “mas­sive boy­cott.” It stated that between 1998 and 2010, the annual num­ber of doc­tors who signed med­ical mar­i­juana dec­la­ra­tions rose to more than 2,000 from fewer than 10. The judge’s sug­ges­tion that physi­cians were fail­ing to meet the legit­i­mate demands for med­ical mar­i­juana was addi­tion­ally prob­lem­atic, Michael­son wrote, because there was no evi­dence adduced at trial to deter­mine how many Cana­di­ans had a valid med­ical need for the drug. “The Char­ter does not man­date that physi­cians rubber-stamp their patients’ treat­ment pref­er­ences,” the fac­tum states, not­ing that the only way to ensure mar­i­juana is restricted to those with valid med­ical needs, is to require a doctor’s dec­la­ra­tion. Lewin dis­agrees.  He sug­gested the cur­rent reg­u­la­tory frame­work sim­ply encour­ages “doctor-shopping” among des­per­ate patients. “The doc­tors made it abun­dantly clear they are not knowl­edge­able with this unap­proved plant ther­apy,” said Lewin.  “They’re not com­fort­able deal­ing with the poten­tial legal reper­cus­sions.” “The doctor-as-gatekeeper idea has been a bad fit from day one…and from day one the gov­ern­ment has denied there was a prob­lem,” Lewin’s respond­ing fac­tum states, not­ing some doc­tors became “hos­tile” or dis­con­tin­ued treat­ment when patients requested a mar­i­juana dec­la­ra­tion. There are other ways to reg­u­late mar­i­juana use, such as cre­at­ing a reg­istry of doc­tors edu­cated about mar­i­juana where patients can turn for a pre­scrip­tion, Lewin sug­gested. Source: Lawyers Weekly, The (Canada) Copy­right: 2012 Lex­is­Nexis Canada Inc. Con­tact: tlw@​lexisnexis.​ca Web­site: http://​www​.lawyer​sweekly​.ca/ Author: Megan O’Toole

a9f79562bb+2 468.jpg 150x112 Cannabis Rules Challenged

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Cannabis Rules Challenged

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