The Ontario Court of Appeal has upheld medical marijuana provisions that require those with serious illnesses to obtain a physician’s approval before they can legally acquire cannabis to alleviate their pain.
The 3-0 decision overturned a lower court decision that had earlier struck down the laws as being impractical and difficult to comply with.
The appellate judges ruled that the case under appeal had failed to establish that patients at the heart of the case were systematically unable to obtain medical marijuana.
“In the absence of admissible evidence as to whether they qualified for exemptions and the reasons for which their requests for declarations were rejected, this court cannot accept that the difficulties faced by these individuals render the entire Marijuana Medical Access Regulations regime unconstitutional,” it said.
The ruling was a major disappointment to civil libertarians and advocates for HIV-AIDS patients, who had argued that it is virtually impossible to obtain the medical approval the law demands.
“Allowing the current regulations to stand unchanged will leave many people with serious health conditions without effective access to legal authorization to use cannabis as medicine, and this means they are exposed to the risk of criminal prosecution,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network.
“People shouldn’t have to risk going to prison in order to get the medicine they need,” he said.
Medical marijuana has proved helpful in reducing appetite loss, nausea, anxiety and depression associated with some medical conditions.
Created in 2001, the regulatory scheme was intended to help those who need cannabis for medical purposes to avoid criminal prosecution for production or possession of the drug.
The litigant at the centre of the case, Matthew Mernagh, was charged in 2008 with producing marihuana illegally. At the outset of his trial, he applied for a declaration that the law violated his constitutional right to life, liberty and security.
Mr. Mernagh, who suffers from fibromyalgia, scoliosis, epilepsy and depression, claimed that he was unable to obtain a medical marijuana exemption because no physician was willing to sign his medical declaration.
His lawyer also argued that doctors have refused en masse to co-operate with the medical marijuana regime.
However, the court majority concluded today that Mr. Mernagh and several interveners in the case were unable to prove that access to the medical exemption scheme was illusory.
“Further, the evidence in this case fails to prove that the vast majority of physicians in Canada refuse to participate in the MMAR scheme,” the court majority said.
Mr. Elliott criticized the medical regime for leaving many of those afflicted with serious illness in limbo.
“In practice, the requirements of the regulations are often unworkable, meaning people suffering with serious health conditions are unable to overcome the hurdles currently in place,” he said in a release. “As a result, they are treated as criminals under the Controlled Drugs and Substances Act , which makes it a crime to produce or possess cannabis without authorization.”
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