R. v. Mernagh (M.)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Doherty, Simmons and LaForme, JJ.A.
• Citation: (2013), 301 O.A.C. 333 (CA),2013 ONCA 67
• Date: 01 February 2013
• Subject Matter: CIVIL RIGHTS,NARCOTIC CONTROL

R. v. Mernagh (M.) (2013), 301 O.A.C. 333 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. FE.001

Her Majesty the Queen (appellant) v. Matthew Mernagh (respondent)

(C53583; 2013 ONCA 67)

Indexed As: R. v. Mernagh (M.)

Ontario Court of Appeal

Doherty, Simmons and LaForme, JJ.A.

February 1, 2013.

Summary:

The accused, who suffered from a number of medical conditions, claimed that marijuana alleviated his debilitating pain and stopped seizures. He alleged that he could not obtain an exemption under the Marihuana Medical Access Regulations (MMAR) as he was unable to get a physician to sign a medical declaration because of a widespread lack of co-operation on the part of Canadian doctors with the MMAR. He was charged with producing marijuana (Controlled Drugs and Substances Act (CDSA), s. 7(2)(b)). He applied for a declaration that the combined effect of ss. 4 and 7 of the CDSA (the offences of possessing and producing marijuana, respectively) and the MMAR violated his rights under s. 7 of the Charter. He claimed that the protection accorded by the MMAR had proven to be illusory, depriving him and others like him of the right to liberty and security of the person in a manner that was contrary to the principles of fundamental justice.

The Ontario Superior Court (Taliano, J.), in a decision reported [2011] O.T.C. Uned. 2121, concluded that the MMAR made legal access to medical marijuana "practically unattainable for those who desperately need it". As a result, the trial judge struck down the MMAR in their entirety. The judge also declared ss. 4 and 7 of the CDSA to be of no force and effect. He suspended the declarations of invalidity for three months, which were later extended pending an appeal. He also granted the accused a personal exemption to both possess and produce marijuana during the period of the suspension. Finally, the trial judge permanently stayed the charges against the accused. The Crown pursued the appeal.

The Ontario Court of Appeal allowed the appeal, quashed the judge's orders and ordered a new trial.

Civil Rights - Topic 660

Liberty - Limitations on - Cultivation of marijuana - [See second and third Narcotic Control - Topic 6 ].

Civil Rights - Topic 660.1

Liberty - Limitations on - Possession of a narcotic (incl. for purpose of trafficking, medicinal use, etc.) - [See second and third Narcotic Control - Topic 6 ].

Civil Rights - Topic 1396.1

Security of the person - Health care (incl. mental health) - Medicinal use of marijuana - [See second and third Narcotic Control - Topic 6 ].

Narcotic Control - Topic 6

General - Legislation - Exemptions - The Ontario Court of Appeal discussed the evolution of the Medicinal Marihuana Access Regulations - See paragraphs 14 to 22.

Narcotic Control - Topic 6

General - Legislation - Exemptions - A trial judge stated that in R. v. Parker (ONCA 2000), the court had recognized that it was "'a violation of s. 7 of the Charter ... to deprive a person with a serious illness for which marihuana provides relief, of the right to use marihuana to treat his illness'" - The Ontario Court of Appeal stated that "With respect, this is an inaccurate interpretation of Parker ... The correct proposition expressed in Parker is that, given that marihuana can medically benefit some individuals, a blanket criminal prohibition on its use is unconstitutional. This court did not hold that serious illness gives rise to an automatic 'right to use marihuana', and Parker did not remove the requirement that the applicant lead evidence that his or her rights were impaired" - See paragraphs 60 and 61.

Narcotic Control - Topic 6

General - Legislation - Exemptions - The accused, who used medicinal marijuana but was allegedly unable to obtain a medical exemption, was charged with producing marijuana (Controlled Drugs and Substances Act) - A trial judge struck down the Marihuana Medical Access Regulations (MMAR), because a widespread lack of co-operation by Canadian doctors made the MMAR defence illusory, depriving the accused et al. of the right to liberty and security of the person contrary to the principles of fundamental justice (Charter, s. 7) - The Crown appealed - The Ontario Court of Appeal allowed the appeal and ordered a new trial - The trial judge erred by: (1) wrongly interpreting R. v. Parker and Hitzig v. Canada (both Ont. C.A. decisions) as recognizing a constitutional "right" to use medical marihuana; (2) relying on anecdotal evidence and making findings not supported by the record to conclude that the accused and the patient witnesses qualified for MMAR exemptions; and (3) finding that the MMAR operated in such a way as to make medical exemptions practically unavailable, rendering the defence provided by the MMAR illusory - See paragraphs 59 to 117.

Cases Noticed:

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481 (C.A.), refd to. [paras. 2, 131].

Hitzig et al. v. Canada (2003), 177 O.A.C. 321; 231 D.L.R.(4th) 104; 177 C.C.C.(3d) 449 (C.A.), leave to appeal dismissed (2004), 331 N.R. 394 (S.C.C.), refd to. [paras. 5, 119].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [paras. 9, 126].

R. v. Ferguson (M.E.) (2008), 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [paras. 111, 129, footnote 10].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 111].

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 351 D.L.R.(4th) 381; 2012 SCC 57, refd to. [paras. 2, 130].

R. v. Beren (M.D.) et al., [2009] B.C.T.C. Uned. 429; 2009 CarswellBC 794; 192 C.R.R.(2d) 79; 2009 BCSC 429, refd to. [para. 121].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 7].

Controlled Drugs and Substances Act, sect. 4, sect. 7 [para. 7].

Controlled Drugs and Substances Act Regulations (Can.), Marihuana Medical Access Regulations,

Marihuana Medical Access Regulations - see Controlled Drugs and Substances Act Regulations (Can.).

Counsel:

Croft Michaelson and Amber Pashuk, for the appellant;

Paul Lewin, for the respondent;

Ryan Peck and Paul Burstein, for the interveners, the Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario;

Ryan Dalziel, Emily Lapper and Jessica Orkin, for the intervener, the British Columbia Civil Liberties Association;

Jean-Marc Leclerc and Christi Hunter, for the intervener, the Canadian Civil Liberties Association.

This appeal was heard on May 7 and 8, 2012, before Doherty, Simmons and LaForme, JJ.A., of the Ontario Court of Appeal. The court released its decision on February 1, 2013, including the following opinions:

Simmons and LaForme, JJ.A. - see paragraphs 1 to 117;

Doherty, J.A., concurring - see paragraphs 118 to 148.