TURMEL: Paul McKeever's Mernagh Medpot appeal report

[KingofthePaupers]

JCT: Paul McKeever, leader of Ontario's Freedom Party, sat
right beside me and took copious notes. So I'll relay what
he said and add my comments.

PM: Ontario Court of Appeal Concludes Hearings re: Striking
Down Canada's Pot Laws

May 9, 2012 by Paul McKeever

Are Canada's laws against the possession and cultivation of
cannabis to go up in smoke?

JCT: Not to those of us who think they've been up in smoke
since Parker and Krieger killed them and Parliament never
re-enacted those offences.

PM: Canadians now begin to wait for the Court of Appeal for
Ontario to make that call. The appeal court yesterday
wrapped up two days of hearings of the Crown's appeal of
Justice D.J. Taliano's April 11, 2011 trial decision in the
case of R. v. Mernagh. The Court of Appeal could take days
or weeks to render its decision, but the history of the time
taken by Ontario's highest court to make decisions about the
constitutionality of Canada's cannabis laws suggests
Canadians will be waiting between 2 and 6 months for the
answer. What follows is a brief explanation of Justice
Taliano's decision, and an overview of the main arguments
made on appeal; the arguments to be weighed by the Court of
Appeal as it makes its decision.

The Trial Decision Under Appeal

Justice Taliano described Mernagh's medical and legal
situation as follows:

"[1] Matthew Mernagh is a seriously ill young man. He
suffers from the debilitating effects of fibromyalgia,
scoliosis, seizures and depression. He lives with constant
pain. Prescription medications have failed to provide
adequate relief for his condition, and in many ways, they
create additional problems. Marihuana, used medicinally,
eases his symptoms and allows him to function. Mr. Mernagh
cultivates his own supply.

[2] The Ontario Court of Appeal has recognized that it is a
violation of s. 7 of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act, 1982(U.K.), 1982, c. 11, to
deprive a person with a serious illness for which marihuana
provides relief, of the right to use marihuana to treat his
illness (R. v. Parker, 146 C.C.C. (3d) 193). As a result,
the government has created a legislative framework, the
Marihuana Medical Access Regulations, SORl200 1-227 [MMAR],
to allow such individuals to legally access, possess, and
cultivate marihuana for medicinal purposes by obtaining a
licence to do so. A licence is obtained by completing an
application which includes the signed declaration of a
supporting medical doctor.

[3] However, Mr. Mernagh has been unable to find a doctor to
sign his declaration. As a result, he has been unable to
obtain a licence to possess or cultivate marihuana under the
regulations. Therefore, despite his undisputed and serious
illness, and despite the relief he gets from the medicinal
use of marihuana, Mr. Mernagh's cultivation of marihuana for
his personal, medical use is illegal. He comes before this
court because he stands charged with the offence of
production of marihuana, contrary to section s.7(2)(b) of
the Controlled Drugs and Substances Act, S.C. 1996, c. 19
[CDSA].

[4] As an individual whose liberty is at risk as a result of
pursuing his medical treatment of choice Mr. Mernagh
contends that this prosecution violates his rights of
liberty and security of the person under s. 7 of the
Charter. He argues that the combined effect of the MMAR and
the provisions relating to marihuana under the CDSA are
unconstitutional and he seeks a declaration of invalidity
with respect to the offences of possession, cultivation and
trafficking in marihuana contained in the CDSA.

[5] The Crown submits that the problem that Mr. Mernagh is
experiencing in accessing marihuana for medicinal purposes,
is not the fault of the legislation, but with the doctors
whose decision to sign or not to sign a declaration for a
patient is theirs alone and is not subject to government
control.

JCT: Exactly the same argument going on with Terry Parker at
the Supreme Court. They say he had to convince his doctors'
association to participate and Terry says they had to.

PM: [6] The Crown concedes that as an accused facing trial
for an indictable offence there is a threshold violation of
Mr. Mernagh's s. 7 rights to liberty. The only question
then, is whether that violation is in accordance with
fundamental principles of justice. The Crown submits that it
is. Mr. Mernagh submits that it is not."

Justice Taliano received into evidence the accounts of
numerous individuals suffering from a range of illnesses and
symptoms, all of whom report that cannabis had a beneficial
impact upon their conditions. These individuals had, to one
extent or another, found it difficult or impossible to get a
physician to sign the declaration they needed to obtain an
exemption. He found that, because the MMAR makes physicians
the gatekeeper for exemptions, and because too few
physicians - for a wide range of reasons, including
ignorance about the effects of marijuana use, worries about
losing their licence or insurance coverage, etc. - agree to
sign declarations for people who are entitled to exemption,
the MMAR is unconstitutional.

JCT: The Hitzig Applicants also argued the exemption was
illusory because of lack of doctor participation. (500
doctors in Canada is less than 1/160)

PM: He struck down the MMAR accordingly.

JCT: Justice Lederman did not! He ruled that since some
doctors were participating, it meant the exemption was not
illusory. The Hitzig Court of Appeal Justice Doherty,
Simmons and Goudge sustained that ruling that there were
sufficient doctors so that the exemption was not illusory.

PM: And, because the prohibitions against possession and
cultivation apply to uses for any and all purposes (i.e.,
including those who have a constitutional right to be exempt
from prohibition), Justice Taliano declared that the
sections of Canada's Controlled Drugs and Substances Act
prohibiting possession (section 4) and cultivation (section
7) are unconstitutional, hence non-existent in law, with
respect to cannabis.

JCT: Justice Taliano is the second Ontario judge to rule
that a Bad Exemption means No Offence. BENO. That's why the
Mernagh appeal is important. It follows the J.P. BENO
precedent.

PM: He also stayed (i.e., cancelled) the cultivation charge
against Mernagh, whom he found to be a patient benefiting
from the use of cannabis as medicine.

JCT: That's the first time that any court has followed BENO
for cultivation since Krieger!

PM: The Crown appealed Justice Taliano's decision.

The Appeal

The appeal was heard by a panel of three judges: Justice
Janet M. Simmons, Justice David H. Doherty, and Justice
Harry S. LaForme. Justices Simmons and Doherty, together
with Justice Stephen T. Goudge, heard the 2003 case of R. v.
Hitzig.

JCT: So, not only don't they have the necessary 5-judge
panel to overrule the Doherty-Simmons Hitzig ruling that 500
doctors were enough but they'd have to over-ruled
themselves.

PM: In R. v. Hitzig, the court held that a remedy that would
allow everyone to possess marijuana - whether for medicinal
or other uses - would be overly broad. Accordingly, the
court struck down parts of the regulations that made it
unduly hard for patients to qualify for exemption, and that
made it difficult or impossible for them legally to obtain a
supply of cannabis. It reasoned that, with those defects of
the exemptions remedied, the prohibition against possession
did not need to be declared unconstitutional, because
medicinal users would no longer be denied access, like non-
medicinal users. However, the court in Hitzig qualified its
decision as follows:
"[166] The declarations of invalidity we propose remove the
single unconstitutional barrier to eligibility and
sufficient barriers to supply that ATP holders will be
reasonably able to meet their medical needs from licit
sources. As a result, the MMAR as modified become a
constitutionally sound medical exemption to the marihuana
prohibition in s. 4 of the CDSA. While the record before us
sustains this conclusion, it is conceivable that, as events
unfold, further serious barriers could emerge either to
eligibility or to reasonable access to a licit source of
supply. Should that happen, the issue of the appropriate
remedy might have to be revisited in a future case."

PM: And so one of the questions before the justices in R. v.
Mernagh is whether the record in this case evidences further
serious barriers to eligibility/supply, such that the
court's 2003 remedy needs to be revisited. To this very
point, Justice Taliano remarked, in his trial decision, that
"the evidentiary record on the subject of physician
participation in the MMAR before this court is drastically
different from what was before the court in Hitzig."

JCT: How so? In 2003, there were 500, in 2008, 1900. Same
doctor association advising doctors not to participate.

PM: Submissions of the Appellant/Crown

At the appeal hearings, Crown Attorney Croft Michaelson (who
also was the Crown Attorney in the Hitzig case) made a
three-pronged argument:


1. that there was no evidence to support the trial judge's
four key findings;
2. if the Crown is wrong about 1: that the legislation in
question does not infringe section 7 of the Canadian Charter
of Rights and Freedoms; that any inability of eligible
patients to get signed declarations exempting them from the
laws against prohibition and cultivation is due to "non-
state actors" (i.e., physicians) deciding, for medical
reasons, not to sign, rather than due to any defect in the
laws themselves; and
3. if the Crown is wrong about 2: that the infringement of
section 7 is justified under section 1 of the Charter
because the laws impose a limit on rights/freedom that is
reasonable in a free and democratic society.

The bulk of the Crown's submissions concerned the first
prong of its argument. The Crown emphasized that whereas
only 499 physicians had signed declarations at the time
Hitzig was decided, by 2008, the number of physicians who
had signed a declaration had grown by over 400% to 1887. To
that submission, Justice Simmons made the comment that the
statistics do not show how many physicians were asked to
sign a declaration in each year, such that there is a lack
of context for concluding that 1887 represents an
improvement.

JCT: He forgot the real Issue #1! We'll call it Issue #0
because Paul missed it. The Hitzig precedent.

PM: Justice Doherty asked the Crown if it could agree that a
majority of the medical community is on-side with the idea
that the declarations should not be signed. The Crown
replied that it did not think the evidence in the record of
this case supported that conclusion. Justice Doherty then
asked if the Crown could agree that all of the major medical
organizations have changed their positions on whether or not
declarations should be signed. Again, the Crown was
unwilling to concede that, stating that there was not
evidence in the record to support that conclusion. There
were more doctors in 2008 than in 2003 that were willing to
sign, but the evidence was silent on whether a majority or a
minority of physicians are willing to sign, added the Crown.

JCT: The first thing the Crown argued was that this Court
(Doherty, Simmons, he and I knew he meant them) had ruled in
Hitzig that 500 doctors was not unconstitutional and now
there were far more and they were bound by their own
decision in Hitzig. Then he quickly went on to other things
rather than belabor his Joker in the hole. The Crown knew
Doherty and Simmons could now not contradict themselves and
rule 1900 doctors isn't enough when they'd originally ruled
500 was enough.
I can't imagine why McKeever didn't mention the Crown's most
powerful argument since he mentioned the number of doctors.
Maybe it's because he wasn't expecting it and I was. I'd
written several times that they needed 5 judges to overrule
Hitzig's "enough doctors" decision and didn't have it and
when I saw Doherty and Simmons presiding, I knew the game
was over. But I told McKeever! several times, loudly, about
the the impediment of the Hitzig precedent on doctors. So
why did he omit that depressing piece of news?

PM: The Crown's repeated submission that there was
insufficient evidence seemed to puzzle the panel. Mernagh
had tendered the evidence of almost two dozen patients who
had faced difficulties in their attempts to get declarations
signed by physicians. Perhaps to suggest that that should be
a sufficient number, Justice Doherty asked Michaelson,
perhaps rhetorically, how many people one has to bring to
court to prove there is a problem.

Michaelson focused on the quality of the evidence. When he
submitted that it is not sufficient for patients simply to
testify that cannabis "works for me", Justice Doherty
replied that Crown counsel seemed to be playing-down the
evidence that was tendered at trial; that the evidence was
not so trivial as the Crown was suggesting.

After fielding a number of questions from the panel, the
Crown returned to its submissions concerning the first prong
of its argument regarding Justice Taliano's decision. The
Crown identified four key findings of fact made by Justice
Taliano, all of which the Crown submitted were not supported
by sufficient evidence, such that Justice Taliano had made
"palpable and overriding" errors of fact:


a) that "All of [the patient witnesses in the Mernagh case]
ought to qualify for an exemption." (Taliano, J.'s decision,
para. 205)
b) that "many of the physicians named in the patient
affidavits have been arbitrary and biased in their rejection
of their patients' requests for approval of the drug"
(Taliano, J.'s decision, para. 160)
c) that "the physicians of Canada have massively boycotted
the MMAR" (Taliano, J.'s decision, para. 214); and
d) that "ill-conceived legislation.has led to the
unnecessary barriers to access to medicinal marihuana by
those who need it and who are otherwise entitled to have
it." (Taliano, J.'s decision, para 260)

With respect to factual finding a), the Crown submitted that
the trial judge could not find patients to have been
"entitled" without first having medical evidence of
entitlement; evidence that, it submitted, had not been
tendered at trial. The Crown argued that the court was
unjustifiably substituting its opinion re: entitlement for
the opinion of physicians.

The Crown spent a considerable amount of time suggesting
that finding b) was based upon an erroneous use of a study
(referred to at paragraph 158 of the trial decision).
Specifically, the Crown submitted that the study's findings
did not support Justice Taliano's conclusion that "many of
the physicians named in the patient affidavits have been
arbitrary and biased in their rejection of their patients'
requests for approval of the drug". However, a careful
reading of Justice Taliano's decision makes it clear that
Justice Taliano did not base finding b) upon the study
itself. Rather, the trial judge found "as a fact that many
of the physicians named in the patient affidavits have been
arbitrary and biased in their rejection of their patients'
requests for approval of the drug and have not addressed
their minds to the criteria in the regulations as a basis
for their refusals"(emphasis added). Although the panel did
not say so, this author submits that the "vast the text of
the trial decision indicates that Justice Taliano's finding
b) was based not upon the study, but upon the affidavit
evidence before him. The views expressed in the study, he
said, "would clearly account for some of the more bizarre
reactions by physicians described in the patient evidence"
(emphasis added).

With respect to factual finding c), the Crown did a break-
down of the evidence. It said that of the 23 patients whose
evidence was tendered at trial, one third (1/3rd) ultimately
were successful in getting signed declarations. Another
third (1/3rd) had conditions for which cannabis is counter-
indicated (i.e. in which there is a reason for not
administering cannabis). The remaining third (1/3rd), said
the Crown, had made "only relatively minimal" efforts to get
a declaration signed.

With respect to factual finding d), the Crown submitted
that, to know that the "vast majority" of doctors have
refused to sign declarations, the judge would have to have
had evidence before him both of the number of individuals
who are entitled, and the number of doctors who have
declined to sign. The Crown submitted that that evidence was
not in the record.

JCT: Only 1900 doctors participating out of 80,000 and they
see no evidence that the "vast majority" don't participate
whether they were asked or not.

PM: The Crown then moved on to the second prong of its
argument. It argued that none of the witnesses provided
medical evidence of entitlement to an exemption.

JCT: All the MedPot Magnificent Seven did. They all showed
their exemptions and Parker showed his original win.

PM: It argued further that, even were they entitled, their
failure to get a signed declaration was due not to the
legislation, but to the decisions of physicians. The Crown
argued that the Charter only applies to the actions and
omissions of the state, that physicians are "non-state
actors" and that, accordingly, physician decisions not to
sign a declaration cannot violate section 7 of the Charter.

The Crown spent less time addressing the third prong of its
argument: that, if the law violates section 7, the limit
imposed by the law is justifiable in a free and democratic
society, such that it should be saved rather than being
declared unconstitutional. After an animated to and fro
between Michaelson and Justice Doherty concerning whether or
not s. 1 could save the provisions in question, the latter
remarked with a gentle smile that Mr. Michaelson "may have
to stick this [i.e., the s. 1 argument] in the loss column".

The Crown finished its submission with a request that,
should the court strike down the MMARs and the prohibitions
on possession and cultivation, that the court suspend its
decision for a period of "at least one year". Mernagh's
stay, he submitted, should remain in place.

Justice Doherty then said to the Crown Attorney that it
"really troubles me". What, he said, does a person do when
he is really sick and cannot spend the time going from
doctor to doctor looking for one who will sign a
declaration; complaining to the College of Physicians and
Surgeons about doctors who won't sign (which was an option
the Crown Attorney said is available to people), etc. "No
remedy?". Michaelson replied "I guest he might have no
remedy", but added that some in the past have managed to
marshal sufficient medical evidence in a court case to
establish an entitlement to constitutional exemption from
prohibition.

JCT: Like Parker did, Krieger did, Dupuis did, and all the
MedPot Magnificent Seven are doing with their exemptions.

PM: Submissions of the Respondent/Mernagh

For the Respondent, lawyer Paul Lewin first addressed the
four findings of fact (a through d) attacked by the Crown in
the first prong of its argument. He implored the court: if
they were to read nothing else, read the affidavits of the
patients. Their full statements would provide the broader
context - their medical and logistical difficulties, the
nature of the comments and actions of physicians etc. -
needed to understand that the Crown's submission (that the
patients had not tried very hard to find a doctor to sign
their respective declarations) was false.

With respect to factual finding a) (that "All of [the
patient witnesses in the Mernagh case] ought to qualify for
an exemption"), Lewin explained that "all" of the patient
witnesses had medical conditions, all got relief from
cannabis, all had tried other treatments/medicines, and all
should be exempt pursuant to the MMARs.

Justice Doherty sought clarification on the Respondent's
position on getting a physicians signature. He pointed out
that, if the Respondent was arguing that a person shouldn't
need a doctor's signature, the Respondent would be in effect
asking the court to overrule what it said in Hitzig.

JCT: And of course, they can't do that because they'd be
contradicting themselves and would need 5 judges!

PM: He asked Lewin if the Respondent's position was that
requiring a physician's signature is per se
unconstitutional. Lewin replied that, no,

JCT: I think that since it's in the patient's power to
refuse treatment or choose treatment, requiring a
physician's signature should not be needed. They don't ask
for his signature to authorize a procedure, they as for the
patient's.

PM: the requirement for a signature could be made
constitutionally sound by, for example, satisfying 10
criteria laid down by the Canadian Medical Association in
2003. Among the criteria: that a registry of physicians be
made so that patients needed a signature would know which
doctors to approach;

JCT: Yes, had they set up a registry helping people find
knowledgeable doctors, that probably would have then been
acceptable. But if the patient still wanted to try it
despite doctor misgivings, what then? I say Patient Rules.

PM: clinical trials supported by treatment protocols;
the provision of education about cannabis; liability
protection for physicians; etc. Lewin called this the
"template" for fixing the MMAR.

JCT: I don't see how it's up to Health Canada to teach the
doctors their stuff.

PM: Lewin then proceeded to recount the history of the
regulations surrounding medical marijuana. From 2001 to
2005, the government had studied the doctor-as-gatekeeper
system and found it did not work. It accordingly made
amendments to the MMARs in 2005. Lewin explained that,
pursuant to the 2005 amendments, a physician no longer had
to make a statement to the effect that the benefits to a
patient of using cannabis would outweigh the risks. The
Crown, he said, had submitted that a physician now has to
act in the "best interests" of his patient. Lewin argued
that, if it is extremely difficult for a physician to know
that benefits outweigh risks, how can a physician know he is
acting in his patient's "best interests"? In effect, said
Lewin, the 2005 amendment didn't change anything. However,
submitted Lewin, the government since 2005 has "just looked
away" from whether or not the system was functioning
effectively.

Justice Doherty asked Lewin if he agreed that there had been
a "substantial increase" in the number of signing physicians
since the 2005 amendments. Lewin acknowledged that there had
been an increase in the number of signing physicians, but
said he could not agree that the increase was "substantial".
The raw numbers are not the issue, he said. Lewin quoted the
court in Hitzig, arguing that what is relevant is whether
the evidence now before the court suggests barriers exist to
eligibility, such that the court should re-examine the
remedy it provided in Hitzig.

JCT: Actually, Hitzig it could be revisited if physician
participation dropped enough below the 500. And the Crown
has evidence it has gone up. That's why Hitzig had to be
challenged with the request for 5 judges. I've always asked
and never got them which is why the courts could say they
were bound by Hitzig. Again, they can say they're bound by
Alan Young's cursed Hitzig case. If only he'd kept his nose
out of it. Oops. The laws alive again. Ganja Gilligan Young.

PM: Lewin then proceeded to review the arguments made and
evidence tendered at trial concerning the role of the
pharmaceutical industry in doctor prescribing habits; the
marijuana stigma that, the trial judge found, causes
physicians to make arbitrary and biased decisions; and the
government statistics that fail to show an improvement in
providing eligible patients with exemptions. Lewin cited
statistics to the effect that the number of physicians
signing declarations differs dramatically among regions
across Canada having similar populations. Implied in that
submission was that one would not expect the number of
physicians to differ greatly in similarly populated regions,
if one assumes that incidences of illnesses well-treated
with cannabis are roughly equal from region to region.
Therefore, something other that patient eligibility would
have to account for the widely differing numbers of
physicians willing to sign declarations in each region
(things like stigma, fear of legal repercussions, physician
ignorance of cannabis, etc.).

On Day 2 of the hearings, Lewin continued with the second
half of his submissions. He submitted that adjudicative
facts require the appeal's court's deference to the trial
judge where there is some evidence to support the findings.
As against the Crown's submission that evidence from medical
experts must be tendered to establish that a patient is/was
eligible for an exemption, he quoted from paragraph 9 of the
Hitzig decision:
"..the courts, relying on evidence of individuals' personal
experiences and anecdotal evidence have determined that some
seriously ill persons derive substantial medical benefit
from the use of marihuana. The pronouncements in these cases
reflect the normal process of judicial fact-finding made in
the context of an adjudicative process based on the evidence
and arguments led by the parties in a given case. These
factual findings have in turn provided the basis for the
legal conclusion that s. 7 of the Charter requires that a
medical exemption be carved out of any criminal prohibition
against the possession of marihuana."

JCT: Charter requires a Good Exemption for Good Offence. Bad
Exemption for No Offence. So again, the BENO logic is
accepted.

PM: He submitted that, having relied in part on the evidence
of the patient witnesses, Justice Taliano had not made a
factual error in respect of their eligibility, or in respect
of physicians' unwillingness to sign declarations for any
patient. In support of the weight of patient evidence, Lewin
pointed out that witnesses were volunteering very personal
medical information and were admitting using a prohibited
substance (cannabis) knowing that such admissions
potentially were admissions of breaking a law.

Lewin then referred to the part of his factum that dealt
with the benefits of cannabis and with alleged risks
associated with its use. He submitted that sometimes
cannabis helps not just one symptom but many; that cannabis
is safer than many other conventional drugs, including many
over-the-counter drugs; that there has never been a recorded
case of cannabis overdose (he cited the Malmo-Levine case in
connection with this point); that users can "self-titrate"
the dose; that users do not have to smoke cannabis, so
alleged dangers related to smoking are a non-issue; and that
a report did find cannabis helpful to glaucoma.

With respect to harm to patients, Lewin focused on the facts
related to patient witness F.F.. F.F.'s pain was so bad in
his lower torso that he had spoken with his physician about
severing his spine to relieve his chronic pain (note: this
fact appeared, understandably, to have a significant impact
upon the panel). F.F.'s request for a signature was refused
by his first neurologist, but his next neurologist signed
his declaration for the years 2003 to 2005. That neurologist
retired, and the next neurologist refused to sign. F.F. has
not gotten a physician to sign his declaration since then.
Lewin submitted that F.F. did not slip between the cracks.
Rather, he did everything he could do, including writing to
members of Parliament and of the Provincial Legislature,
writing to Health Canada, writing to the Nolin Commission (a
Senate commission), etc.. Lewin submitted that it cannot be
said the F.F. was not entitled because F.F. in fact had his
declaration signed by a physician from 2003 to 2005.

Lewin next dealt with the issue of whether it is acceptable
for a patient to fall through the cracks or to be left
behind pursuant to legislation. He cited the Morgentaler
abortion case. However, the Honourable Justices proceeded to
ask a number of questions that largely took Lewin off of the
planned course of his submissions. Justice Doherty asked if
it was the case that the Respondent thought striking the
provisions was the correct remedy should there be a finding
of unconstitutionality. Answer: yes. Justice Doherty replied
that, surely, every governmental system lets someone down
some of the time, such that, if striking the legislation is
the proper remedy, numerous governmental regimes would fall
due to having failed one or more individuals who fell
between the cracks. Lewin replied that there "has to be a
safety valve", without which, striking the legislation is
appropriate.

Lewin submitted that, although he does not know what the
court will find about the existence of a systemic problem,
his submission was that, at a minimum, there was some
evidence of a systemic problem.

Justice Doherty wanted to know what would make the system
constitutional. Would it be sufficient for the government to
set up a registry of doctors willing and able to determine
the propriety of signing a declaration? Lewin seemed to
respond in the affirmative, saying it would be good if
Health Canada were to put such a registry on its web site.

After fielding Justice Simmons' question about why there
isn't an informal registry,

JCT: There is: http://johnturmel.com/doctors.htm

PM: Lewin continued with his review of the patient evidence.
In one case, a physician escorted a patient out of his
office by the elbow for having brought the physician a
waiver for his signature. In another, the patient told her
physician that she was using cannabis medicinally: the
physician refused to sign the declaration and, instead,
reported the patient to the Ministry of Transportation such
that the patient's licence was suspended. In another case, a
request by a patient that the doctor sign her declaration
found the doctor covering her ears and saying "la la la la,
I can't hear you". In another case, the Crown submitted the
patient was counter-indicated for cannabis, but there was
nothing in the evidence to substantiate counter-indication.

Justice Doherty subsequently expressed his understanding
that the Crown is submitting that no medical evidence of
entitlement was tendered by the Respondent. Lewin responded,
again, that the Hitzig case stands for the proposition that
patients' anecdotal evidence proves entitlement.

JCT: And the Parker, Krieger, Dupuis cases prove a doctor's
evidence on your medical file can convince a judge to exempt
you.

PM: Justice Doherty asked Lewin how anyone can question a
physician's opinion that some other, conventional treatment
is better than cannabis. How, he asked, does such an opinion
prove that the system is broken? Lewin replied that such a
position assumes that the physician knows something about
marijuana. Justice Doherty replied: what evidence is there
that the physicians lacked such knowledge? Lewin's reply:
that the physicians, in the evidence, aren't asking their
patients questions about the effects of cannabis as one
would expect were they to have or want to have such
knowledge.

Lewin thereafter submitted that physicians often prescribe
opioids without adequately knowing their effects. Yet the
side-effects of opioids are much worse than those of
cannabis, he submitted.

Lewin gave examples of physicians telling patients that they
simply would not sign a declaration. In some cases,
physicians refused to admit that they even discussed
cannabis as medicine with their patients. He discussed
physicians' fears of legal repercussions.

Ultimately, Lewin said, the exemption is a criminal defence.
It shouldn't be a matter of "luck" to get a signed
declaration, he said. A patient shouldn't have to lose his
legal defence because his physician retires (as was the case
with at least one witness). He shouldn't have to move to
another province to avoid prosecution.

Lewin then turned to a number of other issues relating to
the Crown's submissions.

The Crown had made a point of saying that the trial judge
had "failed to carry the decimal point" with respect to one
of the statistics cited by the trial judge. Lewin's reply:
it is not as though the trial judge based his decision only
upon a flawed calculation of a percentage: the raw numbers
were known to the judge and, in any event, the numbers are
still miniscule.

During the Crown's submissions, it had argued that the
Charter does not apply to physicians' refusals to sign
declarations because physicians, it said, are "non-state
actors". Lewin submitted, in reply, that the government
cannot protect itself from Charter scrutiny by delegating
discretion to the private sector. The government, he said,
is absolutely responsible for the effects of its
unconstitutional law. In support of his submission, Lewin
cited the Supreme Court of Canada's decision in R. v.
Morgentaler, a case in which the federal government had set
up a mechanism requiring a patient to get a certificate from
a therapeutic abortion committee of an accredited or
approved hospital in order to have an abortion without
committing a crime. Quoting then Chief Justice Dickson:
"Even if the purpose of legislation is unobjectionable, the
administrative procedures created by law to bring that
purpose into operation may produce unconstitutional effects,
and the legislation should then be struck down." Quoting
Justice Beetz: ".a law cannot force a board to appoint a
committee any more than it could force a physician to
perform an abortion. The defect in the law is not that it
does not force boards to appoint committees, but that it
grants exclusive authority to those boards to make such
appointments."

Lewin next turned to Justice Rosenberg's decision in R. v.
Parker, which is the case that first established a patient's
constitutionally-protected freedom to use cannabis as
medicine. In that case, Justice Rosenberg wrote that "the
common-law treatment of informed consent, the sanctity of
life and commonly held societal beliefs about medical
treatment suggest that a broad criminal prohibition that
prevents access to necessary medicine is not consistent with
fundamental justice." In support of his conclusion regarding
the common law, Justice Rosenberg quoted a passage from the
decision of Malette v. Shulman (1990). Lewin read that
passage aloud to the court in the present case. He noted
that although the passage was long, it was compelling, such
that he thought it best to read the quotation in its
entirety:

"The right of self-determination which underlies the
doctrine of informed consent also obviously encompasses the
right to refuse medical treatment. A competent adult is
generally entitled to reject a specific treatment or all
treatment, or to select an alternate form of treatment, even
if the decision may entail risks as serious as death and may
appear mistaken in the eyes of the medical profession or of
the community. Regardless of the doctor's opinion, it is the
patient who has the final say on whether to undergo the
treatment. The patient is free to decide, for instance, not
to be operated on or not to undergo therapy or, by the same
token, not to have a blood transfusion. If a doctor were to
proceed in the face of a decision to reject the treatment,
he would be civilly liable for his unauthorized conduct
notwithstanding his justifiable belief that what he did was
necessary to preserve the patient's life or health. The
doctrine of informed consent is plainly intended to ensure
the freedom of individuals to make choices concerning their
medical care. For this freedom to be meaningful, people must
have the right to make choices that accord with their own
values regardless of how unwise or foolish those choices may
appear to others." (para. 135)

Concluding his submissions, Lewin turned to the issue of
what remedy should be imposed. He submitted that if a breach
of the constitution is found, and a declaration is made
striking down legal provisions, but the effect of the
declaration is suspended for some period of time, the stay
of Matt Mernagh's charges should remain in place. He
explained that Mernagh suffers from scoliosis, fibromyalgia,
and a separated shoulder. Mernagh's physician would have
signed a declaration in 2003 but for the fact that, at he
time, the regulations required a specialist similarly to
sign-off on the treatment. Also, he asked that Mernagh
continue to be allowed to cultivate the cannabis he uses.

Submissions of the Canadian Civil Liberties Association as
Intervenor

Counsel for the Canadian Civil Liberties Association
("CCLA") submitted that the problems with the MMARs are both
factual and legal. However, the CCLA focused primarily upon
the legal problems.

Specifically, it expressed concern that, pursuant to
subsection 6(e) of the MMARs, as they were amended in 2005
(well after the decision in R. v. Parker), a physician
cannot sign a declaration unless conventional treatments
have been tried or considered and found to be ineffective or
inappropriate. The implication of this requirement is that
the regulations are such that physicians are not free to
exercise their best judgment. As a practical example, if a
physician believes that a conventional drug will reduce a
patient's pain from level 9 to level 7, but cannabis would
reduce it to level 5, the physician cannot sign the
declaration because the physician cannot conclude that the
conventional drug is "ineffective": though not as effective
as cannabis, it is nonetheless effective, such that the
physician cannot sign the declaration, and the patient
cannot obtain the medicine that would reduce his pain to
level 5. Thus cannabis is to be authorized by the physician
only as a "last resort". Counsel for the CCLA pointed out
that, given this regulatory requirement, even Terry Parker -
who was present in the courtroom, and who was held to be
constitutionally entitled to use cannabis medicinally in
2000 - could not now obtain a physician's signature.

Justice Doherty asked counsel for the CCLA how he squares
his submission with paragraph 142 from the Hitzig decision.
To understand Justice Doherty's question, I refer you to
paragraphs 140 to 142 of the decision in Hitzig in their
entirety:


"[140] The third attack on the eligibility conditions of the
MMAR, and the one focused on in the argument before us,
rests on the requirement that the physician support for a
medical exemption for individuals in category 2 and category
3 must come from specialists. Again, the Hitzig applicants
make two arguments in mounting the attack.

[141] First, they say that because marihuana is an untested
medication there is no justification for requiring medical
support beyond the individual's own general practitioner
since the specialist has no knowledge advantage. They say
that when this is combined with the practical difficulties
that exist in accessing specialists, particularly in rural
areas, the specialist requirements for categories 2 and 3
constitute an unreasonable barrier which significantly
interferes with those in medical need from accessing the
medication they require.

[142] In our view, this argument too does not succeed. In
order to qualify for a medical exemption, both individuals
in category 2 and those in category 3 must have a
declaration from a specialist practising in an area of
medicine relevant to the treatment of the individual's
medical condition causing the symptom to be mitigated. The
declaration must say that all conventional treatments for
the symptom have been tried or considered and why each is
medically inappropriate. The requirement for a declaration
in this form serves substantial and compelling state
interests. First, it serves the state interest in protecting
the health and safety of its citizens in relation to an
untested drug. Second, it serves the state interest in
complying with international conventions aimed at
restricting the use of drugs such as marihuana save for
legitimate medical and scientific purposes. A specialist in
the treatment of the particular medical condition is likely
to have more knowledge than a general practitioner of the
complete range of possible treatments, including ones that
may just be emerging. The specialist requirement thus better
assures that marihuana is used only if no other more
conventional medication is effective. Given that marihuana
is an untested drug, this is a substantial and compelling
state interest. So too is compliance with international
conventions that are designed to restrict the use of drugs
save for legitimate medical and scientific purposes a state
interest which the specialist requirement also serves."
(emphasis added)

In short, Justice Doherty was saying that, even prior to the
amendments in 2005 brought section 6(e) into existence,
there was a similar requirement that the physician stated
that all conventional treatments had been tried or
considered and found medically inappropriate. Counsel for
the CCLA replied that the court in Hitzig was not dealing
with the "last resort" argument. Rather, it was dealing with
the requirement of having the support of a specialist.
Therefore, submitted the CCLA, any comments about the
criteria were obiter to the "last resort" issue. In effect,
comments about the criteria do not now stand as binding
precedent upon the court in this case with respect to the
"last resort" issue.

Counsel for the CCLA wrapped up with submissions concerning
statistics that show willingness of physicians to sign
declarations differs across the country in regions having
similar populations. Again, implied in the argument is the
assumption that differences are accounted for not by
differences in the number of patients medically eligible to
use cannabis, but by other, non-medical factors affecting
physicians' decisions in different regions of the country.

Submissions of the B.C. Civil Liberties Association as
Intervenor

Regrettably, the courtroom microphone system did not amplify
speakers' voices adequately (if at all). This was
unfortunate, because Ryan Dalziel, counsel for the B.C.
Civil Liberties Association ("BCCLA"), spoke both quietly
and quickly (the latter possibly owing to the rather limited
time each intervenor had been allotted to make its
submissions). The result was that this author, and at least
one other observer I spoke with, missed much of what counsel
for the BCCLA was saying (which is not to imply that the
court had any trouble hearing him). Apologies, in advance,
to the reader should the following account be a bit spotty,
as a result.

There was a discussion about paragraphs 138 and 139 of the
Hitzig decision. In part, counsel for the BCCLA submitted
that the language in that case has to be acknowledged to
apply to the issues in that case, not to the issues in the
Mernagh case.

JCT: Okay, Paragraph 139 is the Crown's killer card:
"The second argument is answered by Lederman Js finding that
despite the concerns of central medical bodies, a sufficient
number of individual physicians were authorizing the
therapeutic use of marihuana that the medical exemption
could not be said to be practically unavailable. This
finding of fact is entirely reasonable on the record in this
case and we would not interfere with it. Of course, if in
future physician co-operation drops to the point that the
medical exemption scheme becomes ineffective, this
conclusion might have to be revisited."

JCT: Too bad Paul didn't actually print the paragraphs there
was discussion about. Because it's the crux of the issue.

PM: Counsel for the BCCLA submitted that the decision in R.
v. Ferguson overtakes the decision in Hitzig with respect to
the issue of whether a law should be struck down if it
violates the Charter rights of only one individual. Citing
paragraphs 49 to 73 of that decision, he concluded that if a
scheme to provide patients with a medical exemption from
cannabis prohibition is "illusory" even for only one person,
the correct remedy is to strike the offending provisions of
the Controlled Drugs and Substances Act.

In response, Justice Doherty referred to the Supreme Court
of Canada's 2005 decision in Chaoulli v. Quebec (Attorney
General). In that case, Canada's highest appeal court struck
down Quebec legislation that banned private health care
alternatives to the government a health care monopoly
because the monopoly was failing to provide adequate health
care to Quebecers. Justice Doherty asked: if the system
doesn't work for just one patient, are you saying the
correct remedy is to strike down the whole system? Counsel
for the BCCLA replied "Yes, strike the ban, if the
legislation is the problem". Justice Doherty asked if
Counsel for the BCCLA knew of any cases in which a system's
failure to serve a single person led to the striking down of
the system, and he asked if counsel thought there is any
government system that would survive were that the approach
taken by the courts. His point: that no government system is
perfect, and there is always at least someone who a
government system fails.

Wrapping up the BCCLA's submissions, counsel submitted that
there is no way to ensure the integrity of a system in which
non-state actors play a role such as that played by
physicians in the MMARs. He submitted that the court should
consider whether the MMARs, by making non-state actors a
part of the system, exposes individuals to an arbitrary loss
of their defence to criminal charges of possession and
cultivation of cannabis.

Submissions of the HIV/AIDs Organizations as Intervenor

Three HIV/AIDs organizations intervened collectively. Their
lawyer, Paul Burstein, had represented Warren Hitzig and
seven others in the 2003 appeal before Justices Simmons,
Doherty, and Goudge.

JCT: One of the Hitzig "Oops, brought the law back to life"
lawyers.

PM: Burstein compared and contrasted the Mernagh case with
paragraphs 95, 98, 99, and 129 from the 2003 Hitzig
decision. He submitted that the process the government has
set up is "manifestly unfair and arbitrary".

Justice Doherty remarked that the idea of having a registry
of physicians who are willing and able to evaluate a
patient's eligibility for cannabis use "makes practical
sense" and he asked Burstein whether or not his group has a
list of such physicians. Burstein replied in the
affirmative, but added that the viability of their system
depends upon what information they can get. In some towns,
there is no way to know who is such a physician, and no way
for locals to learn the identity of such physicians.

Burstein continued with his submissions, saying that the
Crown submits that only those patients with a proven right
have the constitutional protection against conviction under
criminal laws against cannabis possession and cultivation.
The MMARs, he said, are suppose to facilitate an advance
investigation of eligibility so that patients can avoid the
commencement of criminal proceedings against them.

Burstein submitted that:

1. The Charter does apply to doctors' decisions under the
MMARs;
2. There is a lack of needed MMAR provisions for situations
in which doctors improperly refuse to sign a patient's
declaration; and
3. Reliance on "doctor shopping" means that the MMAR is
arbitrary and contrary to the principles of fundamental
justice.

The Crown, said Burstein, says the Charter does not apply to
decisions of doctors, but legislation gives the Minister no
power to override a doctor's decision. The Supreme Court of
Canada has found that to be wrong, he said.

Burstein submitted that the lack of procedural safeguards in
situations where a physician improperly refuses to sign is
contrary to fundamental justice. He said there are "serious
procedural deficiencies" with the MMARs. For example, nobody
can review a physician's decision even if it is unreasonable
and even if the physician simply refuses to sign
declarations. Apart from doctor shopping, there is no
mechanism of review. Citing the Supreme Court of Canada's
decisions in Chaoulli and Morgentaler, Burstein submitted
that doctor shopping involves considerable delay.

Moreover, submitted Burstein, there is no regulatory
requirement that doctors provide reasons for not signing a
declaration, yet the Crown submitted that patient evidence
of why doctors refused to sign is hearsay. In response,
Justice Doherty replied that the same is true when a
physician refuses to prescribe other drugs. Burstein
acknowledged that, but submitted that, with prescription
drugs, there is a higher risk due to higher levels of
toxicity. Also, he said, cannabis prescription/non-
prescription occurs in a different context.

Justice Doherty said that the "fundamental issue" between
the appellant and the respondents is the question of whether
this is a medical decision. Burstein, in response, submitted
that it is not a medical decision. The MMARs do not
accomplish medical scrutiny, he said. The MMARs place no
value in a doctor's refusal to sign. If the MMARs were
really interested in medical scrutiny, surely the refusal of
a doctor to sign a declaration would carry some weight under
he regulations. Yet the MMARs do not care how many
physicians refuse to sign for a given patient. If many
physicians refuse to sign for a patient, and then the
patient finds just one physician who does sign the
declaration, the MMARs are content that that signature
establishes the patient's eligibility for an exemption. It's
not about whether it is a reliable determination. The
government just wants some physician to sign the declaration
so that the government has plausible deniability, said
Burstein [Note: this author infers that Burstein meant that,
should other countries object to an individual being allowed
to possess or cultivate cannabis, the doctor's signature
gives Canada an excuse for not charging the individual
criminally).

Turning to the issue of an appropriate remedy, Burstein
addressed primarily the issue of what should happen if the
court strikes down the provisions in question but suspends
its decision for some period of time. If there is such a
suspension, submitted Burstein, it should provide that
before any charges are laid upon a person under the impugned
provisions, the police/crown should have to wait until the
periods under section 24 of the Controlled Drugs and
Substances Act expire. That would allow a person making a
medical claim to go to court to seek the return of his
cannabis, if it has been seized.

The Crown's Reply

The Crown indicated it required only about five minutes to
reply to the submissions of Respondents' counsel. With
respect to the decision in R. v. Parker, Mr. Parker in
December of 2011 had come before the court seeking the
return of cannabis that had been seized by police. The
court's response was that the MMARs require renewals of ones
certificate of exemption, and Parker had failed to obtain a
renewal, such that he was no longer exempt.

JCT: No one mentioned that it was on appeal right now at the
Supreme Court of Canada.

PM: With respect to the decision of the Supreme Court in R.
v. Ferguson, the Crown directed the court's attention to
paragraphs 60 and 61:
"60 Section 24(1), by contrast, is generally used as a
remedy, not for unconstitutional laws, but for
unconstitutional government acts committed under the
authority of legal regimes which are accepted as fully
constitutional: see Eldridge v. British Columbia (Attorney
General), [1997] 3 S.C.R. 624; Multani v. Commission
scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC
6. The acts of government agents acting under such regimes
are not the necessary result or "effect" of the law, but of
the government agent's applying a discretion conferred by
the law in an unconstitutional manner. Section 52(1) is thus
not applicable. The appropriate remedy lies under s. 24(1).

61 It thus becomes apparent that ss. 52(1) and 24(1) serve
different remedial purposes. Section 52(1) provides a remedy
for laws that violate Charter rights either in purpose or in
effect. Section 24(1), by contrast, provides a remedy for
government acts that violate Charter rights. It provides a
personal remedy against unconstitutional government action
and so, unlike s. 52(1), can be invoked only by a party
alleging a violation of that party's own constitutional
rights: Big M; R. v. Edwards, [1996] 1 S.C.R. 128. Thus this
Court has repeatedly affirmed that the validity of laws is
determined by s. 52 of the Constitution Act, 1982, while the
validity of government action falls to be determined under
s. 24 of the Charter: Schachter; R. v. 974649 Ontario Inc,
[2001] 3 S.C.R. 575, 2001 SCC 81. We are here concerned with
a law that is alleged to violate a Charter right. This
suggests that s. 52(1) provides the proper remedy."

The Crown submitted that a section 52(1) remedy - striking
down legislation - is appropriate only where the law itself
is unconstitutional. In contrast, where the effect of a
decision by a non-state actor (i.e., a physician) results in
a violation of a patient's Charter rights, a section 24(1)
remedy is the appropriate remedy. Section 24(1) of the
Charter reads as follows:
"24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances."

In other words, the crown was suggesting that the MMARs and
the challenge laws against cannabis possession and
cultivation should stand even if an eligible patient like
Matt Mernagh cannot get the signed declaration he needs to
obtain the exemption. Instead, suggested the Crown, such a
patient must come to the court and seek a personal remedy
against the government to relieve his particular situation.

JCT: Like Parker, Krieger, Dupuis had to do.

PM: Justice Doherty expressed concern with that submission.
He said it seems hard not to say that a significant number
of eligible people are not getting access under the current
system. He said it would seem quite unfair to say that one
must therefore resort to obtaining cannabis without an
exemption and, if you get charged, well, just do your best
in court. The Crown replied that that is not the only
option. Instead, a person who cannot obtain an exemption
could bring an application for a section 24(1) remedy,
before being charged, and could line up expert evidence of
his eligibility in order to establish he is eligible for an
exemption. (Authors note: it is not clear whether the Crown
was suggesting that one would have to keep bringing such
applications year after year in order to maintain ones
exemption: the Crown made no remark about renewals). Justice
Doherty replied "So litigation is the only answer?", to
which the Crown replied in the affirmative.

JCT: Actually, this is where Doherty got his biggest laugh.
When the Crown suggested an accused medical user bring
another doctor as an expert witness to testify his family
doctor was wrong, Doherty said: Why not just get the expert
to sign? Har har har har har har har har har.

PM: Justice Doherty said that "they want a personal
exemption process", to which the Crown replied "I don't know
how that would work. It's a medical decision."

Conclusion of the Hearings

The court said it was reserving on its decision. In the
meantime, the status quo is to prevail in respect of Matt
Mernagh's stay and his right to possess and cultivate his
cannabis for medicinal uses.

JCT: So McKeever missed the Crown's biggest card. At least
it keeps the troops cheerful that they not be told the full
extent of the bad news. Some bad news supporters don't need
to be told.