Professor Hutchinson on Mernagh Decision

Laws on medical marijuana – if they even exist at all – are a complete failure.

According to the judge who heard his case, Matt Mernagh “is a frail young man with a fragile yet genuine demeanour. He moves with difficulty, his body clearly showing the ravages of illness. Educated and articulate, he is using what little strength he has to focus attention on the unnecessary difficulties faced by himself and others like him, in attempting to access medicinal marijuana to cope with their debilitating illnesses.”

The brave Mernagh and his hard-working lawyer, Paul Lewin, assembled testimony sufficient to smash to smithereens the hollow illusion that Canada’s medical marijuana laws are serving the sick Canadians who need it.

They surgically excised one of the many rotten bits of the Marijuana Medical Access Regulations, the requirement that medical doctors serve as the gatekeepers of eligibility. Because many doctors refuse to co-operate, sick Canadians are often left out in the cold, at risk of being nabbed as criminals, harmed by their own doctors.

The key declaration of Ontario Superior Court Justice Donald Taliano’s carefully reasoned decisionin R. v. Mernagh is that the possession and production offences are not valid and are to be struck down. This declaration was suspended, so it has no immediate effect on other cases. But the suspension is only for three months, so there is no chance of the Crown’s appeal being decided in time.

This leaves the federal government with two choices: It could let these two marijuana prohibitions slip into actual invalidity, and let everyone spark up in public, at least until such time as the Ontario Court of Appeal rules on the case; or it could attempt to have the judgment stayed by the appeal court until its appeal can be decided.

Of course, due to the federal election, we have no Parliament right now, and there is no telling what the newly elected government will do with this political hot potato.

So I’ve got an idea: Why don’t we Canadians make this a political issue, even if the politicians don’t want it to be? After all, we happen to be in one of these brief periods where regular citizens are not utterly powerless, since the politicians need enough votes from enough of us on May 2 to keep on governing over us.

Why don’t we try democracy for a change, and tell them what to do with the issue? Why don’t we discuss whether to legalize marijuana?

If this is too wild for you (and it is for the Liberal party), why don’t we at least discuss whether to legalize medical marijuana? What this ruling is telling us all is that there is no legalized marijuana program in Canada, only a bogus scheme designed to cause the cruel illusion of one.

Why don’t we try national sovereignty for a change, and at least try to develop our own marijuana policies free from intimidation by the Americans? It is one of the most humiliating signs of our weak national sovereignty that our neighbouring power is capable of compelling our government to a foolish war on drugs, a civil war against our own youngsters, especially when the pretense of this war’s legitimacy depends on abusing the rights of our own sick fellow Canadians.

The entire history of Canadian marijuana law and policy since R. v. Parker on July 31, 2000, is a history of contempt of Parliament. It was a parliamentary law that was struck down in the ruling, and Parliament was charged with the task of putting in place a replacement law.

Did this happen? No, there was never any parliamentary consideration of a post-Parker prohibition. Not yet. In 2001, the then-Liberal government decided to do an end run around Parliament, and it was the Privy Council – without the consent or knowledge of the House of Commons, without consultation with the public, and without Senate approval – that put in place the new post-Parker prohibition as a complex one where the struck-down criminal prohibition is alleged to stand, together with an elaborately controlled system of exemption or impunity.

The only parliamentary body to consider the marijuana question after the Parker case was the Senate, and its Nolin-Kenny report recommended outright legalization.

By all standard accounts of our Constitution, the lack of parliamentary involvement in the new marijuana prohibition makes the offence of marijuana just as illusory an offence as the offence of abortion became after Parliament failed to act quickly enough after the Supreme Court of Canada’s Morgentaler decision in 1988.

The lack of parliamentary authority was successfully argued in R. v. J.P., a 2003 Ontario Superior Court case, and this position has never been authoritatively rejected by any court. When I advise defendants to bring this fact to the attention of the Crown and insist that this argument be heard, their charges are almost always dropped.

Are we or are we not a self-respecting nation that makes our own criminal laws in open Parliament? Do we believe in national sovereignty, democracy, and the rule of law? When it comes to the marijuana issue, we do not. Not yet.

Are we even a compassionate society, like we say we are? Then why do we prohibit compassion clubs? If Canadian doctors really were to follow the Hippocratic Oath and resolve to “first of all, do no harm,” cannabis would be one of the first things they offer to patients, like California doctors do, because of its outstanding safety record.

Let’s use this opportunity to make Canada more of what we respect it for being.