R. v. Mernagh (M.) 2013 ONCA 67
Narcotic Control - General - Legislation - Exemptions
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  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.