Atlas Toked: Why Prohibition is Dead in Canada
April 24, 2011 by Paul McKeever
In Ayn Rand’s novel “Atlas Shrugged”, the United States’ taxed and over-regulated inventors and problem solvers go on strike. Having shrugged off the burden of carrying others – the burden of thinking for them and making possible the production of goods and services that make civilization possible – the rest of society falls into hunger, darkness, and violence. In the interim, the government attempts to prevent the strike with force of law and guns but it ultimately discovers that the human mind is sovereign; that no amount of law or physical might can force a person to think and work if he simply chooses not to do so. A recent decision in Ontario’s Superior Court of Justice has now demonstrated that the same metaphysical fact faces the proponents of cannabis prohibition in Canada, which now appears destined to share the fate of Rand’s Atlas-forsaken United States.
On April 11, 2011, Ontario Superior Court Justice D.J. Taliano issued his decision in the case of R. v. Mernagh. Justice Taliano declared that the sections of Canada’s Controlled Drugs and Substances Act prohibiting possession (section 4) or cultivation (section 7) are unconstitutional, hence non-existent in law, with respect to cannabis. He stayed (i.e., cancelled) the cultivation charge against Mernagh, whom he found to be a patient benefiting from the use of cannabis as medicine. For reasons that I will explain below, it would appear cannabis prohibition will soon be history in Canada.
Before getting into tomorrow’s history, let’s look at a bit of current history. In 2000, in the case of R. v. Parker, Ontario’s Court of Appeal concluded that the government had no power to make a law prohibiting patients from accessing, cultivating, or possessing the cannabis they use as medicine. Until that decision, the law had made no distinction between patients and non-patients. The Court of Appeal in that case gave the government one year to change the law so as to make cannabis prohibitions apply only to non-patients. In response, the government introduced the Marihuana Medical Access Regulations (“MMARs“); regulations purportedly designed to ensure that patients, but nobody else, could access, cultivate, and possess cannabis.
The MMARs essentially require patients to get a physician to sign a declaration to the effect that the person is a patient who should be using cannabis to treat his medical condition. As a result, the regulations put into the hands of physicians the power to identify which patients will or will not get exempted from Canada’s cannabis prohibition laws.
In R. v. Mernagh, Mernagh argued that physicians have widely refused to accept the role of cannabis “gatekeeper”, with the effect that patients lack the exemptions they need to obtain cannabis legally. Justice Taliano agreed. He found as a fact that the overwhelming majority of physicians were refusing to sign the MMAR’s cannabis declarations for their patients. As evidence, Justice Taliano detailed the experiences of over 20 patients from across Canada who have run up against a medical profession unwilling to sign the paperwork necessary for the patients to obtain exemptions from prosecution under the Controlled Drugs and Substances Act. He detailed numerous reports from physician organizations stating that member physicians should not provide patients with legal access to cannabis. The only evidence available concerning the percentage of physicians participating in the government’s exemption program for patients came from 2001 data showing “only .012% of all of the doctors practising in Canada that year signed a declaration for a patient”.
Having found as a fact that the MMARs are failing to provide patients with the legal exemptions they need from Canada’s cannabis prohibition laws, Justice Taliano concluded:
Accordingly, the MMAR must be struck in their entirety. In the result, there is no legislative scheme in place to provide an exemption from the prohibitions contained in sections 4 and 7 of the CDSA. This brings us back to the situation faced by the court in Parker, in which case, those sections would also have to be declared of no force and effect as required by the court in Parker.
Justice Taliano suspended the effect of his decision until July 11, 2011, so that Canada’s Parliament and government would have three months to try and come up with another set of laws to give patients better access to cannabis. However, Canada is in the midst of a federal election, and Parliament is not expected to be sitting again before July 11, 2011. It is rather unlikely that any attempt to change the law will be made prior to July 11, 2011.
Given that situation, it should not be all that surprising that the Crown has decided to appeal Justice Taliano’s decision to Ontario’s Court of Appeal. The effect of commencing the appeal is that, until Ontario’s Court of Appeal renders its decision, it is as though Justice Taliano’s decision had not been rendered at all. Until the Court of Appeal renders its decision, patients like Mernagh, who cannot find a physician to sign their declarations, can and probably will be charged with possession or cultivation of cannabis under sections 4 and 7 of the Controlled Drugs and Substances Act.
That said, it would appear that the Crown’s appeal has little chance of success. An appeal is not a re-trial of a case. The law limits the powers of an appeal court. Specifically, there are rules about whether or not an appeal court can overrule a trial judge’s decision.
One set of appeal rules applies to “findings of fact”, and another set of rules applies to “findings of law”. “Findings of fact” are the conclusions the judge makes about the facts of reality. For example: “the physicians of Canada have massively boycotted the MMAR and their overwhelming refusal to participate in the medicinal marihuana program completely undermines the effectiveness of the program” is a finding of fact made by Justice Taliano in the Mernagh case. So is this: “…under the current legislative scheme, legal access to medicinal marihuana is practically unattainable for those [patients] who desperately need it”. Facts are proven with other facts, called “evidence”. The following passage includes two pieces of evidence that doctors are refusing to assist patients to obtain a licence to cultivate and possess cannabis for medicinal purposes:
[A patient who was a witness in the R. v. Mernagh case] has asked two neurologists to support her marihuana use by signing the Health Canada declaration. Both have refused. One of these doctors told her he did not sign for anyone; the other held her hands over her ears and sang “la, la, la, la, I can’t hear you” as a response to her request.
In the case of Housen v. Nikolaisen  2 S.C.R. 235, the Supreme Court of Canada stated that:
The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen.
That means that if a given finding of fact by the trial judge cannot be plainly seen to be erroneous, the appeal court cannot interfere with that finding of fact.
In R. v. Mernagh, the facts and evidence were clearly on Mernagh’s side. The crown tendered no evidence concerning the percentage of physicians that will agree or that routinely refuse to sign declarations. In the absence of evidence to the contrary, it is simply ridiculous to expect that an appeal court could “plainly see” Justice Taliano’s key finding of fact – that the MMARs fail to provide patients with access legal access to cannabis – to be erroneous.
If the crown’s appeal is to succeed, the crown will have to show that one or more of Justice Taliano’s “findings of law” were such that the court has authority to interfere with his findings. The test for changing findings of law was explained by the Supreme Court of Canada as follows:
The standard of review on pure questions of law is one of correctness, and an appellate court is thus free to replace the opinion of the trial judge with its own.
In other words, if Justice Taliano misunderstood, misrepresented, or misapplied the law, then the appeal court is free to apply the correct law to Justice Taliano’s findings of fact. If, after applying the law correctly, the appeal court comes to a different conclusion (using Justice Taliano’s findings of fact), then it can change the outcome of the case. For example, it could find Mernagh guilty of cultivation, or could find the government’s enforcement of possession and cultivation laws to be consistent with Canada’s constitution.
It is doubtful that Justice Taliano erred with respect to the law. Having well detailed the fact that the MMARs fail, in practice, to provide patients with legal access to cannabis, we are indeed in the situation that the Court of Appeal already has said, in R. v. Parker, not to be constitutionally viable.
It is even more doubtful that the government/Parliament will be able to create regulations or statutory amendments that remedy the situation. The central problem is that the courts have said the power of the government with respect to non-patients differs from its power with respect to patients. Non-patients can be fined or imprisoned for possessing or cultivating cannabis, but – according to the courts – the constitution gives the government no authority to make or enforce such a law against patients who use cannabis as medicine. In order for a patient vs. non-patient distinction to be enforceable, there must be a credible way to identify who is a patient using cannabis as medicine, and who is not. Nobody except a physician is qualified to make such an identification, yet physicians are refusing to make the identifications.
There are both legal and practical barriers to creating a legal framework that would encourage physicians to change their minds and to identify who is and who is not a patient. With respect to legal barriers, physicians rightly fear being sued by patients who might eventually claim that they never should have been prescribed cannabis. A law could be passed to deny patients the right to sue physicians for prescribing cannabis, but there are at least two major problems with introducing such a law. First, there may well be cases in which a physician’s prescription of cannabis amounts to malpractice; in which prescribing cannabis to a given person led to a forseeable, avoidable loss for which a patient should be able to sue for compensation; in which a law against suing the physican would be unjust in some circumstances. Second, a law prohibiting a patient from suing a physican for prescribing cannabis is a law that arguably falls under the exclusive jurisdiction of the Provincial Legislatures: the federal government arguably has no constitutional authority to make a law that prevents patients from suing their physicians over the negligent prescription of cannabis. In other words, even were giving physicians immunity a way to fix the constitutional problem, the federal government lacks the power to create the fix.
The practical barriers include the fact that potential lawsuits are not the only thing causing physicians to boycott the signing of cannabis declarations under the MMARs. As Justice Taliano explained, “…doctor[s] are obligated by the ethics of their profession not to do anything to harm their patient, and therefore cannot knowingly approve the use of a product whose benefits and risks have not been verified by clinical studies.” Even were doctors immune from cannabis-related lawsuits, it is likely that they would continue to boycott signing the cannabis declarations because they apparently believe, in the circumstances, that prescribing cannabis to patients is unethical, given what they believe to be inadequate research into the effects of smoking cannabis.
It appears unlikely that any appeal or any change in the law will have the effect of giving patients legal access to cannabis so long as non-patients are prohibited from possessing, cultivating, or buying/selling it. If it is unconstitutional to require patients to prove themselves patients in circumstances where such proof is unobtainable, then proof of patienthood cannot be a pre-condition for legal possession or cultivation. And, if proof of patienthood is not a pre-condition for legal possession or cultivation, everyone – in practice – can possess and cultivate without being able to prove themselves to be patients. In other words, so long as Canada’s physicians remain committed to shrugging-off any attempt to burden them with the role of distinguishing patients from non-patients, the government will not be able to create a law that prohibits non-patients from possessing or cultivating cannabis. So long as Atlas Shrugs, he – and all of the rest of us – will be free to toke.