Layman's Summary of the Court of Appeal's Decision in R. v. Mernagh

February 1, 2013 by  

Ontario’s Court of Appeal released its 60 page decision today in the case of R. v. Mernagh. In layman terms, the decision can be summed up as follows:

1. Facts: The three judges of the court agreed that there was insufficient evidence for the trial judge to conclude that physicians were refusing to give eligible individuals the documentation they need to prove their exemption from Canada’s cannabis prohibition laws. Without sufficient evidence of such a boycott, there was no evidence that the government’s exemption system (the MMAR) was illusory. The court essentially said that, “logically”, for Mr. Mernagh to have won the appeal, he would have to have tendered medical evidence that he was eligible for exemption under the MMAR, but that doctors would not provide him with that medical evidence. How was Mr. Mernagh to collect the medical evidence that doctors refused to give him? The court didn’t elaborate on that, but it was certain that – in the absence of such evidence – there was no reason to assume that doctors are refusing to provide such evidence. In short: One must have evidence that X is true in order to prove that one cannot obtain evidence that X is true.

2. Law:Justice Doherty added a legal argument to the decision: even were a person to have compelling evidence that all physicians were refusing to provide medical evidence of eligibility for exemption, the resulting inability of people to get exempted would not render the regulations unconstitutional. The reason: only governmental barriers to getting an exemption could cause the regulation to be unconstitutional. Because physicians aren’t government, if physicians refuse to sign, that’s not a government decision. Put another way: if the doctor’s don’t play ball, that’s not the government’s fault, so the law cannot be said to be unconstitutional.

It is not normally the case that one can appeal findings of fact. That did not appear to be the case in this appeal concerning cannabis prohibition. The bulk of the decision to allow the appeal was based upon the finding that the trial judge got the facts wrong.

It is perhaps for this reason that Justice Doherty provided the legal conclusion he did. His legal analysis would certainly discourage one from bothering with trying to marshal the evidence the court said was lacking in this case. What would be the point, if even a rock solid proof that physicians are boycotting the federal exemption regulation would not cause the court to conclude that the regulation provides only illusory access to an exemption, and would not cause the court to strike down Canada’s cannabis prohibitions as unconstitutional?

The court allowed the crown’s appeal, quashed the trial judge’s orders, and ordered a new trial. It left it up to the Crown to decide whether or not to reinstate the charges against Mr. Mernagh.

I have provided a link to the text of the decision above, and encourage the reader to judge for himself whether my oh-so-brief summary of the decision captures its essence, or unintentionally misses its essence. Your informed comments are welcome.

Disclaimer: None of the above should be relied upon as legal advice. It is not legal advice, and is not provided as such.


11 Responses to “Layman's Summary of the Court of Appeal's Decision in R. v. Mernagh”

  1. Stephen clark on February 1st, 2013 11:38 pm

    This is BS I am in the same boat I am in pain I was lucky to find a doc to sign but that doc is now himself being railroaded and spending thousands to defend himself on BS legal crap.. I am lost for words I have steam comeing out my ears.. We as the people need to stand up. im with you Matt and if it takes sitting in a cell I say bring it the fck on..

  2. ray bradley on February 2nd, 2013 2:45 am

    The government is the problem because they did not advise the doctors of any trial work that the government was supposed to do under earlier orders by the court. You can see that doctors have used the lack of trial work performed by government as a reason to boycott signing people up. Rather than go to try find evidence that 400,000 people could not get easy access, just get proof from the medical association, or doctors that they would not sign the forms for lack of government work leading to their feeling both safe that the patient would be ok on that medication and also that their position as a doctor in a practise would be safe, no stigma, no hassles from peers, and that they would not feel like they would be sued any minute for it, and or if their insurance would cover such non convential medicine distribution… So Matt had to get busted, go to court, just so he could then have the first judge grant him permission to do as he wished by removing the control substances act threat , and in doing Matt could then test/trial out the medication himself for his own condition. Which he has now done for the time it took the court to deliberate over the ruling.. Seeing as this was a legal act, and not a recreational act of consumption, but a legal test trial.. and under guide from the court, regardless of if it was later deemed to be an error to let him do so, matt has now done the trial work for what? say fibromalgia and depression and he has even tested a number of strains to find the best ones which i am not sure if the government provides access to them as they did not do the trials to see which ones are good… they apparently use swag, which is another reason for doctors to not put their people under the program but motion people to the compassion centres, JUST like already had happened. Are you paying attention lawyers? now the government would have some trial work from Matt. This despite being a small amount of work, should have been used by government to advise doctors Canada over that such and such a does, done at home using such videos as on youtube by Matt, will result in ( insert review by Matt on what worked to reduce stabbing pain, help sleep, be less depressed, etc etc..
    So you see, the government has had the chance to conduct their trial work on Matt and also all the other patients they supply to, they could conduct interviews etc etc yet they have never done so, despite court ruling them to do this because the doctors said they wanted government to do this before they would be willing to send people to the program.

  3. ray bradley on February 2nd, 2013 2:57 am

    and yes Paul, your summary looks spot on. Now to get the evidence that govt still, after all these years has not done the trials and take that to the supreme court. I think you might find that doctors were prepared to boycott the program not long ago in the media if these things were not adressed. they did not want to be gatekeepers unless they were made by government to feel safer to do so. it would be archived all over the internet and came around the time that government wanted to remove patient produce at home licenses. also i think you could look into trying to get all the submissions made by patients and other potential patients who complained over the new proposal. not just the govt run down/conclusions, but the entire pile of submissions in raw form, with peoples identities removed.. i think you might find these papers are legal proof the government has made the program hard for patients to do all the things they need to to gain their right to a drug that, lets them face it, is no longer a new non trialled drug. theyve had ten years or something of opportunity to monitor patients use and effects etc… and also ten odd years to run the trials they were told were needed. and its not just trials, the doctors wanted other things to be done as well. good luck.

  4. Bob Dillman on February 2nd, 2013 7:08 am

    I am a former law enforcement officer , and if I can ask a question. why is it ok for the self regulating law courts allowed to make this decision.
    the dept of justice profits from prohibition.
    they feed their budgets with patients and with occasional users , and growers are their enemy. or friend , because when they raid they get bonuses ,( actually its overtime) just in time for Christmas shopping.
    then of course the justice system makes their budgets bloom. One person arrested gets counted on no less than 4 budgets before they even step into court. then they say no, you can be arrested for trying to be healthy. which is using over 500million dollars annually for adverts( promotional material and paid anti cannabis information.) alone for prohibition.
    why would they do that and cover up the uses of cannabis?
    easy it makes them money, and it takes from the poor and the sick.

    and politics paved the way here to tyranny, and a whole lot of sick people.
    and it all has to do with apathy, and distraction.
    so here’s the next question. when the RCMP or police raid your home for wanting to heal, isnt that a threat to your rights and life and liberty?
    does that really matter to you? is it that important to be free and not lied to and think you are free?

  5. ray bradley on February 2nd, 2013 8:32 am

    Ottawa, Ontario: Federal funding that had been earmarked to pay for clinical research on the therapeutic use of cannabis will no longer be available to investigators, under budget cuts announced this week by Canadian government officials.

    The $7.5 million dollar Medical Marijuana Research Program (MMRP) , initially established in 1999, was axed as part of a government proposal to eliminate $2 billion in federal programs.

    So now you can show that the government allowed the system to not work properly by failing to provide the trials needed for because they cut the funding.

  6. joe on February 2nd, 2013 12:43 pm

    Time to over grow the Government once and for all.

  7. joe on February 2nd, 2013 12:46 pm

    The Government are a criminal orginization who are lead by big banks that own big pharma. They will not stop us we will over grow them we have done it for 80 years and the end is near for governments are going out the door next election.

  8. joe on February 2nd, 2013 12:49 pm

    THC is a cancer cure and they will not surpress it for the people are waking up.
    This is a war on cancer cure for they are are afriad to death.
    Marijuana in a oil form is the cancer cure.

  9. Mike on February 2nd, 2013 6:21 pm

    I’m a medical user and my doctor in Sask. is having a terrible time but I have a question.

    Don’t we as Canadians have some type of protection against being subjected to arbitrary laws? I see everyone getting nowhere fighting for our right to have pot, but shouldn’t someone somewhere have to show there is a need or public desire for laws.

    It just seems stupid to me.

  10. Victims of the War on February 3rd, 2013 2:55 am

    Wow! You and Matt have done a great job. I love Dillman. How can the Justice department make an unbiased opinion. Looks to me they took extra time with Gov’t influence to tear apart their co-worker. By turning the onus on the medical profession they have successfully ditched the mmar. I’m still questioning that these doctors are qualified to make the dicisions of who sould be legal or not. This goes against the very principles of the medicinal practice and pits caregiver against patient. Through searching for my mmar exemption, I found that I was not just turned down flatly, it is now very difficult to get proper medical attention for my wife and myself. I saw on the mmap release Jan 27, they estimate growth to approx. 300000 in ten years. I guess thats unless they can catch them first.
    I don’t think it’s a matter of health for the individual as much as the health of a nation. With grossly exagerated manditory sentencing in place, nobody is safe, the bread winner of the family is taken leaving the family to fend for themselves. They take children from their families . When they busted us, they held my wife hostage. I was told if I took the plea I’d get house arrest, if I didn’t my wife would probably go to jail. Is this not forced plea? Safe Streets bullshit. Sound like corruption to me. My life was good until organized crime came.

  11. George Lenard on February 3rd, 2013 11:18 am

    Allan Rock made it very clear, in his initial implementation of Canada’s medical marijuana laws, And I state this simply, if marijuana “enhances the quality of life” (he was speaking of those very ill) then the government could not deny the use of marijuana for medicinal purposes. Yet this court of appeal has done that. Now there seems to a legal conflict for doctors who sign a medical marijuana exemption if the government is going to pursue criminal charges for those who will sign but charge a fee for doing so. The forms used by Health Canada and the list of qualifying illnesses on that form if filled out by every one in Canada, would give 75% of Canada’s population an exemption. Harper’s stance is that of an ideological denial, that places his political and religious beliefs above the health a welfare of those who do qualify for a medical marijuana exemption! The new Harper has now decided that he will take the individual medical marijuana growers exemptions are off table and give that responsibility to some of his dearest and best political supporters! The ugly head of corruption in the Harper government as stooped so low that it will try to make those honored with a license rich from the backs of Canada’s ill!

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