R v Mernagh: ONCA Upholds Constitutionality of “Physician as Gatekeeper” Aspect of Medical Marihuana Laws

As Simmons and LaForme JJA point out at the beginning of this decision, R v Mernagh 2013 ONCA 67 represents the third time in just over ten years that the Ontario Court of Appeal (ONCA) has been asked to rule on the constitutionality of the government’s attempts to restrict the use of medical marihuana.

In 2000, R v Parker 49 OR (3d) 481, established that a blanket criminal prohibition on the possession and cultivation of marihuana was unconstitutional, as it did not provide an exemption for people who required the use of marihuana for medical purposes. As a result of this decision, the government passed the Marihuana Medical Access Regulations (MMAR), which allowed people to possess and produce marihuana for medical reasons, granted they could show proper documentation. The MMAR stipulates that physicians must act as “gatekeepers” to determine who should receive an exemption from criminal liability for possessing and/or producing marihuana. Therefore, people wishing to use medical marihuana must have a doctor sign a medical declaration on their behalf. In Hitzig v Canada 231 DLR (4th) 104, ONCA struck down some aspects of the MMAR, but upheld the constitutionality of the requirement that physicians act as gatekeepers to the supply of medical marihuana. However, Hitzig qualified the constitutionality of this requirement, noting that, “if in the future physician co-operation drops to the point that the medical exemption scheme becomes ineffective, this conclusion might have to be revisited” (para. 139).

The “physician as gatekeeper” requirement is what brings us to the present appeal. Mernagh is not a case that tests the constitutionality of the MMAR as a whole, but is exclusively concerned with whether the effect of the requirement to have a doctor sign a medical declaration renders the scheme ineffective (and therefore unconstitutional); Canadian physicians have decided, en masse, not to grant medical declarations to patients – even those who should qualify for them. As a result of this alleged boycott of the program, the applicant argued that the protections given to medical marijuana users by the MMAR are “illusory” and deprive him and others like him the right to liberty and security of the person in a matter that is contrary to the principles of fundamental justice. Thus, it would be in violation of s. 7 of the Charter.


Matthew Mernagh suffers from fibromyalgia, scoliosis, depression, and various other serious health conditions. He produces his own marihuana to help ease the pain he experiences as a result of these conditions, and argues that he therefore has a valid medical need to produce and use the drug. However, Mr. Mernagh had not been able to secure an exemption under the MMAR because he could not find a doctor willing to sign a medical declaration on his behalf.

In April of 2008 Mr. Mernagh was charged with producing marihuana contrary to s. 7(2)(b) of the Controlled Drugs and Substances Act. Mr. Mernagh challenged the charge, declaring that the combined effect of the CDSA and the MMAR violates his s. 7 Charter rights.

Mr. Mernagh was successful at trial. The trial judge concluded that the MMAR made legal access to marijuana “practically unattainable for those who desperately need it.” (para 10). The MMAR was struck down in its entirety and Mr. Mernagh was granted an exemption to both possess and produce marijuana and the charges against him under the CDSA were stayed. The Crown appealed to the ONCA on the grounds that the trial judge had made incorrect findings of fact, which ultimately led to an improper decision.

The Trial Judge’s Crucial Findings of Fact

The trial judge made four findings of fact, set out at paragraph 12 of the ONCA decision, that persuaded him that the MMAR violates s. 7 of the Charter:

  1. Mr. Mernagh and all of the other “patient witnesses” who provided evidence on the application were entitled to medical exemptions under the MMAR;
  2. Many of the physicians who dealt with the patient witnesses had acted in an “arbitrary and biased” manner in rejecting their requests for medical declarations;
  3. The “vast majority” of people entitled to exemptions under the MMAR have been unable to obtain them; and
  4. Canadian physicians have “massively boycotted” the MMAR, “completely undermin[ing]” the effectiveness of the program.

The Court of Appeal disagreed with the trial judge’s findings of fact, and found that the trial judge erred by:

  1. Wrongly interpreting Parker and Hitzig to recognize a constitutional “right” to use medical marihuana;
  2. Relying on anecdotal evidence and making findings not supported by the record to conclude that Mr. Mernagh and the patient witnesses qualified for exemptions under the MMAR; and
  3. Finding that the MMAR operate in such a way as to make medical exemptions practically unavailable, rendering the defence provided by the MMAR illusory.

The Significance of Parker: No Constitutional “Right” to Use Medical Marihuana

The first issue that the Court has with the trial judge’s decision makes up a small part of the overall decision, but makes an interesting clarification on the significance of Parker.

In the trial judge’s decision, he interpreted Parker as standing for the proposition that it is a “violation of s. 7 to deprive a person with a serious illness for which marihuana provides relief, of the right to use marihuana to treat his illness” (para 60). Simmons and LaForme JJA on the Court of Appeal note that this is an “inaccurate” interpretation of Parker, stating that what Parker actually represents is that, “given that marijuana can medically benefit some individuals, a blanket criminal prohibition on its use is unconstitutional” (para 61). In other words, there is no “automatic right” to use marihuana for people with serious illnesses. Therefore, for an applicant to challenge the constitutionality of the MMAR, they must bring evidence that his or her rights were actually impaired as a result of not being able to use marihuana for medical reasons.

It All Comes Down to the Evidence

The crux of the decision comes down to this: because Mr. Mernagh was arguing that he could not get a medical exemption under the MMAR as Canadian doctors were boycotting it, he had to first prove that he should have been able to access the exemption, but could not only because no doctor would sign a medical declaration. Mr. Mernagh’s failure to sufficiently establish this fact represents a key reason why this appeal succeeded.

The Court of Appeal notes that, in order to prove this key fact, Mr. Mernagh should have led evidence from a doctor who could confirm that he met the medical criteria for an exemption. While Mr. Mernagh did bring numerous patient witnesses to give evidence on the difficulties they faced in getting a doctor to sign a medical declaration, the court notes that he did not bring sufficient evidence to prove that he or any of these witnesses actually fit the criteria for an exemption. Without proof that he was eligible for an exemption under the impugned legislation, the fact that he could not get one meant very little in the eyes of the court.

There were other evidentiary issues that arose with the trial judge’s findings of fact that the appellate court scrutinized. With regard to the findings of fact that the doctors who Mr. Mernagh and the other patient witnesses dealt with acted in an “arbitrary and biased” manner, representing the “massive boycott” of the scheme by Canadian physicians, the Court of Appeal found that the evidence could not support these conclusions. In admitting the patient witnesses’ statements about how they were treated by their doctors, the trial judge noted that these hearsay statements should be allowed only for the fact that they were made, but not for the truth of their content. However, the trial judge used the statements as if they were the truth, thereby breaking his own hearsay ruling.

Laying the Groundwork for a New Trial

In the end, the appeal was allowed and a new trial was ordered. While this represents a blow to the many seriously ill people who have found that the MMAR is not working the way it should be, this decision quite clearly lays out what would need to be proven for a successful claim.

First, the threshold question of whether the applicant even meets the test for an exemption would have to be proven. Evidence would have to be brought that physicians were refusing to sign declarations for people who legitimately qualified for the exemption. Further, in Doherty JA’s concurring opinion, it is also noted that the lack of physician participation in the program would have to be tied to some sort of government action in order to fully make out the Charter violation.

Mernagh highlights the difficulties applicants face when dealing with the justice system with regard to something as serious as health care and treatment. Litigation is costly and time-consuming (Mr. Mernagh was charged almost 5 years ago). For this reason, it is unlikely that a person like Mr. Mernagh would choose to participate in this litigation, unless he genuinely felt that physicians were denying people access to medical medical marijuana. Unfortunately, the evidentiary basis was not present to support this conclusion in the case at hand.

This may therefore be a situation where political action will be more effective than judicial activism. With Colorado and Washington State recently legalizing the drug and four former Attorney Generals in British Columbia calling for legalization, it seems like only a matter of time before Canada must deal with this issue in the political, rather than judicial, realm. And if legalization happens, you can bet the courts will be busy with a whole other set of cases on the subject.









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