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R. v. Mernagh, 2011 ONSC 2121 (CanLII)


[1]      Matthew Mernagh is a seriously ill young man. He suffers from the debilitating effects of fibromyalgia, scoliosis, seizures and depression. He lives with constant pain. Prescription medications have failed to provide adequate relief for his condition, and in many ways, they create additional problems. Marihuana, used medicinally, eases his symptoms and allows him to function. Mr. Mernagh cultivates his own supply.

[2]      The Ontario Court of Appeal has recognized that it is a violation of s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982(U.K.), 1982, c. 11, to deprive a person with a serious illness for which marihuana provides relief, of the right to use marihuana to treat his illness (R. v. Parker, 146 C.C.C. (3d) 193).  As a result, the government has created a legislative framework, the Marihuana Medical Access Regulations, SOR/2001-227 [MMAR], to allow such individuals to legally access, possess, and cultivate marihuana for medicinal purposes by obtaining a licence to do so. A licence is obtained by completing an application which includes the signed declaration of a supporting medical doctor.

[3]      However, Mr. Mernagh has been unable to find a doctor to sign his declaration.  As a result, he has been unable to obtain a licence to possess or cultivate marihuana under the regulations. Therefore, despite his undisputed and serious illness, and despite the relief he gets from the medicinal use of marihuana, Mr. Mernagh’s cultivation of marihuana for his personal, medical use is illegal. He comes before this court because he stands charged with the offence of production of marihuana, contrary to section s.7(2)(b) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA].

[4]      As an individual whose liberty is at risk as a result of pursuing his medical treatment of choice Mr. Mernagh contends that this prosecution violates his rights of liberty and security of the person under s. 7 of the Charter.  He argues that the combined effect of the MMAR and the provisions relating to marihuana under the CDSA are unconstitutional and he seeks a declaration of invalidity with respect to the offences of possession, cultivation and trafficking in marihuana contained in the CDSA.


[248]   The overarching problem with the MMAR is that they require physicians, who have taken an oath to do no harm, to endorse the use of a largely untested and unapproved drug without any safeguards.


[262]   The lack of a viable exemption to the offence of production of marihuana contrary to s. 7(2)(b) of the CDSA deprives Mr. Mernagh of his s. 7 right to liberty and security of the person in a manner that does not accord with principles of fundamental justice.



[345]   For the foregoing reasons, this court declares that:

1.   The Marihuana Medical Access Regulations, SOR/2001-226 and the prohibitions against the possession and production of cannabis (marihuana) contained in sections 4 and 7 respectively of the Controlled Drugs and Substances Act, S.C. 1996, C. 19 are constitutionally invalid and of no force and effect;

2.   This declaration of invalidity is suspended for a period of three (3) months;

3.   The criminal charge against the applicant is permanently stayed;

4.   The applicant is granted a personal exemption to possess and/or produce cannabis (marihuana) during the above noted period of suspension.

Jim O'Neil, LL.B.

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