By Bradley Bouzane and Jordan Press | Published in the Vancouver Sun
When Nick Bala started chemotherapy, he asked his doctor for something to help with the nausea and vomiting that followed each treatment.
After about four months, Bala asked his doctor for a prescription for medicinal marijuana.
“I found that it made a huge difference to the nausea,” Bala said Wednesday. “For me and many other people, it made chemotherapy much more bearable. It’s very important this be made available to people who are suffering.”
An Ontario court ruling this week may make that reality sooner rather than later. An Ontario Superior Court judge found marijuana cultivation and usage laws unconstitutional and gave the federal government three months to respond to the decision.
But Bala isn’t leaping for joy just yet knowing that the government may appeal the ruling.
“This could be before the courts for years. It may have to go to a higher level of court,” said Bala, a law professor at Queen’s University in Kingston, Ont.
“I certainly hope we’re moving to the day when people who have a prescription can get access to medical marijuana,” he said. “This is one of those issues that has a moral quality to it when our politicians have been very slow to act. I think in this case it’s been most unfortunate.”
On Monday, the Ontario Superior Court declared the rules that govern medical marijuana access and the prohibitions laid out in sections 4 and 7 of the Controlled Drugs and Substances Act “constitutionally invalid and of no force and effect,” effectively paving the way for legalization.
If the government does not respond within 90 days with a successful delay or re-regulation of marijuana, the drug will be legal to possess and produce in Ontario, where the decision is binding.
The ruling stemmed from the constitutional challenge of Matthew Mernagh, a man who relies on medical marijuana to ease pain brought on by fibromyalgia, scoliosis, seizures and depression.
The Ontario Court of Appeal had previously recognized that to deprive someone with a serious illness of medical marijuana if it relieves their pain is a violation of the Charter of Rights. As a result, the federal government created the Marijuana Medical Access Regulations to let people legally get, possess and grow marijuana if they have a licence supported by a medical doctor.
Health Canada’s medical marijuana program regulates and approves the growers who patients can buy from and how much they’re legally allowed to use for their treatment.
As of April 1, more than 9,800 Canadians are legally permitted to possess medicinal marijuana, according to Health Canada. Nearly 5,600 people hold a personal grower’s licence and 1,837 people hold a licence to grow for one other person.
However, Justice Donald Taliano wrote in his decision on Monday that Mernagh — a well-known marijuana advocate who has been charged for possession and production of marijuana numerous times — has been unable to get a doctor to sign off on a medical marijuana licence.
Other patients run into the same problem, the judge noted in his ruling, and that forces some seriously ill people to obtain marijuana illegally.
“If I hadn’t got it the way I did, I would certainly go outside the system,” Bala said. “Even though it may mean breaking the law — and I do know people who have done that.”
The executive director of a Victoria-based distributor of medical marijuana said the ruling is a step forward on an issue the group has been advocating.
“The decision itself is wonderful,” said Steven Roberts of the Vancouver Island Compassion Society, which is authorized to distribute medical marijuana. “It’s a huge win.”
Roberts said because it’s a federal law, he hopes to see similar action roll across the country, although he said federal regulators likely will not remain quiet on the issue. He said an appeal of the decision is almost guaranteed.
Like Bala, marijuana activist Jodie Emery said that while the Ontario decision was a step in the right direction, she anticipates it will be a long time before actual change, if any, comes into effect.
Paul Lyodd, a licensed medical marijuana grower in Toronto was unconvinced the ruling would make the current regulatory framework easier to navigate.
“It still makes everything governing the system the same as it is. Nothing changed at all. What are they going to change when they come back?”