



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mernagh, 2013
    ONCA 67

DATE: 20130201

DOCKET: C53583

Doherty, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Matthew Mernagh

Respondent

Croft Michaelson and Amber Pashuk, for the appellant

Paul Lewin, for the respondent

Ryan Peck and Paul Burstein, for the interveners the
    Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the HIV &
    AIDS Legal Clinic Ontario

Ryan Dalziel, Emily Lapper and Jessica Orkin, for the
    intervener the British Columbia Civil Liberties Association

Jean-Marc Leclerc and Christi Hunter, for the intervener
    the Canadian Civil Liberties Association

Heard: May 7 and 8, 2012

On appeal from the order of Justice Donald J. Taliano of
    the Superior Court of Justice, dated April 11, 2011, with reasons reported at
    2011 ONSC 2121, 269 C.C.C. (3d) 297.

Simmons and LaForme JJ.A.:

A.

Overview

[1]

This
    is the third time in just over a decade that this court has dealt with the
    issue of medical marihuana. In all three cases, the court has been asked to
    decide whether Parliaments attempts to restrict the use of marihuana for
    medical purposes are constitutional.

[2]

In
    the first case,
R. v. Parker
(2000), 49 O.R. (3d) 481, this court held
    that a blanket criminal prohibition on the possession and cultivation of
    marihuana was unconstitutional because it did not provide an exemption for
    people who used marihuana for valid medical purposes.

[3]

Parliament
    responded to Parker by introducing the
Marihuana Medical Access Regulations
,
    SOR/2001-227, as amended (
MMAR
). The
MMAR
allow individuals
    to possess, and in some cases produce, marihuana for medical purposes if they
    obtain proper medical documentation.

[4]

The
MMAR
sparked a second round of constitutional litigation on the
    grounds that, among other things, the criteria for obtaining a medical
    exemption to use marihuana were too onerous.

[5]

In
Hitzig v. Canada
(2003), 231 D.L.R. (4th) 104, leave to appeal dismissed
    [2004] S.C.C.A. No. 5, this court struck down some aspects of the
MMAR
,
    but it refused to declare the scheme unconstitutional in its entirety. In
    particular, the court upheld the constitutionality of the requirement that
    physicians act as gatekeepers to determine who should receive an exemption
    from criminal liability for possessing and/or producing marihuana.

[6]

This
    brings us to the present appeal.

[7]

In
    April 2008, the respondent, Matthew Mernagh, was charged with producing
    marihuana contrary to s. 7(2)(b) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19 (
CDSA
). At the outset of his trial, he applied for
    a declaration that the combined effect of ss. 4 and 7 of the
CDSA
(the
    offences of possessing and producing marihuana, respectively) and the
MMAR
violates his rights under s. 7 of the
Canadian Charter of Rights and
    Freedoms
.

[8]

According
    to Mr. Mernagh, he suffers from fibromyalgia, scoliosis, epilepsy and
    depression. He believes that marihuana alleviates his debilitating pain and
    helps prevent seizures. He therefore asserts that he has a valid medical need
    to produce and use marihuana and that he is entitled to a constitutional
    exemption from the criminal prohibition against those activities. The problem,
    he says, is that he has been unable to obtain an exemption under the
MMAR
because no physician will sign his medical declaration.

[9]

On
    the
Charter
application, Mr. Mernagh did not argue that the
MMAR
are unconstitutional as they are drafted.
[1]
Rather, he argued that the
MMAR
are unconstitutional as they are
    implemented because physicians have decided
en masse
not to
    participate in the scheme. Relying on
R. v. Morgentaler
, [1988] 1
    S.C.R. 30, Mr. Mernagh claims that the protection accorded by the
MMAR
has
    proven to be illusory, depriving him and others like him of the right to
    liberty and security of the person in a manner that is contrary to the
    principles of fundamental justice.

[10]

The trial judge
    agreed with Mr. Mernagh, concluding that the
MMAR
made legal access to
    medical marihuana practically unattainable for those who desperately need it.
    As a result, the trial judge struck down the
MMAR
in their entirety.

[11]

Since this
    declaration of invalidity left no legislative scheme in place for people to
    obtain exemptions from the prohibitions in ss. 4 and 7 of the
CDSA
,
    the trial judge also declared those sections to be of no force and effect. He
    suspended the declarations of invalidity for three months; those suspensions
    were later extended pending this courts decision on the Crowns appeal. He
    also granted Mr. Mernagh a personal exemption to both possess and produce
    marihuana during the period of the suspension. Finally, the trial judge
    permanently stayed the charges against Mr. Mernagh.

[12]

In concluding
    that the
MMAR
violated s. 7 of the
Charter
, the trial judge
    made four crucial findings of fact that the Crown challenges on appeal:

·

Mr. Mernagh and all of the other patient witnesses who provided
    evidence on the application were entitled to medical exemptions under the
MMAR
;

·

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;

·

the vast majority of people entitled to exemptions under the
MMAR
have been unable to obtain them; and

·

Canadian physicians have massively boycotted the
MMAR
,
    completely undermin[ing] the effectiveness of the program.

[13]

As we will
    explain, in our view 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.


B.

Background

The Evolution of the
MMAR

[14]

This case cannot
    properly be considered in isolation.  As we have just explained, it is preceded
    by earlier cases that addressed the constitutionality of access to marihuana
    for medical purposes, and must be considered against that background. Moreover,
    as the record in this case reveals, the
MMAR
have been amended since
    they were first introduced, both as a result of this court's decision in
Hitzig
and as a result of input from interested stakeholders  and it is necessary to
    consider their evolution.

[15]

As a starting
    point, it is important to recognize that marihuana is both a drug as defined
    in s. 2 of the
Food and Drugs Act
, R.S.C. 1985, c. F-27 (
FDA
)
    and a controlled substance as defined in s. 2 of the
CDSA
.
    Currently, marihuana is an unapproved drug that has not undergone the standard
    processes for assessing the safety, efficacy and quality of new therapeutic
    products. As such, its sale in Canada for medical purposes is subject not only
    to the criminal prohibitions in the
CDSA
, but also to the restrictions
    in the
FDA
aimed at regulating therapeutic products.

[16]

The legislative
    history of the exemption from criminal liability for the medical use of
    marihuana prior to
Hitzig
is set out in
Hitzig
at paras.
    24-73, and will not be repeated here.

[17]

In 2003, the
MMAR
were challenged in
Hitzig
. This court held that the schemes failure
    to provide a legal supply of marihuana and one of its eligibility requirements
    were unconstitutional. But the court specifically upheld the constitutionality
    of the physician as gatekeeper requirement, which is at the heart of the
    present appeal. The court explained, at para. 139:

Whether marihuana will mitigate the particular symptom of an
    individual with a particular serious medical condition is fundamentally a
    medical question. Just as physicians are relied on to determine the need for prescription
    drugs, it is reasonable for the state to require the medical opinion of
    physicians here, particularly given that this drug is untested.

[18]

The court went
    on to acknowledge that some physicians organizations had objected to this
    gatekeeping role. However, it accepted the application judges finding that a
    sufficient number of physicians were participating in the scheme that it
    could not be said that exemptions were practically unavailable.

[19]

However, the
    court was careful to limit its conclusion to the evidentiary record in that
    case, noting, at para. 139: [I]f in the future physician co-operation drops to
    the point that the medical exemption scheme becomes ineffective, this conclusion
    might have to be revisited.

[20]

Similarly, at
    para. 143, the court noted that while it did not offend s. 7 of the
Charter
to require that a specialist (as opposed to a general practitioner) must
    sign off on declarations for certain types of illnesses, this conclusion could
    be revisited if it proved over time to be a significant practical impediment.

[21]

Following
Hitzig
,
    Health Canada made several amendments to the
MMAR
both to conform to
    this courts directions and to address various concerns identified by
    stakeholders.
[2]
The overall effect of these amendments was to make it easier for people to
    obtain medical declarations. For example:

·

Patients suffering from symptoms listed in the former category
    2
[3]
could obtain declarations from general practitioners, provided that the
    patients case had been assessed by a specialist who concurred that
    conventional treatments were ineffective or medically inappropriate, and who
    was aware that marihuana was being considered as an alternative treatment;

·

The new category 2 was redefined to capture any debilitating
    symptom associated with a medical condition, or its treatment, that did not
    fall within category 1; and

·

For either category, the declarant physician was no longer
    required to recommend a daily dosage, but only to indicate the amount of
    marihuana that the patient proposed to use.  Also, the physician was no longer
    required to indicate that the benefits of marihuana use outweighed the risks,
    or that marihuana would mitigate the symptoms of the applicant patient.

[22]

These amendments
    came into effect in 2005 and were in force at the time Mr. Mernagh was charged
    under the
CDSA
.

C.

THE PRESENT CASE

(1)

The
Charter

Application

[23]

In his
Charter
application, Mr. Mernagh attempted to show that he needed to use marihuana for
    medical purposes but that he was unable to get a physician to sign a medical
    declaration because of a widespread lack of co-operation on the part of
    Canadian doctors with the
MMAR
.

[24]

In support of
    his application, Mr. Mernagh filed affidavits from 19 people who live in different
    parts of Canada and who wanted to use marihuana to treat their medical
    symptoms. Mr. Mernagh, two of the affiants, and one other individual also gave
viva
    voce
evidence on the application. Mr. Mernagh called two expert witnesses
    and also filed certain documentary evidence which we will refer to below.

(a)

Mr. Mernaghs
    Evidence

[25]

Mr. Mernagh was
    37 years old at the time of his application. He testified that he began
    experiencing severe pain in 1991 when he was 18 years old. After a number of
    tests, he was diagnosed with fibromyalgia, a rare condition about which little
    was known at the time. He was prescribed painkillers such as Demerol, and,
    among other treatments, undertook acupuncture, meditation and physiotherapy.
    The Demerol relieved his pain but left him zombie-like and unable to do much
    more than sleep. In later years, Mr. Mernagh experienced problems from
    scoliosis and developed a seizure disorder. As a result of his pain, Mr.
    Mernagh also experienced depression.

[26]

During his
    second year of college, Mr. Mernagh tried marihuana. He found that although
    marihuana did not relieve his pain as effectively as Demerol, it provided good
    pain relief without the side effects. In his words, marihuana made him
    functional.

[27]

In 1996, Mr.
    Mernagh began seeing a physician at a walk-in clinic in Toronto, who, it
    appears, became his primary physician.  She supported his application to the
    Medical Marihuana Resource Centre, which would later become the Toronto
    Compassion Centre. Mr. Mernagh obtained marihuana through this centre for some
    time.

[28]

In late 2002 and
    early 2003, Mr. Mernagh was quite ill. He became concerned about his ability to
    access medical marihuana and asked the physician he had been seeing for a
MMAR
medical declaration. According to Mr. Mernagh, the physician was supportive of
    the idea but told him he would have to see a specialist, as was required under
    the
MMAR
at that time. Mr. Mernagh did not follow up on this
    recommendation. In his evidence on the application he explained that, at the
    time, he let the issue go because he was preoccupied with school and with
    applying to the Ontario Disability Support Program.

[29]

Shortly
    thereafter, the physician Mr. Mernagh had been seeing closed her practice to
    start a family. According to Mr. Mernagh, she tried, without success, to find
    him another physician in his hometown of St. Catharines. Mr. Mernagh also tried
    to find a physician by calling local hospitals but was told that there were no
    general practitioners accepting new patients. He says he was advised to use clinics
    if he needed medical care. It does not appear that Mr. Mernagh asked any of the
    physicians he saw between 2003-2005 to sign a medical declaration.

[30]

In 2006, Mr.
    Mernagh went to a doctor/patient meet and greet in an effort to find a new
    family physician. After explaining to the physician that he suffered from
    fibromyalgia and scoliosis and that he treated his symptoms with marihuana, the
    physician said she would prescribe morphine instead. Mr. Mernagh testified that
    he was not interested in a prescription for morphine at that point in his life,
    or, for that matter, in any other prescription painkiller. He therefore decided
    that he and this prospective physician would not work well together.

[31]

In April 2007,
    Mr. Mernagh consulted another physician described by friends as likely to be
    receptive to someone who used medical marihuana. This physician did not sign
    the
MMAR
declaration, but did write a letter addressed to whom it may
    concern advising that Mr. Mernagh had made a dramatic improvement with his medical
    problems. The letter concluded: I fully support Mr. Mernagh using cannabis to
    keep his problems under control.

[32]

Although the
    physician did not explain why he would not sign the medical declaration, Mr.
    Mernagh believes it was because he (Mr. Mernagh) suffers from depression.
[4]
Mr. Mernagh did not call this physician as a witness on his
Charter
application
    to explain why he did not sign a medical declaration.

[33]

As we stated at
    the outset, in April 2008, Mr. Mernagh was charged with producing marihuana
    contrary to the
CDSA
.

[34]

On his
    application challenging the operation of the
MMAR
, Mr. Mernagh did not
    lead any medical evidence to establish that he actually met the medical
    criteria for obtaining an exemption under the
MMAR
.

(b)

The Patient
    Witnesses Evidence

[35]

Mr. Mernagh
    called other people to testify about the problems they encountered obtaining medical
    exemptions. In their affidavits and oral evidence, the patient witnesses
    described their various illnesses and symptoms, the relief they experienced or
    hoped to experience from taking marihuana, and the efforts they had made to
    find physicians who would sign the medical declarations required by the
MMAR
in order to apply for a medical exemption.  Some of those who had succeeded in
    having declarations signed described delays while Health Canada considered
    their applications. Some described hardships suffered by resorting to criminal
    sources of marihuana. Others told of their relief when they did get
    declarations signed.

[36]

Some of the
    patient affidavits described their physicians statements or conduct in
    refusing to sign the medical declarations.  The trial judge ruled these hearsay
    statements to be admissible for the fact that they were made, but not the truth
    of their contents.  This ruling was not appealed.

[37]

Mr. Mernagh did
    not lead any medical evidence to establish that the patient witnesses who had not
    succeeded in obtaining medical declarations qualified for exemptions under the
MMAR
.

(c)

The Expert Evidence
    Led by Mr. Mernagh

[38]

Dr. Joel Lexchin
    testified as an expert witness on the influence of the pharmaceutical industry
    on physicians prescribing practices and how this might relate to the role of
    physicians as facilitators of the
MMAR
defence.  He testified that the
    majority of physicians receive visits from pharmaceutical industry
    representatives, who provide samples of drugs and educate them about their use.
    Physicians only prescribe those drugs that have been approved pursuant to a
    process that includes research, clinical trials and government approval.

[39]

Dr. David
    Rosenbloom testified as an expert witness on the effects of prescription drugs,
    the use and abuse of prescription opioids, and Canadas methadone program and
    registry. He testified that prescription narcotics, the conventional treatment
    for chronic pain, can cause a variety of undesirable and dangerous side
    effects.

(d)

Other Evidence
    Adduced by Mr. Mernagh

[40]

Mr. Mernagh also
    filed certain other documentary and affidavit evidence on consent. This
    evidence included transcripts from another proceeding in which the regulation
    of medical marihuana was at issue. Included with the transcripts were two reports
    co-authored by an HIV/AIDS expert, epidemiologist Lynne Belle-Isle, who
    testified as an expert witness at the trial. The reports were dated 2006 and
    2007, respectively.

[41]

In addition, a
    copy of the
Report of the Senate Special Committee on Illegal Drugs:
    Cannabis
(Toronto: University of Toronto Press, 2003) (The Nolin
    Report), was filed on consent.
[5]


(e)

The Evidence Led by
    the Crown

[42]

In reply to Mr.
    Mernaghs evidence, the Crown filed affidavits from Jeannine Ritchot, Director,
    Bureau of Medical Cannabis, Office of Controlled Substances and Tobacco
    Directorate, Health Canada, and made her available for cross-examination. In
    addition, the Crown filed affidavits from Ronald Denault, Manager of the
    Marihuana Medical Access Division, Office of Controlled Substances, Health
    Canada.

[43]

Among other
    things, the Crown affidavits set out evidence about physicians participation
    in medical marihuana access schemes between 1998 and 2010 and about the number
    of authorizations to possess (ATPs) that were issued during this period.

[44]

This evidence
    indicated that in 1998 (the first year that the Minister of Health issued an
    exemption permitting possession of marihuana under s. 56 of the
CDSA
),
    only four physicians signed medical declarations.  In 2003, the year that
Hitzig
was decided, 499 physicians signed medical declarations. After the amendments
    to the
MMAR
were passed in 2005, the number of physicians
    participating increased each year. This evidence was conveniently summarized in
    the appellants factum in chart form, which is reproduced here:



Year

Number of medical practitioners who signed declarations



1998

4



1999

102



2000

368



2001

727



2002

456



2003

499



2004

509



2005

754



2006

1,139



2007

1,345



2008

1,887



2009

2,698



2010 (to Oct. 20)

2,351



[45]

The Crown's
    evidence also indicated that, in 2001, 88 ATPs under the
MMAR
were
    issued nationwide. By 2009, that number had increased to 4,876, including 2,068
    first-time ATPs. From 2001 to October 20, 2010, a total of 20,052 ATPs had been
    issued. This figure represents 80% of all applications for exemptions submitted
    to Health Canada within that timeframe. At the very least, the Crown submitted,
    this indicates that the regime is functional.

D.

The trial judge's Reasons

[46]

It was common
    ground on the application that the
MMAR
constituted a threshold
    violation of Mr. Mernaghs right to liberty and security of the person under s.
    7 of the
Charter
. The issue to be decided was whether the deprivation
    of Mr. Mernaghs rights accorded with the principles of fundamental justice.

[47]

The trial judge
    framed the constitutional questions as: Has a lack of physician participation
    rendered the
MMAR
scheme ineffective and the related defence
    illusory?  If so, is this a result of the legislation?

[48]

In answering the
    first question, the trial judge concluded that there were significant problems
    in obtaining medical declarations necessary to obtain exemptions under the
MMAR
.

[49]

At para. 160 of
    his reasons, he found that many of the physicians named in the patient
    witnesses affidavits were arbitrary and biased in rejecting their patients
    requests for medical declarations without turning their minds to the criteria
    in the
MMAR
as the basis for their refusals. He cited the stigma associated
    with marihuana as a reason for this attitude.

[50]

At paras.
    205-207, the trial judge found that all of the patient witnesses ought to
    qualify for an exemption, yet the majority of them had been unable to find
    physicians willing to sign medical declarations on their behalf. The 21 patient
    witnesses were from 7 different provinces. While their evidence was anecdotal
    in nature, the trial judge found it to be representative of the experiences of
    similarly situated individuals across the nation and concluded that this access
    problem was Canada-wide.

[51]

Despite the
    Crowns evidence that the number of medical declarations was increasing
    annually, the trial judge concluded that the number of approved applications
    was a trickle compared to the demand. At para. 214, he found as a fact that
    Canadian physicians have massively boycotted the
MMAR
and that their
    refusal completely undermines the effectiveness of the program. He concluded
    on this point, at para. 230:

[L]egal access to medical marihuana is practically unattainable
    for those who desperately need it. The defence to the possession and
    cultivation of marihuana purportedly offered by the
MMAR
is illusory
    and does not accord with principles of fundamental justice.

[52]

In answering the
    second question, the trial judge concluded that the reason the
MMAR
scheme
    is ineffective is because the regulations blindly delegate the gatekeeping role
    to physicians, who have chosen not to accept the responsibility that Parliament
    thrust onto them. He held that this was the case even after the 2005 amendments
    which were intended to address the professions concerns.

[53]

The trial judge
    acknowledged that in
Hitzig
, this court upheld the constitutionality
    of the physician as gatekeeper under the
MMAR.
Despite this, the trial
    judge held, at para. 248, that the overwhelming 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.

[54]

Having conferred
    on physicians the sole responsibility for the therapeutic distribution of an
    untested drug, the trial judge was of the view that it was incumbent on
    Parliament to ensure that they were willing and able to take on the role. He
    explained, at para. 259:

The deficiency with the legislation is not that doctors were
    appointed as gatekeepers, but the fact that there were no steps taken to obtain
    the support, co-operation and participation of the medical profession as
    gatekeepers before or after they were so designated.

[55]

The trial judge
    concluded, at para. 262, that the lack of a viable exemption to the offence
    of production of marihuana violated s. 7 of the
Charter
. Not
    surprisingly, he went on to hold that the
MMAR
could not be saved
    under     s. 1.

[56]

In the result,
    the trial judge struck down the
MMAR
in their entirety, pursuant to s.
    52 of the
Constitution Act, 1982
.  As we explained at the outset of
    these reasons, this declaration of invalidity was initially suspended by the trial
    judge and was later extended by this court pending the outcome of the Crowns
    appeal. The criminal charge against Mr. Mernagh was permanently stayed pursuant
    to s. 24(1) of the
Charter
and he was granted a personal exemption to both
    possess and produce marihuana during the period of suspension.

E.

issues

[57]

On appeal, the
    Crown submits that the trial judge erred in concluding that the
MMAR
are
    unconstitutional. It submits that the trial judge erred in his factual
    findings, relied on inadmissible evidence and had no basis to conclude that
    physicians in Canada have boycotted the
MMAR
.

[58]

Mr. Mernagh and
    the interveners submit that, on the evidence adduced on the application, it is
    clear that requiring physicians to act as gatekeepers for the use of medical
    marihuana has created a major impediment to obtaining exemptions under the
MMAR
. 
    Because of this, they argue, the exemption scheme provided by the
MMAR
is illusory and the trial judge was correct in finding that to be the case.

F.

analysis

(1)

Sufficiency of the
    Record

[59]

Given that this
    appeal turns on the sufficiency of the record, it is important to clarify the
    nature and significance of the evidence required to establish a
Charter
breach in a case like this.

[60]

The trial judge
    stated at para. 2 of his reasons that this court had recognized in
Parker
that it was a violation of s. 7 of the
Charter
to deprive a person
    with a serious illness for which marihuana provides relief, of the right to use
    marihuana to treat his illness.  With respect, this is an inaccurate
    interpretation of
Parker
that, unfortunately, appears to have
    influenced the trial judges subsequent legal analysis.

[61]

The correct
    proposition expressed in
Parker
is that, given that marihuana can
    medically benefit some individuals, a blanket criminal prohibition on its use
    is unconstitutional. This court did not hold that serious illness gives rise to
    an automatic right to use marihuana, and
Parker
did not remove the
    requirement that the applicant lead evidence that his or her rights were
    impaired.

[62]

As we have said,
    Mr. Mernagh did not argue that the limitation on his rights created by the
MMAR
as they are drafted

renders the scheme unconstitutional. Rather, he
    argued that the medical exemption provided by the
MMAR
was practically
    unavailable to him and others like him who require marihuana to relieve their
    symptoms. Logically, then, to establish a breach of s. 7 of the
Charter
,
    Mr. Mernagh was first required to establish that he (or at least one of the
    patient witnesses who were unable to obtain medical declarations) was entitled
    to a medical exemption under the
MMAR
. Further, to establish that he
    was entitled to a medical exemption under the
MMAR
, Mr. Mernagh had to
    do more than report that he has a serious illness and assert that his symptoms
    are relieved by the use of marihuana. Rather, as we will explain more fully
    below, he had to lead evidence from a physician who could confirm that Mr.
    Mernagh met the medical criteria for an exemption.


(a)

The Limited Scope for
    Anecdotal Evidence

[63]

Mr. Mernagh,
    both on the application and on this appeal, fundamentally misconceived the
    nature of the evidentiary foundation required in a case of this kind. He relies
    on the passage at para. 9 of
Hitzig
, which states: [T]he courts,
    relying on evidence of individuals personal experiences and anecdotal evidence
    have determined that some seriously ill persons derive substantial medical
    benefit from the use of marihuana.  He wrongly takes this to mean that
    anecdotal evidence of serious illness, and the relief of symptoms through
    marihuana use, is sufficient to establish a persons own medical need to use
    marihuana.  This interpretation misunderstands the scope for anecdotal evidence
    in
Charter
analysis and over-reads the passage in
Hitzig
.

[64]

The reference to
    anecdotal evidence in
Hitzig
recognizes nothing more than that for the
    purposes of judicial fact-finding, anecdotal evidence has been used to
    establish the general proposition that marihuana can have some medical benefit
    for some people.  Anecdotal evidence, in a sense, compensates for scientific evidence
    that might otherwise have been used for that purpose. In the absence of more
    and better studies about the therapeutic value of marihuana, anecdotal evidence
    may be a reasonable substitute.

[65]

Mr. Mernaghs
    lay evidence was sufficient to show that he was not a recreational user and
    that his s. 7 right to security of the person was engaged.
[6]
However, it was not sufficient to show that he fit the medical criteria in the
MMAR
,
    and was therefore entitled to a physicians declaration in support of an
    application for an exemption.

(b)

The Requirement for Evidence Sufficient to Establish a
Charter
Breach in a Given Case

[66]

The parties
    addressed the evidentiary requirements on a
Charter
application of
    this kind in their submissions on appeal. Mr. Mernagh argues that requiring
    every litigant to produce a record as detailed as that in
Parker
in
    every case would be too onerous a burden. In
Parker
, the court
    accepted that marihuana has medical uses on the basis of a considerable body of
    scientific evidence, legislative reports, clinical studies, research reports
    and
viva voce
medical opinion evidence. We agree that a
Parker
-style
    record is not always required, but as discussed above, only as it pertains to
    the general proposition that marihuana has some medical benefit.

[67]

Each litigant
    seeking to exempt himself or herself from criminal liability by arguing a
    medical need to use marihuana must, nevertheless, establish that individual
    need on a case-by-case basis.

[68]

In contrast to
    Mr. Mernagh, in Mr. Parkers case he did not simply present anecdotal evidence
    that he was seriously ill and that marihuana alleviated his symptoms.  Mr.
    Parkers evidence about his individual condition established that: he had lived
    with his epilepsy for many years; he had treated it through highly invasive
    surgery; and he continued to take conventional medication notwithstanding the
    side effects.  His evidence included the opinions of his physicians on the
    severe side effects of his own prescription medications, and that it was
    medically necessary for him to use marihuana for optimal control of his
    life-threatening seizures.

[69]

Mr. Parker also
    offered as evidence the results of a research study in which he was a
    participant to support a reasonable explanation for why the prescription drug
    Marinol  a synthetic version of a marihuana constituent  was not an effective
    form of treatment for him.  In short, this court found that there was ample
    evidence from which the trial judge in Mr. Parkers case could conclude that he
    was not asserting a mere preference for an illegal treatment over a legal one.

[70]

In
Hitzig
there was no analysis of what evidence was sufficient to establish a medical
    need for marihuana. Unlike this case,
Hitzig
was a civil case in which
    the applicants sought a declaration of invalidity under s. 52 of the Constitution.
    None of the applicants was facing criminal charges. In that context, the Crown
    conceded that the
Hitzig
applicants  four of whom already had
    licences to possess marihuana  included persons with such a need.

[71]

The trial judge
    in this case appears to be under the impression that the trial Crown made a
    concession similar to the concession made in
Hitzig
.  With respect,
    however, our reading of the record and the transcript of the application does
    not disclose such a concession, nor was such a concession made in this court.

[72]

Unfortunately,
    after holding that a threshold violation was conceded, the trial judge
    overlooked a crucial portion of the analysis: that is, whether Mr. Mernagh had
    established on a balance of probabilities that either he, or at least one of
    the patient witnesses who had not obtained a medical declaration, was entitled
    to an exemption under the
MMAR
. If he could not establish this, he
    could not establish the practical ineffectiveness of the
MMAR
scheme.
    It follows that he could not establish that the defence provided by the
MMAR
is illusory.

[73]

In contrast to
    Mr. Parker, in this case, Mr. Mernagh did not lead expert medical evidence to
    support his application. In particular, he did not lead medical evidence that
    he qualifies for a medical exemption under the
MMAR.
The record
    relating to the patient witnesses who had been unable to obtain medical declaration
    suffers from the same deficiency.

[74]

In our view, in
    the absence of such evidence, it was not open to the trial judge to hold that
    Mr. Mernagh and the patient witnesses who had not obtained medical declarations
    were entitled to exemptions under the
MMAR
. The question of their
    eligibility was fundamentally a medical one. In the absence of expert medical
    evidence to establish that Mr. Mernagh or other patient witnesses without medical
    declarations qualified for an exemption under the
MMAR
, it was simply
    not open to the trial judge to conclude that they did.

[75]

Further, in our
    view, the record in this case did not establish that Mr. Mernagh and the
    patient witnesses failed to obtain medical declarations because of bias or
    arbitrariness on the part of the physicians they consulted. Nor did it
    establish a widespread lack of co-operation with the
MMAR
on the part
    of the Canadian medical profession. Thus, the record does not support the trial
    judges inference that they failed to obtain medical declarations only because
    Canadian physicians are boycotting the
MMAR
.

[76]

In Mr. Mernaghs
    case, he did not consult a specialist when advised to do so in late 2002 or
    early 2003. There is no evidence on the record that he attempted to seek a
    medical declaration between 2003 and 2005, though he did make informal
    inquiries of a prospective family physician in 2006. Moreover, the physician he
    consulted in 2007 could hardly be described as biased and arbitrary or as
    boycotting the
MMAR
given that he specifically wrote a letter
    supporting Mr. Mernaghs use of marihuana for pain relief.

[77]

The record
    discloses that Mr. Mernagh made some efforts to obtain a medical declaration after
    he was charged in this case.  In August 2010, a year after he was diagnosed
    with a seizure disorder, he raised the medical marihuana program with his
    neurologist. The neurologist claimed not to know about the program and advised
    him to return to the hospital that had diagnosed his seizure disorder.  In
    November 2010, Mr. Mernagh asked his family physician for either a medical
    declaration or a prescription for Tylenol 3 and a referral to a pain
    specialist.  His physician agreed to the latter.

[78]

Similarly, while
    there is no dispute that the patient witnesses who had not obtained medical
    declarations all had very serious health problems, their evidence also fell
    short of showing they failed to obtain medical declarations because of a
    widespread lack of co-operation on the part of the medical profession with the
MMAR
.
    One had not even asked a physician to sign a declaration after the 2005
    amendments to the
MMAR
and five others had only asked one physician to
    sign during that time period. Respectfully, these efforts fail to demonstrate a
    profession-wide boycott of the
MMAR
. We also note that five of the
    patients had illnesses for which marihuana may be contra-indicated, meaning
    that the physicians who were consulted may well have had valid medical reasons
    for refusing to sign the declarations.

[79]

These errors in
    the trial judges findings alone require that the appeal be allowed. We now
    turn to an analysis of the trial judges other findings in the light of the
    evidentiary record available.

(2)

The Trial judge Made Factual Findings That Were Not Supported by the
    Evidence

[80]

The Crown
    submits that there was no evidentiary basis for the trial judges finding that the
    defence provided by the
MMAR
is illusory.  More specifically, the
    Crown submits that there was no evidentiary foundation for the crucial findings
    of fact made by the trial judge that formed the foundation for his decision:

·

The patient witnesses were all entitled to obtain authorizations
    to possess marihuana (at para. 205);

·

Many of the physicians who dealt with the patient witnesses acted
    in an arbitrary and biased manner (at para. 160);

·

The medical community in Canada had massively boycotted the
MMAR
(at para. 214); and

·

The vast majority of persons who needed to use marihuana to
    treat serious illnesses had been unable to obtain medical declarations (at
    para. 269).

[81]

We agree that
    the evidence before the trial judge did not support these factual conclusions. 
    The finding that the patient witnesses were entitled to obtain authorizations
    to possess marihuana is effectively answered by our discussion in the previous
    section and does not need to be addressed again.

[82]

The remaining
    three findings challenged by the appellant are related and can be taken
    together.  Respectfully, and as we explain, all three findings were made in
    error and are not supported by the record. We say this for several reasons.

[83]

First, the
    documentary evidence relied on by the trial judge was insufficient to establish
    a boycott.  In concluding that physicians were boycotting the
MMAR
,
    the trial judge referred to some correspondence of medical associations
    expressing their concerns with the physician as gatekeeper system that was
    written during the early years of the
MMAR
.  He did not, however,
    refer to other correspondence in the record indicating that some of those
    concerns had in fact been allayed by the 2005 amendments to the regulations.
[7]
In addition, Mr. Mernagh did not adduce any evidence as to the current or
    recent position of the medical profession on this issue.

[84]

Second, the trial
    judge failed to follow his own hearsay ruling on the admissibility of the
    patient witnesses evidence. The findings that many of the doctors who dealt
    with the patient witnesses acted in an arbitrary and biased manner and that the
    medical community in Canada had massively boycotted the
MMAR
were based
    in large part on the patient witnesses evidence about negative reactions from
    some physicians to their requests for a medical declaration.  With respect,
    there was no admissible evidence as to why the patients requests were refused.

[85]

The physicians
    statements about their reasons for not signing medical declarations, as set out
    in the patient affidavits, were ruled admissible only for the fact that they
    were made and not for the truth of their contents.  The trial judge appears to
    have overlooked this ruling when he prepared his reasons.

[86]

For example, in
    his review of the evidence the trial judge noted:

·

D.D., a British Columbia resident, had been told by many
    physicians in Vancouver that it was the policy of the Vancouver Coastal Health
    Authority to prohibit doctors from signing medical declaration forms (para.
    98);

·

F.F., another British Columbia resident, was told by his general
    practitioner that the physicians medical clinic, the College of Physicians and
    Surgeons of British Columbia and his insurer would not approve of his signing
    (para. 105);

·

T.C., an Alberta resident, was informed by his physician that the
    College of Physicians and Surgeons of Alberta did not permit him to sign the
    form (para. 121); and

·

M.C., a Quebec resident, was told by his physician that he
    refused to sign a declaration and that the Canadian Medical Protect[ive]
    Association discourages the practice in Quebec and treats a waiver of liability
    as ineffective (para. 129).

[87]

To the extent
    that the trial judge used hearsay to prove the truth of what the physicians
    told the patients  i.e. that physicians had been instructed not to co-operate
    with the
MMAR
 he violated his own hearsay ruling. Further, the individual
    examples he cited do not support his generalized conclusion of arbitrariness
    and bias in the medical profession, nor do they support a finding of a boycott.

[88]

In any event,
    evidence that a physician refused to sign a medical declaration for a patient
    who reported that marihuana relieved his or her symptoms is not, on its face,
    evidence of arbitrariness or bias.  Physicians have been fixed with the
    responsibility of being gatekeepers, but they remain bound by their own ethics
    and codes of conduct.

[89]

According to the
    patients evidence, there were also instances where they were treated rudely or
    unreasonably. This was understandably upsetting to the patients and we should
    not be taken as condoning such conduct. However, the evidence fell short of
    demonstrating a
systemic
failure of the
MMAR
regime to
    operate in accordance with the
Charter
.

[90]

Third, the trial
    judge misapprehended documentary evidence about physicians views about
    marihuana. As we explained earlier, the trial judge found that many physicians
    hold a stigmatized view of marihuana.  In addition to relying on the patient
    evidence, he found evidence of stigma in an exploratory study submitted to
    Health Canada in 2007, which was attached as an exhibit to the affidavit of one
    of the two Crown witnesses.

[91]

The qualitative
    study he referred to,
Views of Physicians Regarding The Use of Marihuana
    for Medical Purposes
(Montreal: Les Études de Marché Créatec, 2007),
    involved telephone interviews with 30 physicians who were already involved in
    the
MMAR
process and treating at least one patient using medical
    marihuana. The study was expressly stated to be exploratory qualitative
    research that could not be extrapolated to any population or audience without
    further validation.  While some of the physicians interviewed did raise the
    concern that being singled out as a marihuana-prescribing physician might
    contribute to increased risk of liability and social stigma, this risk was
    perceived as low and concerns tended to disappear over time.

[92]

On the evidence
    before him, a finding that many physicians hold a stigmatized view of marihuana
    was not open to the trial judge and could not support his conclusion that
    physicians were boycotting the
MMAR
.

[93]

A fourth reason
    that the trial judges findings are in error is that he drew incorrect
    conclusions from the statistical evidence. The trial judges conclusion, at
    para. 212, that the number of approved applications is a trickle compared to
    the demand was based on counting the number of physicians who had signed declarations
    each year and dividing it by the estimated number of doctors in Canada to
    arrive at a percentage.
[8]
However, there was simply no evidence in the record about the number of
    physicians who were asked to sign declarations, or about whether the requesting
    patients met the medical criteria. As a matter of simple logic, there is no
    correlation between the number of approved applications and the number of
    physicians in Canada. Many physicians may have areas of expertise that would
    never bring them into contact with this type of patient.

[94]

In contrast, at
    paras. 226 and 227, the trial judge described the Crowns statistical evidence
    to
show that physician participation in the
    program has steadily increased since its inception
as having a
    superficial appeal, but that it lacked an appropriate point of reference.  He
    held that, in the absence of showing how many physicians were practicing in
    Canada and how many physicians were signing or refusing to sign declarations,
    the statistics could not establish the actual effectiveness of the program. 
    The reality is that the same evidentiary deficiency the trial judge described
    here also exists in his finding that the number of approved applications is a
    trickle.

[95]

Similarly, the trial
    judge found that the vast majority of those who needed medical marihuana were
    unable to get physicians to sign declarations.  Again, however, there was no
    direct evidence as to either the number of people in Canada who were
    potentially eligible for medical marihuana exemptions, or who had attempted to
    have declarations signed.  Rather, the trial judge's conclusion appears to have
    been based on a footnote in a paper by an epidemiologist that was filed as an
    exhibit in
R. v. Beren and Swallow
, 2009 BCSC 429, 192 C.R.R. (2d) 79,
    leave to appeal dismissed [2009] S.C.C.A. No. 272, at para. 38.

[96]

The passage
    relied on by the trial judge states the following, L. Belle-Isle,
Cannabis
    as Therapy for People Living with HIV/AIDS, Our Right, Our Choice
,
    (Ottawa: Canadian AIDS Society, 2006) at p. 63, footnote 22:

An estimate of 400,000 medical users in Canada is often cited.
    This estimate is based on one study conducted in Ontario that found that 1.9%
    of the population aged 18 years and over reported that they use marijuana for
    medical purposes. This is most likely an underestimate. In British Columbia
    alone, it is estimated that about 7%, or 290,000 people, use cannabis for
    therapeutic purposes. [Citations omitted.]

[97]

There are
    several reasons why this footnote could not support the trial judge's finding.

[98]

First, the
    position paper was only filed as an adjunct to Ms. Belle-Isle's evidence at
    the
Beren

and Swallow
trial. At that trial, Ms. Belle-Isle
    was not qualified to give expert evidence concerning the number of persons in
    Canada who were entitled to obtain medical exemptions to use marihuana.

[99]

Second, the
    estimates came from sources other than Ms. Belle-Isle and were therefore
    hearsay, not admissible to prove the truth of the estimates.

[100]

Third, and perhaps most
    importantly, the estimate of 400,000 medical users was apparently based on a
    telephone survey of 2,508 adults age 18 or over in Ontario in which 49 people
    reported using marihuana for a medical reason, primarily pain or nausea.
    However, the fact that 49 people said they had used marihuana for some reason
    they considered medical was not capable of supporting a finding that any of
    them qualified for an exemption under the
MMAR
.

[101]

In the final analysis, we agree
    with the appellant that the evidentiary record does not support the trial judges
    findings of fact. It follows that the record is wholly unable to support the
    conclusion that the
MMAR
scheme is illusory because of insufficient
    participation by physicians.  At its highest, the evidence shows that some
    patients, for some reason, were having difficulties finding a physician to
    support their applications.  There is no evidence as to what, if any,
    proportion of physicians who were asked to, but did not, sign a declaration
    should have done so, and no evidence as to why they did not.

[102]

Without such evidence there was no
    way for the trial judge to reasonably assess the efficacy of the regime and
    determine that there had been a boycott. Indeed, with much of the same evidence
    before her, the trial judge in
Beren

and Swallow
found that
    as of 2009 there was no factual foundation to find that physician co-operation
    had declined; in fact it appeared inferentially that it had increased.

[103]

As a result, we conclude that Mr.
    Mernagh and the interveners have failed to prove that access to the medical
    exemption scheme pursuant to the
MMAR
applies to them, or is
    illusory.  Further, the evidence in this case fails to prove that the vast
    majority of physicians in Canada refuse to participate in the
MMAR
scheme.  Finally, there is no basis on which to distinguish the holding of this
    court in
Hitzig
that the gatekeeping role given to physicians in the
MMAR
remains constitutionally sound.

[104]

We agree with the appellant on the
    factual issues and would give effect to these grounds of appeal.  We now turn
    our attention to the submissions advanced by the interveners.

(3)

Additional Issues
    Raised by the Interveners

[105]

Three organizations were granted
    leave to intervene in this case. They were required to take the record as they
    found it and not seek to enhance it with additional facts. Their arguments
    were, therefore, constrained by the lack of evidence on certain key aspects of
    the application.

[106]

The Canadian Civil Liberties
    Association (CCLA) argues that the requirement that physicians attest that
    conventional treatments have been tried or considered, and found to be
    ineffective or medically inappropriate, effectively makes marihuana a
    medication of last resort.  The CCLA submits that this requirement does
    nothing to enhance the states interest, is not a clear legal standard and sets
    up unnecessary barriers that violate the principles of fundamental justice.

[107]

The trial judge dealt with this
    requirement in the regulations in his  s. 1 analysis. He found, at para. 286,
    that the requirement in the
MMAR
for the physician to declare that
    conventional treatments have been tried or considered, and found ineffective or
    medically inappropriate, is an additional barrier that is not minimally
    impairing.  However, there was no evidence before the trial judge from which to
    conclude that this requirement should not form part of the medical
    declaration.  The trial judge substituted his own lay opinion on this point and
    drew an improper inference from a lack of evidence.

[108]

Further, the trial judge erred in
    law on this point.  This issue was decided in
Hitzig
where this court
    stated, at para. 142:

The declaration must say that all conventional treatments for
    the symptom have been tried or considered and why each is medically
    inappropriate.
The requirement for a declaration in this form serves
    substantial and compelling state interests.
First, it serves the state
    interest in protecting the health and safety of its citizens in relation to an
    untested drug. Second, it serves the state interest in complying with
    international conventions aimed at restricting the use of drugs such as
    marihuana save for legitimate medical and scientific purposes. [Emphasis
    added.]

[109]

In our view, this passage from
Hitzig
is a complete answer to the CCLAs argument.

[110]

The British Columbia Civil
    Liberties Association (BCCLA), like Mr. Mernagh, argues that this court
    should uphold the trial judges finding that the
MMAR
defence is
    inaccessible to the point of being illusory. The fundamental problem, the BCCLA
    submits, is that the
MMAR
operate erratically.  It challenges the
    appellants position on the basis that it takes an inappropriately global or
    systemic focus of what is required to render the
MMAR
unconstitutional. In fact, it argues that far less than a boycott is required
    to establish that a defence is illusory for constitutional purposes.

[111]

The BCCLA finds support for its
    position in
Morgentaler
and
R. v. Ferguson
, 2008 SCC 6,
    [2008] 1 S.C.R. 96, as well as the Supreme Court of Canadas recent decision in
Canada (Attorney General) v. PHS Community Services Society
, 2011 SCC
    44, [2011] 3 S.C.R. 134 (
Insite
), which was released subsequent to
    the trial judges decision in this case.

[112]

In
Insite
, the Supreme
    Court of Canada held that the Minister of Healths failure to grant
Insite
an exemption from the
CDSA
violated the s. 7 rights of intravenous drug
    users because it denied them access to a safe injection site that all but
    eliminated the risk of accidental overdose.  It follows, the BCCLA argues, that
    a legislative regime needs to work for every individual that comes within its
    embrace in order to withstand
Charter
scrutiny.  Accordingly, given
    that Mr. Mernagh and the patient witnesses showed that the
MMAR
regime
    does not work for them, the provisions should be struck down.

[113]

We disagree.  The position of the
    BCCLA depends on the existence of an evidentiary foundation that was simply not
    present in this case.  The court in
Insite
had the benefit of a
    detailed factual record; in this case, there was no basis for concluding that
    the regime was not working for Mr. Mernagh or the patient witnesses. In the
    absence of admissible evidence as to whether they qualified for exemptions and
    the reasons for which their requests for declarations were rejected, this court
    cannot accept that the difficulties faced by these individuals render the
    entire
MMAR
regime unconstitutional. We note as well that in its
    recent decision in
R. v. St-Onge Lamoureux
, 2012 SCC 57, 351 D.L.R. (4th)
    381, the Supreme Court of Canada noted, at para. 74, that a defence created by
    Parliament will not be illusory, in the sense of practically unavailable,
    simply because accused persons will rarely be successful in raising it.

[114]

The final set of interveners go
    even further.  Appearing jointly, the Canadian AIDS Society, the Canadian
    HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario argue that
    requiring patients to go to great lengths to get a physician to sign a medical
    declaration is arbitrary, unprincipled and not in accordance with the patients
    rights to procedural fairness.  Physicians, they submit, are acting as agents
    of the state under the
MMAR
and as such should be unbiased, give full
    consideration of the issue and provide written reasons.  They should not be
    able to avoid making a decision and their decisions should be subject to
    review.

[115]

We do not accept this submission. 
    In our view, the
MMAR
require physicians to act as medical
    professionals and not quasi-judicial officials.

G.

conclusion

[116]

For the reasons given above, the
    appeal is allowed, the trial judges orders are quashed and a new trial is
    ordered.

[117]

In light of our decision,
    unfortunately no
Charter
remedy is available for Mr. Mernagh.  We
    trust, however, that in exercising its discretion as to whether to reinstate
    the charge against him, the appellant will take into account that this was a
    test case and a Crown appeal  and that, if the appellant proposes to proceed
    with the charge that it will first afford Mr. Mernagh a reasonable opportunity
    to obtain a medical declaration and an ATP.


Janet Simmons J.A.

H.S.
    LaForme J.A.



Doherty J.A. (concurring):

[118]

I have read the reasons of my
    colleagues.  I also would allow the appeal and uphold the constitutionality of
    the current provisions of the
Marihuana

Medical Access Regulations
,
    SOR/2001-227, as amended (
MMAR
).


I



[119]

Unlike the claimants in
Hitzig
    v. Canada
(2003), 231 D.L.R. (4th) 104 (Ont. C.A.), Mr. Mernagh does not
    challenge the facial constitutionality of the
MMAR
.
[9]
Consistent with this courts analysis in
Hitzig
, Mr. Mernagh accepts
    that Parliament can constitutionally limit access to marihuana for medical
    purposes using a scheme that requires a doctor to provide a declaration in
    support of the request.  Mr. Mernagh also does not challenge any of the
    requirements of the declaration as set out in s. 6 of the
MMAR
.  He
    does not suggest that those requirements are arbitrary, unrelated to the
    purpose of the
MMAR
, or otherwise constitutionally infirm.

[120]

Mr. Mernagh does argue, however,
    that the scheme created by the
MMAR
is unconstitutional because it
    operates in a manner that does not afford realistic access to medical marihuana
    for persons who are entitled to the medical exemption under the terms of the
MMAR
. 
    Mr. Mernagh contends that the medical exemption in the
MMAR
to the
    criminal prohibitions against the cultivation and possession of marihuana is
    illusory because the medical profession, which under the terms of the
MMAR
effectively controls access to medical marihuana, has massively boycotted the
MMAR
leaving the vast majority of persons who are entitled to use
    medical marihuana unable to obtain the necessary exemption. Mr. Mernaghs
    argument focuses on what he describes as the practical reality of the operation
    of the
MMAR
rather than the statutory language used in the
MMAR
. 
    In his submission, the constitutional failing lies not in the words of the
MMAR
,
    but in the way it works.

[121]

This argument was advanced and
    failed in
Hitzig
and
R. v. Beren
, 2009 BCSC 429, 192 C.R.R.
    (2d) 79.  Those cases, while helpful, are not determinative as the argument is
    essentially a fact-driven one.  Mr. Mernagh argues that, on this record, he has
    shown what the claimants failed to show in
Hitzig
and
Beren
,
    that is, that in its actual operation, the
MMAR
fails to deliver a
    constitutionally viable defence based on medical need to the charges of
    possession and cultivation of marihuana.

[122]

I agree that the constitutional
    claim made by Mr. Mernagh is fact-driven.  I also agree with my colleagues that
    on a reasonable reading of the evidence, there is no support for the findings
    that doctors have massively boycotted the
MMAR
, or that the vast
    majority of persons seeking to and entitled to receive medical exemptions
    under the
MMAR
are unable to obtain those exemptions.  Not only does
    the trial record fail to show that the statutory defence to the cultivation and
    possession of marihuana provided by the
MMAR
is unavailable on a
    systemic level, Mr. Mernaghs evidence about his own efforts to obtain the
    necessary exemption prior to being charged in April 2008 come nowhere near
    demonstrating that a medical exemption under the
MMAR
was, for all
    practical purposes, unavailable to him.

[123]

In my view, the trial judges
    appreciation of the evidentiary record was skewed by his misconception of the
    applicable law.  He wrongly took this courts jurisprudence as holding that
    persons who were seriously ill had a constitutional right to use marihuana to
    treat their illness.  In fact, this court has held that there must be a
    constitutionally viable medical exemption to the prohibition against the
    possession and cultivation of marihuana.  That exemption does not, however,
    depend exclusively on the individuals desire to use marihuana, but also
    requires medical oversight of that decision.

[124]

Moreover, the trial judges analysis
    of the record is further undermined by his assumption that any refusal by a
    physician to provide the necessary declaration to persons who were seriously
    ill and received some relief from their symptoms by using marihuana could not
    possibly be medically or professionally justified.  That assumption,
    essentially a medical opinion, is not one the trial judge was entitled to
    make.

[125]

I think my colleagues reasons
    amply demonstrate the two errors I have described above.  I write separately to
    set out my understanding of the approach that must be taken when a party argues
    that a defence to a criminal prohibition, constitutionally valid on its face,
    is illusory in its effect, thereby rendering the related criminal prohibition
    contrary to the principles of fundamental justice and an unconstitutional limit
    on the right to liberty and security of the person guaranteed by s. 7 of the
Charter
.


II



[126]

A legislative scheme that is
    constitutionally unobjectionable on its face may be rendered unconstitutional
    in its effect.  As Chief Justice Dickson explained in
R. v. Morgentaler
,
    [1988] 1 S.C.R. 30, at pp. 62-63:

Even if the purpose of legislation is unobjectionable, the
    administrative procedures created by law to bring that purpose into operation
    may produce unconstitutional effects, and the legislation should then be struck
    down.  In the present case, the appellants are complaining of the general
    effects of s. 251.  If section 251 of the
Criminal Code
does indeed
    breach s. 7 of the
Charter
through its general effects, that can be
    sufficient to invalidate the legislation under s. 52.  [Emphasis omitted.]

[127]

The general effects of
    legislation refers to the way in which the legislation actually operates.  One
    looks beyond the bald terms of the legislation to related administrative
    requirements, procedural rules and governmental policies traceable to the
    legislation which together shape the manner in which the challenged legislation
    actually operates.  For example, when considering the constitutionality of the
Criminal
    Code
provisions creating the crime of abortion and the statutory defence
    to that crime, the court in
Morgentaler
looked beyond the terms of the
Criminal Code
to related provincial health regulations made relevant
    by definitions in the
Criminal Code
which had the effect of
    significantly limiting the availability of abortions.  The general effects of
    the abortion provisions in the
Criminal Code
could not be properly
    assessed by simply reading the legislation.  Evidence of the way the
    legislation actually worked was central to the claim that the legislation was
    unconstitutional in its general effects.

[128]

Legislation that creates crimes
    will inevitably limit an individuals liberty interest under s. 7.  When the
    scheme that creates the crime also provides a defence to the crime, but that
    defence is unavailable for all practical purposes, the crime-creating provision
    which interferes with liberty will be held to be inconsistent with the
    principles of fundamental justice.  Once again, the reasons of Chief Justice
    Dickson in
Morgentaler
, at p. 70, provide an apt description:

One of the basic tenets of our system of
    criminal justice is that when Parliament creates a defence to a criminal
    charge, the defence should not be illusory or so difficult to attain as to be
    practically illusory.
The criminal law is a very special form of
    governmental regulation, for it seeks to express our societys collective
    disapprobation of certain acts and omissions.  When a defence is provided,
    especially a specifically-tailored defence to a particular charge, it is
    because the legislature has determined that the disapprobation of society is
    not warranted when the conditions of the defence are met.  [Emphasis added.]

[129]

The Chief Justice makes it clear
    in
Morgentaler
that a claim that a defence is illusory must address
    the effects of the legislation on a systemic rather than individual level.  The
    claimant must demonstrate that the defence is illusory on that systemic level. 
    If the claimant is successful, the legislation will most often be declared
    invalid under s. 52 of the
Constitution Act, 1982
.
[10]


[130]

It is also clear that a defence is
    not illusory because it is narrowly drawn by Parliament.  The relevant
    constitutional inquiry under s. 7 is not directed at the scope of the defence
    as drafted, but at the practical availability of the defence regardless of its
    scope: see
R. v. St.-Onge Lamoureux
, 2012 SCC 57, 351 D.L.R. (4th)
    381, at para. 79.

[131]

Mr. Mernaghs constitutional
    challenge relies heavily on the reasons of Chief Justice Dickson in
Morgentaler
. 
    Those reasons were in turn relied on heavily by this court in
R. v. Parker
(2000), 49 O.R. (3d) 481 (C.A.).  In
Parker
, decided before the
MMAR
existed, this court held that the criminal prohibition against possession of
    marihuana was unconstitutional absent a viable medical exemption to that
    prohibition.  The court rejected several Crown arguments that various statutory
    provisions and regulations provided a constitutionally acceptable defence.  In
    rejecting some of those arguments, this court applied the illusory defence
    principle of fundamental justice described by Chief Justice Dickson in
Morgentaler
and concluded that none of the provisions provided a medical exemption that had
    any practical value to those seeking the exemption.

[132]

For the purposes of Mr. Mernaghs
    constitutional challenge, I take two important lessons from the reasons of
    Chief Justice Dickson in
Morgentaler
and this courts analysis in
Parker
. 
    First, one must accept the defence as framed in the legislation when determining
    whether the defence is illusory.  A statutory defence to a criminal prohibition
    is not rendered illusory, thereby making the criminal prohibition
    unconstitutional, because that statutory defence does not deliver a defence
    that by its terms the statute was not intended to deliver.

[133]

The
MMAR
is not intended
    to provide access to medical marihuana to all seriously ill persons who decide
    that it is in their best interest to use marihuana to alleviate their
    symptoms.  Nor does the Constitution, as interpreted in
Hitzig
, demand
    a medical exemption framed in those terms.  The
MMAR
provides access
    to medical marihuana to persons who obtain the necessary declaration from a
    medical doctor.  That declaration requires that the physician be satisfied that
    the applicant meets the criteria set out in s. 6 of the
MMAR
.  In my
    view, by requiring the declaration of a physician, the
MMAR
also
    recognizes that doctors will exercise their professional judgment in deciding
    whether to provide a patient with the necessary declaration.

[134]

Because the
MMAR
requires
    that physicians act as gatekeepers to the medical exemption created in the
MMAR
,
    one cannot demonstrate that the defence is illusory simply by evidence that not
    all seriously ill persons who want to use marihuana for medical purposes can
    obtain the requisite exemption.  Access based solely on serious illness and a
    personal decision to use marihuana to mitigate symptoms is not the access
    contemplated by the
MMAR
.  It cannot be said that the failure to
    provide that kind of access renders the defence in the
MMAR
illusory.

[135]

The second lesson I take from
Morgentaler
and
Parker
relates to the nature of the evidence required to show that
    a statutory defence is illusory.  In my view, a party claiming that a statutory
    defence is practically illusory must connect the facts said to render the
    defence illusory to some form of governmental action, be it the terms of the
    legislation creating the scheme or related administrative procedures,
    procedural rules or government policies.  Actions by individuals not
    attributable to the government in any sense which limit the availability of the
    defence in practice cannot, in my view, render the defence illusory in the
    constitutional sense.

[136]

The distinction between
    government-related activity and individual choice is alluded to by Chief
    Justice Dickson in
Morgentaler
.  In considering the operation of the
    abortion-related provisions in the
Criminal Code
, the Chief Justice
    considered not only the legislation as outlined in the
Criminal Code
,
    but also legislation and regulations, both federal and provincial, that
    affected the operation of the
Criminal Code
provisions.  He concluded
    that the overall scheme created by the interaction of the various legislation
    provisions severely limited, and in some places entirely eliminated, the
    operation of therapeutic abortion committees charged with the responsibility of
    authorizing abortions.

[137]

While the Chief Justice went
    beyond the terms of the
Criminal Code
in considering whether the scheme
    provided a real defence to the criminal prohibition against abortion, he also
    observed, at p. 71, that some factors which had the effect of limiting the
    defence, such as personal choice and geography, could not be traced to the
    legislative scheme.  I read the Chief Justice as drawing a distinction for the
    purpose of determining the constitutionality of the provision between limits on
    the operation of a defence that are the product of the terms of the legislation
    and governmental processes and policies, and limits on the defence that are the
    function of individual choice and neutral factors such as geography.  Only the
    former are relevant to a determination of whether the defence is illusory for
    constitutional purposes.

[138]

The second lesson from
Morgentaler
and
Parker
is particularly important here.  To the extent that
    physician non-participation in the
MMAR
can be connected to some form
    of governmental action, it is properly part of the s. 7 analysis as it relates
    to the contention that the
MMAR
does not deliver a truly available
    defence based on medical need.  However, once one accepts that medical
    oversight is a constitutionally valid component of the defence based on medical
    need, individual decisions by doctors, be they decisions concerning
    participation in the scheme as a whole or decisions in respect of individual
    patients, cannot be said to render the defence illusory.  Indeed, the exercise
    of that individual medical judgment is a component of the defence created by
    the
MMAR
.

[139]

If, contrary to what the record
    actually shows in this case, the evidence established that the medical
    profession was refusing en masse to participate in the
MMAR
, that
    would not necessarily make the defence illusory in the relevant sense. 
    Widespread refusal to participate in the
MMAR
by doctors could,
    however, generate a different constitutional argument.  That argument would
    challenge the facial validity of a scheme which placed doctors in the
    gatekeeper role, on the basis that doctors skills and expertise were
    irrelevant to the exercise of the judgment made when determining whether to use
    marihuana to mitigate various symptoms.  To succeed, the argument would have to
    demonstrate that a scheme placing doctors in a gatekeeper role was contrary to
    some principle of fundamental justice such as arbitrariness.  This court
    crossed that constitutional bridge in
Hitzig
.  Mr. Mernagh does not
    ask us to revisit that decision.  Nor does this record suggest we should.

[140]

Returning to the present reality,
    medical oversight is a constitutionally accepted feature of the medical
    exemption defence crafted in the
MMAR
.  I do not see how a defence
    based on medical oversight becomes illusory when doctors actually exercise that
    oversight.
Parker
offers no support for Mr. Mernaghs contention that
    the defence is illusory.

[141]

In
Parker
, the Crown
    argued that persons who wanted to use marihuana for medical purposes could do
    so lawfully through various statutory and regulatory routes.  Three of the ways
    the Crown argued could be used to lawfully access medical marihuana are
    relevant to this appeal.  The Crown contended that persons could obtain a
    prescription for marihuana, seek approval for the use of marihuana by following
    Health Canadas procedure for the approval of new drugs, or obtain approval for
    the possession and use of marihuana under the Emergency Drug Release
    Programme.

[142]

My colleague,
    Justice Rosenberg, after extensive reference to
Morgentaler
, tested each
    suggested statutory source of the medical exemption to the prohibition against
    the possession of marihuana against the illusory defence standard described in
Morgentaler
.  He observed that
    while it was theoretically possible to obtain a prescription for marihuana, the
    uncontroverted evidence indicated that the government would not be favourably
    disposed to any doctor who wrote a prescription for the drug, and that in any
    event, there was no lawful source from which a pharmacist could fill a
    prescription for marihuana.  Justice Rosenberg concluded that the possibility
    of getting a prescription for marihuana under the existing scheme was
    theoretical only.

[143]

Justice Rosenberg
    next considered the new drug approval procedure.  He observed that the many
    governmental requirements controlling approval of any new drug necessitated the
    expenditure of hundreds of thousands of dollars by anyone seeking to obtain
    that approval.  People like Mr. Parker, who lived on social assistance, could
    hardly fund that kind of venture.  Access to marihuana through the new drug
    approval procedure was a practical impossibility.

[144]

Justice Rosenberg
    also rejected the submission that the Emergency Drug Release Programme offered
    any real hope to those seeking to use marihuana for medical purposes.  Under
    that program, an individual could obtain permission to access an otherwise
    non-marketable drug.  The exemption, however, assumed that somewhere, someone
    was licensed to make and distribute the drug.  No such supply existed for
    marihuana.  Justice Rosenberg concluded that the Emergency Drug Release
    Programme offered no real assistance to persons seeking to use marihuana for
    medical purposes.

[145]

In the end, Justice
    Rosenberg had little difficulty concluding that the possibility of obtaining a
    prescription, approval for marihuana as a new drug, or access to marihuana
    through the Emergency Drug Release Programme were all illusory in the sense
    that they were practically unavailable to those seeking to use marihuana for
    medical purposes.  My colleagues findings rested on an evidentiary foundation
    that goes well beyond demonstrating difficulties in accessing the supposed
    defences, or limitations on the defences as framed.  The evidence summarized at
    length by Justice Rosenberg, much of it uncontested and from governmental
    sources, established that the supposed defences relied on by the Crown were, for
    all intents and purposes, unreachable by those who needed them.

[146]

In rejecting the
    Crowns contention that medical marihuana was lawfully available through the
    procedures described above, Justice Rosenberg looked to the actual operation of
    the legislation as affected not only by its terms, but by government policies
    and processes.  He did not, however, suggest that unavailability of medical
    marihuana flowing from decisions made by doctors, pharmacists or other
    non-governmental actors would suffice to render the purported medical
    exemptions illusory.  For example, in explaining why the Crowns argument that
    individuals could obtain prescriptions for marihuana was unrealistic, my
    colleague did not simply suggest that doctors and pharmacists, in the exercise of
    their judgment, might refuse to write or fill prescriptions.  He tied those
    refusals to governmental policies, at para. 155:

[T]he evidence from the government witness was that since
    there is no legal source of mari[h]uana, no pharmacist could fill the prescription
    and that the government would not look favourably upon a physician who
    purported to write such a prescription.

[147]

Much of the
    evidence relied on by Mr. Mernagh to support his claim that the defence in the
MMAR
is illusory does
    not link physician non-participation in the
MMAR
or
    individual refusals by physicians to provide the necessary declaration
with any kind of
    governmental action.  A doctor who refuses to provide the necessary declaration
    because he or she is not satisfied that the criteria in the regulations are
    met, does not feel sufficiently knowledgeable about the effects of marihuana,
    is unfamiliar with the patient, or views the use of marihuana as medically
    contraindicated, is certainly limiting the availability of the medical
    exemption contemplated in the
MMAR
.  However, that
    decision is not
attributable to the government or any form of governmental
    action.  Nor, in my view, can the physician, by exercising the gatekeeping role
    demanded of the physician by the legislation, be said to make the defence
    created by the legislation illusory.  Refusals based on the doctors exercise
    of his or her judgment are inherent in the defence created by the
MMAR
.


III



[148]

Like my
    colleagues, I
would allow the appeal and order a new trial.  I also agree with their
    comments in para. 117
.

Released: DD February 1, 2013                           Doherty
    J.A.


Appendix
    A





SOR/2001-227

Medical Declarations

6.
(1)
          The medical declaration under paragraph 4(2)(b) must indicate, in all cases

(a) the medical practitioner's or specialist's name,
          business address and telephone number, provincial medical licence number and,
          if applicable, facsimile transmission number and e-mail address;

(b) the applicant's medical condition, the symptom that is
          associated with that condition or its treatment and that is the basis for the
          application and whether the symptom is a category 1, 2 or 3 symptom;

(c) the daily dosage of dried marihuana, in grams, and the
          form and route of administration, recommended for the applicant; and

(d) the period for which the use of marihuana is
          recommended, if less than 12 months.

(2) In the case of a category 1 symptom, the medical
          declaration must also indicate that

(a) the applicant suffers from a terminal illness;

(b) all conventional treatments for the symptom have been
          tried, or have at least been considered;

(c) the recommended use of marihuana would mitigate the
          symptom;

(d) the benefits from the applicant's recommended use of
          marihuana would outweigh any risks associated with that use; and

(e) the medical practitioner is aware that no notice of
          compliance has been issued under the
Food and Drug Regulations
concerning the safety and effectiveness of marihuana as a drug.

(3) In the case of a category 2 symptom, the medical
          declaration must also indicate that

(a) the specialist practices in an area of medicine, to be
          named by the specialist in the declaration, that is relevant to the treatment
          of the applicant's medical condition;

(b) all conventional treatments for the symptom have been
          tried, or have at least been considered, and that each of them is medically
          inappropriate because

(i) the treatment was ineffective,

(ii) the applicant has experienced an allergic reaction to
          the drug used as a treatment, or there is a risk that the applicant would
          experience cross-sensitivity to a drug of that class,

(iii) the applicant has experienced an adverse drug
          reaction to the drug used as a treatment, or there is a risk that the
          applicant would experience an adverse drug reaction based on a previous
          adverse drug reaction to a drug of the same class,

(iv) the drug used as a treatment has resulted in an
          undesirable interaction with another medication being used by the applicant,
          or there is a risk that this would occur,

(v) the drug used as a treatment is contra-indicated, or

(vi) the drug under consideration as a treatment has a
          similar chemical structure and pharmacological activity to a drug that has
          been ineffective for the applicant;

(c) the recommended use of marihuana would mitigate the
          symptom;

(d) the benefits from the applicant's recommended use of
          marihuana would outweigh any risks associated with that use, including risks
          associated with the long-term use of marihuana; and

(e) the specialist is aware that no notice of compliance
          has been issued under the
Food and Drug Regulations
concerning the
          safety and effectiveness of marihuana as a drug.

(4) In the case of a category 3 symptom, the medical
          declaration must also indicate

(a) the matters referred to in subsection (3); and

(b) all conventional treatments that have been tried or
          considered for the symptom and the reasons, from among those mentioned in
          paragraph (3)(b), why the specialist considers that those treatments are
          medically inappropriate.

As Amended by SOR/2005-177

Medical Declarations

6.
(1) The
          medical declaration under paragraph 4(2)(b) must indicate

(a) the medical practitioners name, business address
          and telephone number, facsimile transmission number and e-mail address if
          applicable, the province in which the practitioner is authorized to practise
          medicine and the number assigned by the province to that authorization;

(b) the name of the applicant, the applicants
          medical condition, the symptom that is associated with that condition or its
          treatment and that is the basis for the application and whether the symptom
          is a category 1 or 2 symptom;

(c) for the purpose of determining, under subsection
          11(3), the maximum quantity of dried marihuana to be authorized, the daily
          amount of dried marihuana, in grams, and the form and route of administration
          that the applicant intends to use;

(d) the anticipated period of usage, if less than 12
          months;

(e) that conventional treatments for the symptom have
          been tried or considered and have been found to be ineffective or medically
          inappropriate for the treatment of the applicant; and

(f) that the medical practitioner is aware that no
          notice of compliance has been issued under the
Food and Drug Regulations
concerning the safety and effectiveness of marihuana as a drug.

(2) In the case of a category
          2 symptom, the medical declaration must also indicate

(a) if the medical practitioner making the medical
          declaration is a specialist, the practitioners area of specialization and
          that the area of specialization is relevant to the treatment of the
          applicants medical condition; and

(b) if the medical practitioner making the medical
          declaration is not a specialist,

(i) that the applicants case has been assessed by a
          specialist,

(ii) the name of the specialist,

(iii) the specialists area of specialization and
          that the area of specialization is relevant to the treatment of the
          applicants medical condition,

(iv) the date of the specialists assessment of the
          applicants case,

(v) that the specialist concurs that conventional
          treatments for the symptom are ineffective or medically inappropriate for the
          treatment of the applicant, and

(vi) that the specialist is aware that marihuana is
          being considered as an alternative treatment for the applicant.

SOR/2005-177, s. 4.




Appendix
    B



SOR/2001-227

category 1 symptom
means a symptom that is
          associated with a terminal illness or its medical treatment.

category 2 symptom
means a symptom, other than
          a category 1 symptom, that is set out in column 2 of the schedule and that is
          associated with a medical condition set out in column 1 or its medical
          treatment.

CATEGORY
          2 SYMPTOMS





Column
                  1

Column
                  2




Medical

Condition

Symptom




1.

Cancer, AIDS/HIV infection

Severe nausea



2.

Cancer, AIDS/HIV infection

Cachexia, anorexia, weight loss



3.

Multiple sclerosis, spinal cord injury or disease

Persistent muscle spasms



4.

Epilepsy

Seizures



5.

Severe pain

Cancer, AIDS/HIV infection, multiple sclerosis, spinal
                cord injury or disease, severe form of arthritis



category 3 symptom
means a symptom, other than
          a category 1 or 2 symptom, that is associated with a medical condition or its
          medical treatment.

As Amended by SOR/2005-177

category 1 symptom
means any symptom treated
          within the context of compassionate end-of-life care or a symptom set out in
          column 1 of the schedule that is associated with a medical condition set out
          in column 2 or with the medical treatment of that condition.

CATEGORY
          1 SYMPTOMS





Column
                  1

Column
                  2




Symptom

Associated
                  Medical Conditions




1.

Severe nausea

Cancer, AIDS/HIV infection



2.

Cachexia, anorexia, weight loss

Cancer, AIDS/HIV infection



3.

Persistent muscle spasms

Multiple sclerosis, spinal cord injury or disease



4.

Seizures

Epilepsy



5.

Severe pain

Cancer, AIDS/HIV infection, multiple sclerosis, spinal
                cord injury or disease, severe form of arthritis



category 2 symptom
means a debilitating symptom
          that is associated with a medical condition or with the medical treatment of
          that condition and that is not a category 1 symptom.

category 3 symptom
[Repealed, SOR/2005-177, s.
          1]







[1]
One of the interveners does challenge the constitutionality of the
MMAR
on their face. We will deal with
    this issue when we address the interveners arguments.



[2]
Attached as Appendix A to these reasons is a comparison of s. 6 of the
MMAR

as it was at the time of the
Hitzig
appeal and as amended in 2005. 
    Where not otherwise specified, 
MMAR

    in these reasons refers to the current regulations, as amended in 2005.



[3]
Attached as Appendix B to these reasons is a list of the categories of
    illnesses covered by the
MMAR
, both
    prior to and following the 2005 amendments.



[4]

In contrast to Mr. Mernaghs testimony, in his letter, the
    physician said Mr. Mernagh advised the doctor that he suffers from Bipolar
    disease, Fibromyalgia and Chronic pain syndrome.



[5]
Given that this report (released by the Senate in September 2002) pre-dates
Hitzig
and the 2003 and 2005 amendments
    to the
MMAR
, it is of historical
    interest only.



[6]
Depending on the facts of each case, medical evidence might be required to show
    that the applicants security of the person interests are engaged, for example
    where the Crown contests that the applicants illness is of sufficient gravity.



[7]
This included letters from the Canadian Medical Association to the federal
    government in 2004 regarding, among other things, the proposed wording of the
    declaration.



[8]

In this regard, we note that the application judge made
    various arithmetic errors in his calculations. For example, he calculated that
    .012% of doctors practicing in Canada in 2001 had signed medical declarations,
    when the correct figure was actually 1.2%. Further, he stated that assuming
    there were approximately 60,000 physicians in practice in each year between
    1998 and 2010, the number of physicians who signed declarations for patients
    in any one of those years is less than one half of one percent
(0.50%), when the correct figure in each of those years was
    below 4.5%, as seen in the chart at para. 44 above.



[9]
Some of the interveners do challenge the facial constitutionality of some of
    the
MMAR
.  I would reject those
    arguments for the reasons in
Hitzig
,
    as well as the reasons given by my colleagues.



[10]
The courts recognize as well that unconstitutional effects in an individual
    case may give rise to a s. 24 remedy: see
Morgentaler
,
    at pp. 62-63;
R. v. Ferguson
, 2008
    SCC 6, [2008] 1 S.C.R. 96.


