Vendredi dernier, la Cour d’appel de l’Ontario a rendu sa décision de 60 pages dans l’affaire R. v. Mernagh. La décision pose la question examine si les dispositions donnant un droit d’accès à la marijuana médicale sont inconstitutionnelles parce qu’il prive M. Mernagh de son droit d’accès à la marijuana médicale pour sa maladie grave et débilitante.
Voici les passages que nous jugeons importants :
 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 judge’s subsequent legal analysis.
 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.
 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.
 In contrast to Mr. Mernagh, in Mr. Parker’s case he did not simply present anecdotal evidence that he was seriously ill and that marihuana alleviated his symptoms. Mr. Parker’s 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.
 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.
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. Mernagh’s 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.
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. Mernagh’s 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.
In my view, the trial judge’s appreciation of the evidentiary record was skewed by his misconception of the applicable law. He wrongly took this court’s 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 individual’s desire to use marihuana, but also requires medical oversight of that decision.
Moreover, the trial judge’s 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.
L’approche qui doit être suivie lorsqu’une partie prétend qu’un moyen de défense à une interdiction criminelle, constitutionnellement valide à première vue, est illusoire sur le plan de ses effets.
[…] 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.
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,  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.]
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”.
Legislation that creates crimes will inevitably limit an individual’s 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 society’s 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.]
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.
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.
For the purposes of Mr. Mernagh’s constitutional challenge, I take two important lessons from the reasons of Chief Justice Dickson in Morgentaler and this court’s 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.
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.
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.
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.
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.
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.