Pot Laws Fall…Again

By Matt Mernagh

It was like winning the World Wrestling Federation heavy weight title or the Stanley Cup. The winning feeling was truly so overwhelming that I didn’t know how to respond. The sensation lasted for days. I think I did pretty good responding to the flood of media coverage. Canada’s legalization court ruling even appeared in a newspaper in New Zealand.

A three year court battle, where my bail included not possessing hydroponic equipment and none prescribed drugs, had come to an end exactly as envisioned. We didn’t just win a little. We smoked our government.

I didn’t realize when we struck down prohibition (possession and cultivation) on Apr. 12, 2011, that the news would get out so quickly. After all, it was the first night of the leaders debate.

The cannabis community didn’t just come to life, it roared to life—immediately. My tweets and facebook updates about the victory party in progress were very noticed. In one day I had over 300 facebook friend requests, because people wanted to know directly what was going on.

Instead of being in court when the ruling came in, I was exactly in the place most fitting to receive the amazing news. I was vaporizing at Vapor Central with friends. We had been waiting since resting our case Feb. 1, when lawyer Paul Lewin called out of the blue to say it’s in. My first thought was that he had a date to be called before justice D.J. Taliano.

“You won,” Lewin said.

I needed the wall to hold myself up. My charge of personal cultivation was permanently stayed. Whew, I’m not going to jail for those 75 plants. Growers in Ontario traditionally receive an 18 month sentence.

“You’re exempt from the marijuana laws. You can grow and possess legally now.” Lewin excitedly informed me. My knees buckled. Not since the 1997 Terry Parker ruling has this happened. How weird is this feeling? The marijuana medicine in my hemp bag that was illegal, suddenly wasn’t.

To catch my breath I gasped, “We won. We won.”

I think it sunk in for Lewin, too, who had put in so many pro bono hours with me. We both started laughing and repeating, “We won. We did it. We won.” It wasn’t just me winning, it was us.

Lewin stopped to tell me we did indeed hit the ganja grand slam we sought when we started our case from the horrible confines of Toronto’s Don Jail, where I was held for 14 days unable to make the $40,000 cash bail. The Don is Canada’s oldest operating jail. So old, it has a historic designation. Those who have been wear it as a badge of honor. Even me, who celled with a convicted rapist.

Fewer of our kind of people, peaceful potheads who just want to grow their own stone, may end up there with my case. At least that’s our goal. We struck down the marijuana law. Not just possession, but growing, too. Coming into effect July 11, 2011. Unreal.

Lewin and I made arrangements to meet up, celebrate, and do some media in the following days, and get the word out. I ended our phone call, raised my hands in the air, and shouted, “I’m legal. I won my court case. We struck down the law in 90 days.” The social media updating began.

I’m the marijuana bureau chief for Toronto talk radio Newstalk 1010. When the phone rang at 6:30, I thought it strange to take a booking. Instead of a show producer, it was the newsroom, congratulating me then asking for a comment. Daily newspaper the Toronto Star had broken the story. Unable to find either Lewin or myself to make sense of the ruling, they spoke to law professor Alan Young who said it was very substantial. In wrestling speak, he put us over.

“Going to be a busy day,” I thought. Day was an understatement, it was a week worth of media. Then another round when the Liberals began talking on the campaign trail about it.

My Medical Marijuana Journey:

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

That’s the opening paragraph to my case. The first half tells the story of 22 people from across Canada, who, like me, are unable to access Health Canada’s legal medical marijuana program. We found people from coast-to-coast.

I discovered marijuana in my early twenties, during college. Already having a prescription for opiates to manage my pain, I didn’t think a joint passed to me at a small gathering of college journalism students would hurt me. How bad could pot be if I was prescribed Demerol? I had it injected in me during hospital stays.

Marijuana made me functional. Sure, I got stoned, but compared to the debilitating stone of opiates, the cannabis high was amazing. I could read a book, do class assignments comfortably, and enjoy people’s company. I went from a struggling student to an “A grade” student—because of ganja. I recognized it was working on my mysterious illness (fibromyalgia). Back in 1993, there wasn’t much happening in regards to marijuana promotion. The words “kush” and “internet” had yet to become popularized.

Marijuana worked great at managing my illness. Yet in 1993, and for people today, scoring or buying bud was a challenge. Calling 10 people to find someone who was selling, to simply manage your illness, is horrific. Your illness doesn’t take a break when your dealer does.

After graduating, I had chance encounter with an old friend. We shared a joint. I confessed pot was helping my illness. He knew I was ill, but I didn’t know he was growing cannabis until he told me, and began to help. I learned to grow, but grow failure happens.

In 1997, I read an article about this fellow, Warren Hitzig, who wanted to sell marijuana to the terminally and chronically ill. We met. I had my doctor fill out the compassion club forms. I became 022 of the Toronto Compassion Centre, the first and oldest dispensary in our city.

Until 2002, I was doing great. A fibromyalgia flare up crippled me for six months. I lost my journalism job, returned to the Niagara Region, not sure what I was going to do with myself. A raid on TCC changed my life. For a day I didn’t know what to do. The following day I called Toronto alt-weekly NOW editor, pitched them my insider tale, and began a new career as a weed writer.

I involved myself organizing rallies, met like minded people, and learned a great deal about marijuana legalization. I had been busted and released numerous times on petty pot offences. Night in jail. Bail. Charges withdrawn. Not this time…

A Three Year Court Battle:

My case wove through the court over a period of three years. The pre-trial got hung when the Health Canada medical marijuana director refused to testify, citing the rape victim act. Essentially, the agency tried to play the victim of over zealous defense lawyering. It failed miserably. The judge ordered them to answer our questions. Boxes of documents would arrive exactly at 5 p.m. the night before we were due back in court. It dragged on.

In the fall of 2011, I began working in Paul Lewin’s office a few hours a day, interviewing potential witnesses. We probably interviewed each witness about a 12 times, then wrote affidavits. Lewin taught me the basics of writing affidavits. Overall, we found 22 witnesses from across Canada to demonstrate this was a nationwide problem. Not just a small community or provincial problem, but a national problem. We worked very hard on our case.

Day one of the trial opened with a crown argument that the courts had already heard our case in R v. Hitzig. Therefore, why here it again. The court of appeal had ruled on the issue of “doctor as gatekeeper.” Lewin fought hard. If we lost this point, our whole case would have gone up in smoke. The judge listened for a day and half to arguments on whether the case should proceed. Ultimately, he ruled in our favor.

We called three of our best witnesses. Flying in KG from Alberta to testify to her horrible problems seeking a doctor to sign her papers in Stephen Harper’s neck of the woods. EC drove in from an hour and half away. Just for asking for medicinal marijuana, she lost her drivers license for several months. A doctor reported her to the Ministry of Transport who suspended her driving privileges. She found a doctor, who signed her application, with the news arriving the day the doctor made her medicinal use legal by signing the forms. WW took the train. He was amazing. A dignified fellow who doesn’t want to rock the boat by asking numerous doctors. He wants his own doctor to sign. Health Canada did such a poor job performing on the witness stand that Justice Taliano opted to believe our evidence vs. the government. I think that speaks volumes of our efforts to find witnesses.

The amount of support we received for our efforts was awesome. We mounted a massive case because so many people got behind our efforts. An incredible volume of materials was created. We really worked our networks. I think I called in every favour I had from coast to coast.

The next phase in our case will be arguments before the Ontario Court of Appeal. I was served a week after the ruling came out. We’re seeking a quick date before the three Justices.

This has gone on long enough.

Matt Mernagh is a Toronto based writer, activist, and is currently touring and accepting bookings for No Medical Marijuana Card Required.


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